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Analysis

Kavanaugh Could Narrow Ban on Foreign Money in Elections

A 2011 opinion raises concerns.

July 10, 2018

Brett Kavanaugh, Pres­id­ent Trump’s nominee for the open seat on the Supreme Court, is going to be asked a lot of ques­tions in the near future. One import­ant line of ques­tion­ing will be whether he believes that the Consti­tu­tion blocks Amer­ica’s elec­ted lead­ers from protect­ing our demo­cracy from foreign attacks. An opin­ion he wrote in a 2011 case gives cause to wonder.

The issue is far from academic. Russia boldly attemp­ted to influ­ence the outcome of the 2016 pres­id­en­tial elec­tion with, among other things, ad buys on popu­lar websites like Face­book and Google. Intel­li­gence offi­cials warn that they’ll be back for the midterms and in 2020. Other coun­tries may be inspired by the Krem­lin’s example.

Besides hold­ing hear­ings, Congress has done noth­ing to address this threat. Some states have shown lead­er­ship by increas­ing trans­par­ency for elec­tion ads online, which is neces­sary to deter foreign meddling and helps law enforce­ment catch foreign trolls. Mary­landNew York, and Wash­ing­ton have all beefed up their regu­la­tion of online polit­ical ads, and a bill is moving through the Cali­for­nia Legis­lature. 

The courts’ role in national efforts to protect Amer­ican elec­tions from foreign spend­ing has been some­what complic­ated. On the one hand, courts have upheld the ban on foreign­ers spend­ing to influ­ence elec­tions and the disclos­ure require­ments that help enforce it. On the other hand, the Supreme Court’s dereg­u­lat­ory decisions have opened the door to spend­ing by “dark money” groups that don’t reveal their donors — giving foreign powers a place to hide poten­tially unlim­ited spend­ing.

The issue has been lurk­ing for years. Just days after the Supreme Court decided Citizens United, Pres­id­ent Obama predicted the opin­ion would “open the floodgates for special interests — includ­ing foreign corpor­a­tions — to spend without limit in our elec­tions.” The remark famously promp­ted Justice Samuel Alito to mouth “not true.” Yet foreign money has turned up in some dark money groups’ coffers, and the FBI is currently invest­ig­at­ing whether the National Rifle Asso­ci­ation’s dark money arm was used by Russi­ans connec­ted to the Krem­lin to spend on the last elec­tion.

As a judge on the D.C. Circuit Court of Appeals, Kavanaugh has played an import­ant role in these legal devel­op­ments. In a 2011 case called Bluman v. FEC, he wrote an opin­ion uphold­ing the ban on foreign spend­ing. Two Cana­dians chal­lenged the ban on First Amend­ment grounds, arguing they should be allowed to contrib­ute to state and federal candid­ates. Kavanaugh wrote that the Supreme Court has consist­ently allowed foreign citizens to be excluded from the processes of demo­cratic self-govern­ment, so it’s permiss­ible for the govern­ment to block foreign­ers from spend­ing to influ­ence Amer­ican voters.

But in the course of uphold­ing the ban, Kavanaugh signaled he would narrow it. He went out of his way to say that he inter­prets the ban to apply only to spend­ing on messages that expli­citly call for a vote one way or the other, despite the broad language of the stat­ute. That would leave foreign­ers free to spend on “issue ads” designed to influ­ence the elec­tion without expli­citly saying so. 

Yet the vast major­ity of the social media ads bought by Russian trolls in 2016 to inter­fere with the elec­tion avoided expli­citly telling audi­ences who to vote for. For example, many ads criti­cized Hillary Clin­ton as not trust­worthy or a crim­inal without mention­ing the elec­tion. Others sought to capit­al­ize on African Amer­ic­ans’ polit­ical frus­tra­tions to discour­age black turnout without mention­ing any candid­ate.

Lawmakers should be able to regu­late this type of sham issue ad to protect elec­tions from foreign inter­fer­ence. Senat­ors’ respons­ib­il­ity to provide “advice and consent” on Kavanaugh’s nomin­a­tion to the Supreme Court requires them to invest­ig­ate the candid­ate’s beliefs on the consti­tu­tion­al­ity of a broad foreign spend­ing ban. They should ask: Does his opin­ion in Bluman imply that he believes the Consti­tu­tion prevents the Amer­ican govern­ment from protect­ing its elec­tions from Russian trolls and their copycats, even if they don’t expressly tell people who to vote for? 

(Photo: Think­stock)