Brett Kavanaugh wants to make it easier for foreign cash to flow into U.S. elections. Lawyers for the company accused of funding Russia's troll factory couldn't be happier.
Lawyers representing the company accused of funding Russia's notorious troll factory are preparing for a legal battle with special counsel Robert Mueller — and they've found an ally in Trump's Supreme Court nominee Brett Kavanaugh.
In a motion to dismiss filed this week, lawyers for the indicted Russian company cited a 2011 decision on foreign spending in U.S. elections written by Kavanaugh as the basis for their argument to get the charges dropped.
The company, Concord Management and Consulting LLC, was among the 16 Russian entities indicted in February as part of Mueller's investigation into Russian interference and potential coordination with the Trump campaign.
According to the Department of Justice, the head of Concord Management — Russian citizen Yevgeny Prigozhin, a Putin ally who was also charged in the February 2018 indictment — used his company to finance the activities of the St. Petersburg-based troll factory known as the Internet Research Agency.
Among other things, the Internet Research Agency is accused of creating social media accounts to impersonate Americans and to promote disinformation, divisive political ads, and propaganda. The DOJ also says operatives working at the Internet Research Agency posed as U.S. political activists and even managed to convince Americans to organize and attend political rallies on U.S. soil.
These activities were undertaken "for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016," according to the indictment.
Since campaign contributions and expenditures by foreign nationals are prohibited, the $1.25 million Concord Management is accused of spending on activities intended to influence the 2016 election would violate federal law, as the DOJ lays out in the indictment.
But in a motion to dismiss filed this week with the U.S. District Court for the District of Columbia — the same court on which Kavanaugh sits — lawyers for Concord Management argued that the charges against the company should be thrown out because it "had broken no federal laws" and "was merely supporting free political speech."
To make their case, the lawyers cited Kavanaugh's 2011 decision in Bluman v. FEC, which would restrict the scope of the current federal ban on foreign spending in U.S. elections.
Kavanaugh's narrow reading of the Federal Elections Campaign Act makes a distinction between expenditures advocating for a political issue ("issue advocacy"), which he thinks are permitted under current law, and expenditures advocating for a specific candidate. According to his interpretation, laws limiting foreign influence in U.S. elections violate the First Amendment.
In his view, it should be perfectly legal for Russia and other countries to pour money into ads and other activities aimed at influencing U.S. politics and elections — as long as they don't explicitly call to vote for (or against) a particular candidate.
"Kavanaugh went out of his way to narrow the foreign national ban to apply only to 'spending money in order to expressly advocate for or against the election of a candidate,'" explained Brendan Fischer of Campaign Legal Center.
This interpretation of the law "would leave the door open for unlimited spending by foreign powers on what Kavanaugh called 'issue advocacy,'" meaning that the current ban on foreign spending in U.S. elections "would have covered only a small fraction of the campaign activity attributed to Russian operatives in the 2016 elections," according to a review of Kavanaugh's record by Campaign Legal Center and Demos.
And Russia appears to have taken notice.
In this week's court filing arguing for the charges to be dropped, lawyers for Concord Management specifically referenced Kavanaugh’s distinction between issue ads and ads that advocate for or against a candidate, writing, "Foreign nationals are not barred from issue advocacy through political speech such as what is described in the indictment — they are only precluded from willfully making expenditures that expressly advocate the election or defeat of a particular candidate."
We don't know yet if Concord Management's motion to dismiss will be successful, but we do know that Russia is actively working to interfere in the 2018 midterm elections, and that Kavanaugh's interpretation of the law would make it harder to prevent foreign interference in future elections.
Furthermore, previous rulings by Kavanaugh raise concerns that he would support striking down disclosure laws, opening the floodgates for a surge of dark money to flow into our political process. This could also make it easier for countries like Russia to covertly fund U.S. political candidates and campaigns by funneling money through U.S.-based organizations.
For example, there are growing suspicions that the Kremlin may have used the NRA to secretly funnel money to Trump’s 2016 presidential campaign, and multiple federal agencies are reportedly investigating whether the NRA served as a vehicle for Russian money laundering. However, determining the source of the NRA's campaign donations is not an easy feat. The NRA is one of the largest dark money organizations in the country, reporting the highest amount of campaign spending without disclosing the source of those funds — more than $35 million in dark money in the 2016 election cycle alone.
Putting Kavanaugh on the Supreme Court would almost certainly make it easier for dark money to flow into politics — and harder to find out when it's done illegally.
As we saw this week, Russia is already exploiting Kavanaugh's interpretation of campaign finance laws to try to evade accountability for interfering in our democratic process. Elevating him to the Supreme Court would be an invitation for Russia and other bad actors to ramp up their efforts, knowing that if they get caught they'll have an ally waiting for them in the nation's highest court.
Published with permission of The American Independent Foundation.