A Russian company accused by special counsel Robert S. Mueller III of being part of an online operation to disrupt the 2016 presidential campaign is leaning in part on a decision by Supreme Court nominee Brett M. Kavanaugh to argue that the charge against it should be thrown out.
The 2011 decision by Kavanaugh, writing for a three-judge panel, concerned the role that foreign nationals may play in U.S. elections. It upheld a federal law that said foreigners temporarily in the country may not donate money to candidates, contribute to political parties and groups, or spend money advocating for or against candidates. But it did not rule out letting foreigners spend money on independent advocacy campaigns.
Kavanaugh “went out of his way to limit the decision,” said Daniel A. Petalas, a Washington lawyer and former interim general counsel for the Federal Election Commission…
The Supreme Court affirmed the decision in 2012 in a one-sentence order, without noted dissent or scheduling the case for a hearing. The Obama administration had asked the opinion be affirmed, arguing in a brief that the federal law was narrowly tailored to respect the speech rights of foreigners.
Neither the law in question “nor any other provision of federal law prohibits foreign nationals from speaking out on issues of public policy,” wrote Solicitor General Donald B. Verrilli. “The statute thus leaves open . . . a broad range of expressive activity, from contributing to issue groups, to creating advocacy websites, to funding mass television advertising.”
The exceptions, said Richard Hasen, an election-law expert at the University of California at Irvine, create “potentially a huge loophole for foreign and undisclosed issue ads on federal elections.”