On Kavanaugh and Campaign Finance (and Allowing Foreign Interference in Our Elections): Methinks the Bopp Doth Protest Too Much

The National Law Journal has an interesting article on Jim Bopp sending a letter to President Trump and VP Pence arguing against Judge Brett Kavanaugh for SCOTUS on grounds that he’s not deregulatory enough when it comes to campaign finance reform based on his opinion in the 2010 RNC v. FEC case . It is of a piece with new WaPo reporting suggesting that Kavanaugh is not strong enough for social conservatives. On that general point, I agree with Lawrence Hurley that “Of course all this could work in Kavanaugh’s favor because senators can then claim he is a moderate.”

Judge Kavanaugh is no moderate. I discuss his views of textualism in my book on Justice Scalia’s legacy. On the campaign finance point, let’s not forget that Judge Kavanaugh was the author of Bluman v. FEC, the case that upheld the ban on foreign spending in elections. While that might look like a ruling against deregulation, in fact it is not. Indeed, I believe that a Justice Kavanaugh could well vote with a new SCOTUS majority to hold that laws effectively limiting foreign influence in our elections violate the First Amendment.

As I explained in Politico:

Bluman is the authority for the principle that a ban on foreign electioneering does not violate the First Amendment. But in a part of Bluman that has not been much noticed, the three-judge court construed the statute barring foreign election spending to apply only to express advocacy (“Vote for Obama”), not to issue advocacy (“Tell Hillary to show us her emails”). The district court held it had to read the statute this way thanks to another Roberts Court opinion, which held that reading the issue advocacy test broadly would violate the First Amendment. In other words, as the lower court understood the statute, Bluman legally could have spent millions of dollars promoting President Obama’s reelection effort, so long as he avoided the magic words of advocacy or the “functional equivalent” of express advocacy.

We don’t yet have the language of a Klobuchar-Warner bill that would apparently extend the definition of electioneering communications to cover foreign spending on Facebook and other digital media ads, but if that language is broad, the same conservative Supreme Court that brought us Citizens United could hold that the First Amendment prevents Congress from regulating any foreign spending on elections that is not the functional equivalent of express advocacy. The Court’s newest Justice, Neil Gorsuch, has already shown himself to be skeptical of campaign finance limits.

The result would be that any broader foreign spending ban would be wholly ineffective. For example, it appears that during the 2016 election, Russian-government backed advertising pushed Trump rallies in 17 cities in Florida and targeted immigration and same-sex marriage messages to voters in key Midwestern states. It also stirred up anti-Muslim sentiment and controversy over the Black Lives Matter movement. These ads likely would not be considered express advocacy or its functional equivalent, and therefore Congress might lack the power to ban them as the Supreme Court understands the First Amendment—even though they were purchased by foreigners.

That result, of course, would be absurd.

And as I explained in Slate:

As I explained in Politico back in September, while the federal courts have upheld laws banning foreign nationals from spending money to try to influence our elections, the laws have been interpreted to bar only “express advocacy”—ads that might say “Vote Trump” or otherwise expressly advocate for the support or defeat of a particular candidate—and not ads which avoid those magic words. The exception to this, thanks to the McCain-Feingold campaign finance law of 2002, is for certain ads (called “electioneering communications”) broadcast close to the election on TV or radio which feature a candidate’s name or likeness. So foreign nationals could not call Hillary Clinton “Satan!” in a radio ad broadcast close to the election (and Americans paying for such ads have to disclose their identity).

The rub, however, is that it was likely perfectly fine for the Russians to put such ads on the Internet and social media. As I explain in a forthcoming paper in the First Amendment Law Review,soon after the Supreme Court decided the 2010 Citizens United case, freeing corporate money in U.S. elections, a three-judge district court in a case called Bluman v. FECupheld the federal law barring foreign spending in U.S. elections.

Crucially, however, the court read the spending ban to apply to express advocacy and not to “issue ads” like “Hillary is a Satan.” The court did so because a broader interpretation may have run into First Amendment problems that the conservative Supreme Court had flagged in the past. The Supreme Court summarily affirmed Bluman, meaning it agreed without issuing an opinion that the three-judge court decision was right (though not necessarily all of its reasoning). The upshot is that there is potentially a huge loophole for foreign and undisclosed issue ads on federal elections.

Indeed, Bluman means that some of the ads flagged in Mueller’s indictment in Paragraph 50 may not violate federal election law at all. And this may explain why Mueller did not bring any direct election-related charges, instead offering a broad conspiracy charge which included violation not only of federal campaign finance laws but also of the law requiring foreign agents to register with the government. Some of the conduct in the indictment may not be illegal at all.

As for RNC v. DNC, that was a case on contribution limits where J. Kavanaugh was bound by Supreme Court precedent, and tells us very little about where he would be as a Justice of the Supreme Court.

Having read Bluman and studied J. Kavanaugh’s writings in this and related areas, to me the only question is whether he’d be more like Justice Scalia (voting to strike down more and more campaign limits) or like Justice Thomas (voting to do that AND strike down campaign finance disclosure laws).

Share this: