//  9/5/18  //  Commentary

In the 2016 elections, we were hacked.  I don’t mean the breach of the DNC systems, serious as that was.  And I don’t mean intrusion into the mechanics of casting and counting ballots: media frenzy aside, that structure mostly held up.  Someone broke into two states’ voter registration databases, poked around, and left – but there’s no indication that any registration or vote was changed, anywhere in the country. 

What I mean is that we, the people, were hacked.  Entities of a foreign nation-state figured out what we cared about, and what we fought about, and turned the volume up to 11.  We were hit by true “crisis actors”: agents pretending to be who they were not, not in the aftermath of crisis but in an attempt to foment it.  They invaded our social spaces, with a specific eye to disrupting the election conversation.  And because of a 2011 case called Bluman v. FEC, written by Judge Brett Kavanaugh, much of it may have been legally authorized.

If there’s a voting case that Senators should be focusing on this week, it’s Bluman.  It’s actually not the case’s substantive connection to a Russian threat that should catch the Senate’s eye.  Instead, it’s Judge Kavanaugh’s judicial process.  The opinion, written for a three-judge trial court, shows little respect for the Supreme Court.  It shows little respect for Congress.  And it shows little respect for deep analysis.  Instead, it offers a simplistic answer — what amounts to little more than a policy preference — to a series of what should have been hard questions.

Bluman concerned a federal statute — now codified at 52 USC § 30121 — prohibiting foreign engagement in the election process.  The statute prohibits those who aren’t citizens or legal permanent residents from giving anything of value to a candidate or party.  And it prohibits those same individuals from spending any money for the purposes of influencing an election.  The accompanying regulations even prohibit indirect foreign participation in the process of making decisions about contributions or expenditures.  The ban is — or, rather, was — quite sweeping.

Bluman, confronting a challenge by two noncitizens temporarily residing in the country, upheld much of the statute.  Regulation of these individuals’ electoral engagement was permissible, said Judge Kavanaugh, because they are not part of the “American political community.” 

That conclusion may be right.  But the year after Citizens United, it was hardly dispositive.  In the way that mattered to the Bluman court, most for-profit corporations aren’t part of the American political community either.  Not even Mom’s Apple Pie Company, The Coca-Cola Company, or Yankee Global Enterprises.  The Supreme Court still found their speech sufficiently valuable for American listeners that it struck down a federal ban. 

For a court grappling with a ban on foreign electoral speech, the issues raised by Citizens United should have been front and center.  But in Bluman, Citizens United is little more than an afterthought: a courtesy mention followed by copious handwaving.  Judge Kavanaugh cited the Citizens United dissent.  He spent not a moment on the majority, or the implications for federal courts of his former boss’s robust view on the treatment of speech in the electoral environment.

But Bluman’s blithe treatment of precedent pales in comparison to its blithe treatment of congressional will.  Judge Kavanaugh gutted much of the statute before he preserved it. 

The statute at issue prohibited the direct or indirect making of “an expenditure, independent expenditure, or disbursement for an electioneering communication.”  It’s hard to dig into the difference without getting stuck in the weeds, but that’s essentially a belt-and-suspenders approach to prohibiting all foreign spending intended to influence an election. 

Bluman threw out the belt and one strap of the suspenders.  Per the court: “This statute, as we interpret it, does not bar foreign nationals from” spending money on “speech that does not expressly advocate the election or defeat of a specific candidate” — like, say, a Russian ad in Ohio touting “Hillary 4 Prison” — or giving to groups who aren’t engaging in such express advocacy.  The opinion continued with two more sentences explaining the contours of its interpretation.  But it never explained the reason for downsizing the statute.  Not even in passing.

The interpretation certainly didn’t flow from the text of the statute itself.  Those words are exceedingly broad.  There’s simply no reasonable way to read them to be confined to express advocacy alone.

It’s more likely that the cramped interpretation came from constitutional concerns.  An earlier SCOTUS decision adopted a similar approach in a different part of the statute, to address concerns about that provision’s vagueness.  Those concerns are legitimate.  But that earlier case — Buckley v. Valeo — was about citizen speech.  It’s not at all clear that First Amendment doctrines about vagueness or overbreadth apply to the speech of nonresident noncitizens, or that they apply in the same way.  They might.  They might not.  As with the application of Citizens United, these questions are hard.  Bluman ignored them entirely. 

But the most galling part of Bluman’s drive-by statutory vivisection is that it was completely unnecessary.  The two Bluman plaintiffs sought to contribute to candidates and to spend money on express advocacy.  They expressed no interest in any part of the statute that Judge Kavanaugh casually tossed aside.  The court had no need to opine on the remaining statutory expanse.  It simply poked a sizable unexplained hole in Congress’s handiwork because it felt like poking a hole.

Whether the outcome is right or wrong, the Bluman approach to both precedent and legislation is disturbing.  We like to think that judicial opinions rely on the persuasive power of their logic for their legitimacy.  Bluman sprints to a preferred policy outcome while treating difficult legal issues as little more than speed bumps.  The fact that more restrictive and more permissive concerns were both shunted aside without serious engagement makes the decision more politically palatable, but it should give little jurisprudential comfort. 

I don’t know whether Bluman represents Judge Kavanaugh’s usual approach, or an anomaly.  But that question should be top of mind for legislators heading in to their last opportunity to review the work of a judge seeking unreviewable power to review their work in turn.

 


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