The media, along with the campaign finance regulation community, has worked itself up into quite a frenzy with the revelation that Donald Trump, Jr. had a meeting with a Russian in June, 2016. Of course, they insist, there is more to it, and that Trump may have solicited an illegal foreign campaign contribution in taking this meeting because he was informed he would receive information about Hillary Clinton:
The alleged illegal contribution would be any opposition research that [Natalia] Veselnitskaya purported to have about Clinton. Campaign finance law defines ‘contribution’ broadly. In this case, the opposition research would qualify as an illegal in-kind contribution.
Unfortunately, as is often the case in political law, the First Amendment is getting, at best, short shrift.
Until now, the campaign finance implications of the Trump/Russia inquiry have largely stayed in the periphery. Bob Bauer is supportive of an investigation into the campaign in a series dating back to early June. His first post centers on current law and Federal Election Commission (FEC) regulations against foreign campaign spending, documenting their development in the mid-1990s and establishing that the prohibition is meant to be broad, even so far as to regulate valuable information. Other than Bluman v. FEC (more on that in a moment), however, Bauer offers little in the way of case law—where broad campaign finance prohibitions often die in application.
In a post Monday, Bauer followed up with his thoughts the latest revelations, again emphasizing the law’s breadth. To his credit, he still reserves final judgment, but is nevertheless supportive of the law’s reach: “What is becoming increasingly clear is that Mr. Trump and his campaign were open to whatever help the Russians would provide: they made that clear to the Russians, and took specific actions to invite and receive this foreign national assistance.”
Setting aside legal jargon and regulatory righteousness, the reactions of Donald Trump, Jr. and his attorney are appropriate, amounting to a collective “huh?” Simply: someone with past ties to President Trump claimed to have information that would benefit his campaign, and Trump, Jr. took a meeting to get to the bottom of it. By his account, it amounted to very little. Now, over a year later, scandal du jour and (yet another) complaint to the FEC and the Department of Justice. If the law reaches so far as to penalize this, the problem lies not with those who are breaking it.
Returning to Bluman v. FEC, a cornerstone of Bauer’s First Amendment discussion, it is important to qualify the case. It was a pre-enforcement challenge to the foreign ban, brought by two plaintiffs in the United States on temporary visas. Notably, one of the plaintiffs not only wanted to contribute money to candidates, but to make minimal expenditures on independent political speech, including to “print flyers supporting President Obama’s reelection . . . to distribute . . . in Central Park.” A three-judge panel, sitting by designation in the D.C. District Court, upheld the foreign ban against all of these activities, and the Supreme Court summarily affirmed the judgment. Given the breadth of the ruling, one might be sympathetic to Bauer’s argument that the breadth of the foreign ban has been tested and upheld. But the current brouhaha does not focus on Natalia Veselnitskaya or any other Russians, but on President Trump, his campaign, and his son—American citizens across the board.
It might be appropriate to dismiss First Amendment protections when dealing with foreign nationals (I maintain some reservations about Bluman); the same cannot be said of Americans. Specifically, the First Amendment requires any court (and bureaucrats and prosecutors, for that matter) to scrutinize the reach of laws over Americans’ political activity. This includes the strictest tests of vagueness and overbreadth. As with Trump’s public statements supporting the publication of John Podesta’s hacked e-mails, absent actual collusion (such as, say, arranging to receive actual foreign funds through a straw donor), there is nothing wrong with pursuing (moreover, publishing) information from a third party. On the current record, if Trump, Jr.’s meeting is cause for charges, or even an investigation, then the threat to American political campaigns is one that can only be foreclosed by never meeting with a foreign national.
Bauer borrows from Bluman: “At stake was ‘part of the sovereign’s obligation to preserve the basic conception of a political community.’” Bluman itself noted, however, as opposed to foreign nationals, that “minors, American corporations, and citizens of other states and municipalities are all members of the American political community.” The breadth of the foreign campaign ban, as Bauer and others define it, is a threat to the free flow of information. Its imposition of civil or criminal penalties on American citizens for taking a meeting—an activity that most still instinctively recognize as a fundamental part of our “conception of a political community”, and not a threat to it—cannot be justified as a prophylactic measure against foreign involvement in elections.