Michael C. Dorf // 7/13/17 //
Cross-posted from Dorf on Law
Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant).
Nor is this an essay about whether construing federal election law to forbid the receipt of valuable campaign-related information from a foreign government agent--even if it was lawfully gathered, which Trump Jr., Kushner, and Manafort had no reason to assume Veselnitskaya's proffered information was--can be forbidden consistent with the First Amendment. I agree with Rick Hasen that if there are free speech concerns with some applications of the law under consideration (52 U.S.C. § 30121), the right approach would be either to construe the law so as not to reach such applications or to invalidate the statute as applied, not on its face. Thus, no one should read this essay as a defense of Trump Jr. or anyone else in the Trump campaign.
So what is this essay about? Simply put, I want to suggest that in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.
What is the rationale for our law forbidding foreigners from meddling in our elections? As Prof. Hasen notes in the Slate piece linked above, unlike limitations on domestic campaign finance--which serve an anti-corruption purpose--the foreign contribution ban serves a different (or additional) purpose: It aims to preserve our democracy for, well, us--meaning Americans. That explains why, during the 2010 State of the Union, Justice Alito mouthed "not true" when President Obama characterized the Citizens United decision as "open[ing] the floodgates for special interests--including foreign corporations--to spend without limit in our elections." Justice Alito presumably understood the holding of the case as having no necessary bearing on the foreign money limit, because Citizens United fell within a line of cases construing the government's anti-corruption interest quite narrowly; as the foreign donation limits do not rest on the anti-corruption interest, they do not necessarily fall within the Citizens United rationale.
If that was indeed the thinking behind Justice Alito's 2010 "not true," he had a fair point. At the same time, however, it is worth asking whether, in a world without Citizens United (and also without some of the other campaign-finance cases which apply the same basic framework), it might make sense to rewrite Section 30121. Suppose that the Court had allowed Congress to forbid or seriously restrict corporate independent expenditures (contrary to Citizens United) and to cap individuals' independent expenditures (contrary to the so-called billionaire's exception that goes back to Buckley v. Valeo). Would there then be any need for Section 30121?
In most circumstances, probably not. Foreign corporations as well as domestic corporations could be forbidden from participating in politics using general treasury funds; they could not run ads for or against specific candidates, nor could they provide campaigns with Kompromat. Under the prong of Buckley that allows Congress to limit individual campaign contributions, foreign individuals could be subject to those same limits. And in this bizarro-world, there would be no independent expenditure loophole, so foreigners would be subject to the same (fairly strict) limits as Americans.
To be sure, one might think that even stricter limits--specifically the ban of Section 30121--ought to apply to foreigners, but I regard that as difficult to justify. Foreigners actually do have interests in our elections, because decisions made by governments in the U.S. affect foreigners. Indeed, foreigners are already at a serious disadvantage relative to Americans in that the foreigners don't vote. Subjecting them to the same--in this alternative universe, fairly strict--campaign limits would hardly risk overwhelming our politics with foreign influence.
Foreign governments, however, stand on a different footing. Whereas robust campaign finance limits applicable to both foreign and domestic individuals might suffice to prevent foreign domination or corruption of our electoral system, foreign sovereigns pursuing their own aims could really derail American democracy, even if the dollar value of their activity were kept to a low limit. Foreign governments are, in this view, more like corporations in the view of the Citizens United dissenters (which triumphs in my alternative universe). Their activities would appropriately be banned altogether.
And thus we circle back to Trump Jr., Kushner, and Manafort. Even in a world without Citizens United, one would want their specific conduct--soliciting valuable aid in a presidential election from an agent of a foreign government--to be forbidden.
To put the point somewhat differently, if instead of arranging a meeting with Veselnitskaya acting on behalf of the Kremlin, Trump Jr., Kushner, and Manafort had instead met with a private citizen from Canada who gave them a flattering photograph of Trump Sr. in the hope that the photograph could be used in the campaign, they would be equally guilty (or not) of violating Section 30121. But the hypothetical meeting would be a technical violation of a law that could, in a perfect world, be narrowed considerably. By contrast, their actual conduct would be appropriately forbidden in this and every other plausible alternative universe.
Postscript: By that last sentence, I do not mean to imply that we are living in a plausible universe.