Among many other recent developments not likely on anyone’s 2020 bingo card, a Supreme Court decision about foreign aid and legalized prostitution has shattered perceived constraints on the authority of the United States to robustly defend its elections against foreign interference.
This summer, in U.S. Agency for International Development v. Alliance for Open Society Internatonal, Inc., the Supreme Court, in a 5-to-4 decision, with the majority opinion written by Justice Brett Kavanaugh, ruled that the U.S. government can compel overseas public health organizations that receive U.S. foreign aid to publicly oppose prostitution.
Yet Justice Kavanaugh’s decree — that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution” — is so expansive that it spills into election law, giving federal and state governments ample authority to defend us against the full range of foreign political warfare, without fear of violating the First Amendment.
It is settled law that foreign citizens (and the organizations and governments they comprise) cannot make contributions to U.S. political campaigns, nor can they spend money on communications that expressly advocate for or against U.S. political candidates. But clever adversaries have found ways around these rules.
For instance, the “vast majority” of Russia’s 2016 interference efforts on social media slyly didn’t even mention candidates. As Facebook has explained, foreign actors instead were generally “amplifying divisive social and political messages across the ideological spectrum” — touching on controversial topics about race, immigration and gun rights.
Even the efforts that did relate to candidates weren’t necessarily paid ads. Russia organized pro-Trump flash mobs in Florida and spent millions on a troll farm that set loose an army of propaganda-bearing bots on social-media platforms. Russia went so far as to organize both sides of a June 2016 protest at a mosque in Houston. Intelligence experts warn that Russia’s incursions are continuing in this election cycle, with its digital foot soldiers setting up fake news sites and spreading false stories of hacked voter information to cast doubt on the legitimacy of the vote.
I’ve never thought this type of activity was protected by the First Amendment because I have long viewed the reach of the foreign-national political-spending ban to be broad. But some serious legal thinkers have lost sleep over whether a conservative Supreme Court would strike down aggressive efforts to limit such interference on free-speech grounds.
The source of this doubt was, ironically, a 2011 opinion written by Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. In Bluman v. Federal Election Commission, then-Judge Kavanaugh upheld the federal law banning political spending by foreign nationals but speculated that the ban might not survive constitutional scrutiny if applied to anything but contributions to U.S. candidates or communications that expressly advocate for or against a candidate’s election.
Now, the Supreme Court has told us that the constitutional rights of foreign citizens outside U.S. territory cannot be violated because they have no constitutional rights to violate. Justice Kavanaugh heralded this lack of rights as a “bedrock legal principle.” (Though this comment did draw a sharp dissent from Justice Stephen Breyer, who wrote that the court had long avoided such a “sweeping assertion.”)
Whether or not it was the law before, it is now, and the Supreme Court would be hard-pressed to walk back this paradigm-shifting ruling. The Supreme Court case, then, carries a double punch in election law.
First, it makes clear that those seeking to broaden protections against foreign election interference — including commissioners on the Federal Election Commission — can move forward aggressively without running afoul of the First Amendment.
Second, the case has unlocked the full power of existing law. A Department of Justice interested in doing so could put this new rule of law to work immediately.
The key to this opinion’s paradigm shift is its transformation of a term that doesn’t even appear in the decision: “expenditure.” (This result might surprise even Justice Kavanaugh.)”
Federal law defines an expenditure as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.” And federal law bars foreign nationals from making such expenditures.
Back in 1976, the Supreme Court, in Buckley v. Valeo, sharply confined the scope of the term “expenditure” to include only money spent on “communications that expressly advocate the election or defeat of a clearly identified candidate” — what became known as “express advocacy.” But the court did so specifically to protect “those who seek to exercise protected First Amendment rights.” And, crucially, Justice Kavanaugh’s bold language in the Alliance for Open Society decision makes clear that foreign governments have no First Amendment rights in the first place.
The decision thus restores the term “expenditure” to its original sweep as to foreign nationals, meaning that the law bars not just ad spending aimed at influencing an election result, but any sort of spending that seeks to influence “any election for Federal office” in any way.
Some in Congress had already been taking aim at this sort of influence. Few, though, would have predicted that Justice Kavanaugh would be the one to hit the bull's-eye. Take the PAID AD Act, which was introduced last year with bipartisan support in the House of Representatives. The bill would close loopholes that could allow foreign interests to purchase certain online and TV political ads. Kavanaugh’s opinion shifted the law so far that it turned everything PAID AD hoped to cover — and then some – into an already-prohibited foreign expenditure.
If Vladimir Putin, or any other foreign leader, would like to talk about American politics during a CNN interview, nothing’s stopping him. But if he wants to spend money to influence our elections — by inflaming social divisions, sowing discord, hiring troll farms, hacking campaign computers, suppressing the vote, or by any other means — the legal basis for the government to respond more aggressively is now crystal clear.
Given everything we’ve learned since 2016 about the breathtaking and continuing extent of foreign attacks on American democracy, our government’s response must be strong and unequivocal. And now there’s no excuse for it not to be.
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