By Stuart McPhail
July 13, 2017

This week, we learned of a bombshell in the ongoing Russian-collusion saga:  the president’s son, Donald Trump Jr., as well as his son-in-law and adviser Jared Kushner and former campaign manager Paul Manafort met with a Russian national to get dirt on Hillary Clinton, as “part of Russia and its government’s support for Mr. Trump.”  While the meeting presents a number of important questions, one area of focus has been the issue of whether Trump’s team solicited, received, or directed a contribution from a foreign government, in violation of federal campaign laws.  While there is no evidence Russia provided money to Trump’s campaign, election law experts point to the fact that a contribution may be “anything of value,” and opposition research like that promised to the Trump team is something of immense value to campaigns.

While President Donald Trump’s defenders are furiously working to explain or excuse these events, one response has been floated to this particular charge:  the ban on receipt of foreign contributions is unconstitutional.

The argument is still forming, but one incarnation argues that because the contribution is in the form of information–i.e., speech–it is unconstitutional to ban its delivery to the Trump campaign.

One hurdle for this argument is that the Supreme Court recently upheld the ban on electioneering by foreign nationals by unanimously affirming the unanimous decision of a three-judge panel.  In that case, Bluman v. FEC, two foreign nationals wanted to distribute campaign literature, arguing that so long as their actions were not coordinated with the campaigns, they could not be prohibited under Citizens United (the infamous 2010 decision which found a corporation’s non-coordinated electioneering was protected by the First Amendment.)  All of the judges to consider the case rejected their argument, however, upholding the total ban on foreign national campaigning.

Those coming to Trump’s defense nonetheless argue that Bluman only means that foreign nationals do not have First Amendment rights themselves and the courts only considered restraints on foreigners.  Here, however, the law would be applying to US nationals and that, according to these apologists, makes all the difference.  The law here is working to bar Trump’s team from receiving the information, they argue, and therefore it harms their First Amendment rights to receive speech.

Except that fails to distinguish Bluman.  The law at issue there barred the foreign nationals’ expenditure on campaign material, and thus it not only denied the speakers their ability to speak but also denied their audience–which presumably would include numerous US citizens–the ability to hear that speech. The court didn’t simply find that the foreign nationals had no standing to raise a First Amendment argument.  Rather, it found these individuals were “outside of [the American political] community” and thus had no legal right to “influence voters,” meaning those voters also enjoyed no right to be influenced by those foreign nationals. Those voters’ First Amendment interest in hearing that speech and being influenced was just as impacted as Trump Jr.’s interest in hearing the speech of Russian provocateurs, yet the courts were unconcerned.

The defenders next step is to argue that Bluman, despite being unanimous, was wrongly decided.  In essence, to defend President Trump, these individuals now argue that foreign governments have a legal right to influence our elections–and not even just by electioneering independently of a campaign, but by directly contributing to candidates and parties.

Of course, for these defenders, this is merely a continued application of the rationale behind Citizens United and other similar cases.  While Citizens United doesn’t protect Trump’s teams’ actions–the case dealt with independent corporate spending and did not question the government’s interest in combating corruption resulting from direct contributions to candidates like Russia’s contribution to Trump’s team–the case is part of a larger project to dismantle all regulation of campaign spending.  And if you believe that the First Amendment protects not only your right to speak, but your right to spend any money or engage in any other conduct to advance that speech free of government restraint, then one might think foreign nationals and governments should have that same ability.  After all, as stated in the opinion from Citizens United, “[t]he identity of the speaker is not decisive in determining whether speech is protected.”  If Trump has the right to listen to the Russian government’s dirt on Clinton, voters would presumably have the right to listen to the Russian government’s campaign propaganda.

But there’s a reason every judge in Bluman voted to find the First Amendment does not protect foreign nationals’ spending to influence elections.  At least with respect to foreign spending, it’s clear that a government ban on their electioneering is not a ban targeted against foreigners’ speech, it is a ban targeting the corrupting influence of the money spent in aid of a candidate.  The harm is not that a foreign government’s electioneering may or may not prove persuasive, but that elected officials will work to serve the interests of those foreign governments to keep their money flowing rather than work to protect the interests of the American people.  Indeed, it is irrelevant that the money is spent on speech at all:  so long as it’s spent on something valued by a candidate–whether its a campaign flier or opposition research–then it creates a risk of corruption that may be constitutionally regulated.

When we recognize that campaign finance laws don’t target speech, they target money (or other valuable items), we can see that it’s irrelevant if the money comes from foreign governments or comes from domestic corporations.  Money corrupts and the public may legitimately combat that corruption.  Every judge in Bluman recognized that fact.  We’ll see if judges ever get to reach the same conclusion with regard to the three Trump associates.