I have this guest post over at Concurring Opinions. It begins:

Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.

As I explain in a forthcoming article in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban
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