Ellen L. Weintraub, a commissioner on the Federal Election Commission, writes:

Among many other recent developments not likely on anyone’s 2020 bingo card, a Supreme Court decision about foreign aid and legalized prostitution has shattered perceived constraints on the authority of the United States to robustly defend its elections against foreign interference.

This summer, in U.S. Agency for International Development v. Alliance for Open Society International, the Supreme Court, in a 5-to-3 decision, with the majority opinion written by Justice Brett Kavanaugh, ruled that the U.S. government can compel overseas public health organizations that receive U.S. foreign aid to publicly oppose prostitution.

Yet Justice Kavanaugh’s decree — that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution” — is so expansive that it spills into election law, giving federal and state governments ample authority to defend us against the full range of foreign political warfare, without fear of violating the First Amendment.

It is settled law that foreign citizens (and the organizations and governments they comprise) cannot make contributions to U.S. political campaigns, nor can they spend money on communications that expressly advocate for or against U.S. political candidates. But clever adversaries have found ways around these rules.

For instance, the “vast majority” of Russia’s 2016 interference efforts on social media slyly didn’t even mention candidates. As Facebook has explained, foreign actors instead were generally “amplifying divisive social and political messages across the ideological spectrum” — touching on controversial topics about race, immigration and gun rights.

Even the efforts that did relate to candidates weren’t necessarily paid ads. Russia organized pro-Trump flash mobs in Florida and spent millions on a troll farm that set loose an army of propaganda-bearing bots on social-media platforms. Russia went so far as to organize both sides of a June 2016 protest at a mosque in Houston. Intelligence experts warn that Russia’s incursions are continuing in this election cycle, with its digital foot soldiers setting up fake news sites and spreading false stories of hacked voter information to cast doubt on the legitimacy of the vote.

I’ve never thought this type of activity was protected by the First Amendment because I have long viewed the reach of the foreign-national political-spending ban to be broad. But some serious legal thinkers have lost sleep over whether a conservative Supreme Court would strike down aggressive efforts to limit such interference on free-speech grounds. [Continue reading…]