A Russian company accused by special counsel Robert 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 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 Petalas, a Washington lawyer and former interim general counsel for the Federal Election Commission.
A motion filed by the Russian company this week repeatedly cites Kavanaugh’s decision, bringing new attention to his rulings on campaign finance laws and regulations during his tenure on the U.S. Court of Appeals for the District of Columbia Circuit.
Legal experts who have analyzed his work say he appears to fit comfortably within the high court’s conservative majority, which has found that restrictions on campaign-related spending conflict with the First Amendment’s guarantee of free speech. That argument underpinned the seminal 2010 Citizens United case, which allowed corporations and other organizations to spend unlimited sums on independent political activity.
In the case of the foreign national decision, Kavanaugh said the government would have to prove that foreign nationals had knowledge of the law’s restrictions before seeking criminal charges. And he said the ban did not include foreign spending on “issue advocacy and speaking out on issues of public policy.”
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 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.”
Kavanaugh’s decision has been embraced by Concord Management and Consulting, one of 16 Russian individuals or companies indicted by a federal grand jury in February in connection with allegedly taking part in an “information warfare” campaign aimed at swaying American voters.
The indictment alleged that Concord paid $1.25 million a month to the St. Petersburg-based Internet Research Agency for projects such as setting up rallies for President Donald Trump or various advocacy groups in the United States, creating Twitter and Facebook accounts to spread false information and “to interfere in U.S. political and electoral processes without detection of their Russian affiliation.” The company was charged with one count of conspiracy to defraud the United States.
Concord is alleged to be controlled by Yevgeniy Prigozhin, a Russian catering magnate known as “Putin‘s chef” for his longtime association with Russian President Vladimir Putin. It is the only one of those charged to have responded to the indictments.
In Concord’s motion to dismiss the charge, its attorneys frequently cited Kavanaugh and his 2011 decision in Bluman v. Federal Election Commission.
The lawyers noted that Kavanaugh distinguished between explicitly political ads — those that urge the public to vote for or against a candidate — and “issue ads.”
“Foreign nationals are not barred from issue advocacy through political speech such as what is described in the indictment — they are only precluded from willfully making expenditures that expressly advocate the election or defeat of a particular candidate,” wrote Washington lawyers Eric Dubelier and Katherine Seikaly, who are defending the company, citing the Bluman decision.
It is the second issue related to Mueller’s investigation that is sure to receive attention at Kavanaugh’s confirmation hearing. He said in a 2009 law review article that presidents should not be distracted by civil lawsuits and criminal investigations and that Congress might be “wise” to provide such protection until they are no longer in office.
Like Justice Neil Gorsuch, who also was a Trump nominee, Kavanaugh appears to fit the mold of Justice Antonin Scalia, who joined the court’s conservatives — Chief Justice John Roberts Jr. and Justices Clarence Thomas and Samuel Alito Jr. — as skeptics of the constitutionality of many campaign finance restrictions.
“Based on his opinions and public statements, as a Supreme Court justice Kavanaugh would almost certainly be a reliable vote to overturn campaign finance restrictions in the Scalia/Alito/Roberts mold,” said Andrew Herman, a Washington lawyer who practices campaign finance law.
Even before the Supreme Court decided Citizens United, Kavanaugh wrote for his court in a 2009 case called Emily’s List v. FEC, ruling against regulations that required independent nonprofit organizations to comply with federal contribution limits.
The rules “do not pass muster under the Supreme Court’s First Amendment precedents,” Kavanaugh wrote. “The regulations are not closely drawn to serve a cognizable anticorruption interest. Donations to and spending by a non-profit cannot corrupt a candidate or officeholder.”
A year later, he affirmed rules limiting how much money can flow to political parties — noting that Supreme Court precedent gave him no choice.
In Republican National Committee v. FEC in 2010, Kavanaugh wrote for a three-judge panel in upholding contribution limits on federal candidates and parties. He cited the Supreme Court’s rulings that such limitations are warranted because of the potential for corruption or the appearance of corruption.
In the wake of Citizens United and the advent of super PACs, the RNC said the restrictions left political parties hamstrung.
The RNC position was logical, Kavanaugh agreed. “As a lower court, however, we do not believe we possess authority to clarify or refine [Supreme Court precedent] in the fashion advocated by the RNC, or to otherwise get ahead of the Supreme Court,” he wrote.
Hasen said a big question will be whether Kavanaugh would be skeptical of restrictions on contributions to political parties and candidates on the high court. “I think that we don’t know,” he said.
The Bluman ruling is likely to receive outsize attention in Kavanaugh’s confirmation hearings because it is now being cited in an active case about Russian interference in the 2016 campaign.
As a test case, its facts were rather benign. Benjamin Bluman and Asenath Steiman were foreign nationals living legally and temporarily in the United States.
Bluman, a Canadian, said he wanted to contribute to Democrats running for office, and print and distribute fliers in Central Park supporting President Barack Obama’s reelection. Steiman, a dual citizen of Canada and Israel, said she wanted to contribute to Obama’s eventual Republican opponent and to an independent organization that supports conservative candidates.
Bluman and Steiman said the federal ban on those activities was unconstitutional.
But Kavanaugh and his fellow judges on the panel said the Supreme Court had made it clear that the government may exclude foreign nationals from activities “intimately related to the process of democratic self-government,” quoting a precedent. Contributing to a political party and spending money to advocate for or against a specific candidate are easily included, he wrote.
But he also articulated “three important limits.”
He said the ban might not be applicable to permanent legal residents. Nor should the ruling be read to support bans on foreign nationals spending money to express their views on issues, as opposed to advocating for the election or defeat of specific candidates.
He said that to bring criminal prosecutions, the government must show that the defendant acted willfully in defiance of the law. “There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures, in particular,” he wrote.
Herman said Kavanaugh’s carve-outs show “that he is both being a careful jurist but also indicating to Congress that he would be more skeptical of the types of restrictions referenced in that paragraph. For example, permanent residents’ First Amendment rights might take precedence over more general security concerns.”
Hasen said that Kavanaugh’s decision provides a road map of how he might decide such an issue — finding it improper for a foreign national to finance an ad that says, “Vote against Hillary,” for example, but not one that says, “Hillary is Satan.”
The Washington Post’s Tom Jackman contributed to this report.