Foreign entities and governments do, in fact, seek to influence the outcome of U.S. elections, just as the U.S. at times seeks to influence the outcomes of foreign elections. For example, the Obama Administration was hostile towards the establishment government in Israel and spent taxpayers’ money to try to influence the elections of one of our closest allies.
This influence is not always unwelcome. Campaigns and supporters love to tout when world leaders have endorsed or expressed support for their candidate, while the opposition loves to point to foreigners’ skepticism of the candidate’s abilities. Hillary Clinton bragged at an Ohio televised town hall last March: “I am already receiving messages from . . . foreign leaders ask[ing] if they can endorse me to stop Donald Trump.” She later specifically touted the Italian Prime Minister’s public endorsement and noted her campaign was “holding [other endorsements] in reserve.” If Hillary had called those foreign leaders out of “reserve” to endorse her campaign and she won, would the left be complaining now?
After Facebook’s announcement of a new advertising policy for political ads last week, Russia, foreign influence in the 2016 election, and disclosure requirements for political advertising are all over the news once again. This is a complicated and deeply important issue, but much of what is stated by liberal pundits and the mainstream media is—intentionally or not—misleading. What is a concerned citizen supposed to think reading these confusing articles?
Let’s review some of the legal principles and existing law that are usually breezed over in these news stories, leaving readers to muddle though political talking points without understanding the underlying law. Political speech is rightly entitled to the highest level of protection under the First Amendment, as freedom to discuss political views and criticize the government form the foundation of our constitutional system of government.
Foreign persons and entities are completely prohibited from making contributions or spending money related to any federal, state, or local election in the U.S. As with many legal standards, what this actually means in practice boils down to the definition of who or what is a foreign person or entity and what spending money related to an election means.
The First Amendment applies to government entities. In legal jargon, this is the “state action” requirement: for there to be a First Amendment violation, the entity or person infringing on someone’s free speech rights must be part of the government or exercising government-like power. The First Amendment does not typically apply to private persons and companies.
From this legal framework, we see the issues surrounding regulation of political ads fall into two broad categories: government regulation and regulation by private entities like Facebook. Unfortunately, liberals are rushing into new restrictions in both categories in response to allegations of Russian interference in last year’s election, with little regard for the important political speech being restricted.
In Congress, Democrats have recently introduced the DISCLOSE Act of 2017 aimed at “reforming” the FEC to give it greater power to restrict speech and enacting more burdensome requirements on political speech. While this proposal is couched in the currently popular language about foreign interference in our elections, it is just a recycled version of legislation introduced annually since Citizens United was decided in 2010, as a barely disguised and unconstitutional effort to overturn it.
Since the dawn of the social media age, the FEC has struggled with how to apply campaign finance disclosure and disclaimer requirements to internet communications in general. Republicans on the FEC recognize the important role of the internet in promoting free political speech and the danger that regulations, even relatively simple ones, pose to this new forum for discussion. For example, they recognize that requiring a full FEC disclaimer on a Twitter profile is impractical; it would take up almost the entire profile. Democrats on the FEC have tried to overturn longstanding precedent exempting internet communications from many campaign finance rules. Unsurprisingly, their efforts have been aimed at conservative organizations, such as when the FEC Democrats voted to change the rules retroactively as applied to a conservative organization’s YouTube video. The same three Democrats had no qualms applying the exemption to dismiss a complaint against Obama for America in 2015.
Despite incessant liberal handwringing about the “dysfunctional” FEC, the FEC commissioners voted unanimously to invite public comment on new rules regarding foreign influence on our elections. They are, fortunately, taking a deliberate, considered approach to addressing this threat to election integrity.
On the private side, companies like Twitter and Facebook provide the fora for much of our modern public discourse. Like the town square of early America, social media allows Americans to come together and debate important issues. But the First Amendment does not apply to social media, leaving people with unpopular messages silenced by unaccountable decisions made within unresponsive corporate entities. Instead of being backed by the coercive power of government, against which the First Amendment protects, these private companies are backed by the purchasing power of their advertisers, investors, and stakeholders.
As these companies move forward with their responses to the allegations of Russian influence in the 2016 election through purchasing ads and producing false or misleading content, they need to take care that their efforts do not end up destroying the public forum for discussion they have created.
For example, Facebook’s announcement certainly has a political tinge to it, as prospective 2020 presidential candidate, noted liberal, and Facebook CEO Mark Zuckerberg is trying to force additional disclosure surrounding political ads that the government has not required. It is within Facebook’s right as a private entity to do so, but as with many well-meaning but misguided liberals, Zuckerberg may not fully realize the implications of the policies he touts.
What will Facebook consider political ads? There are many different legal definitions: express advocacy (vote for/against candidate A), issue advocacy, lobbying, and so on. There are different speakers: candidates, non-profit organizations, individuals, advertisement agencies, media organizations, for-profit companies, and so on. What makes an ad political? What makes an ad sponsored by a foreign person or entity? Who will be making these decisions at Facebook and how will Facebook ensure that decisions are not politically or ideologically motivated? What recourse exists for silenced parties? What will happen if Zuckerberg officially announces he is running for President?
There are good reasons to be skeptical. Last year, Facebook admitted that some conservative news stories were suppressed due to employees’ decisions, not a systemic policy. Stories abound of conservatives’ posts or profiles being flagged and removed for nothing more than expressing a conservative opinion. Facebook abandoned plans for a “fake news” removal algorithm that disproportionately removed conservative news stories. At a large tech company like Facebook, computer algorithms and individual employees often make these nuanced and politically charged decisions that affect individuals’ and organizations’ ability to communicate.
In its haste to address one problem, Facebook has perhaps opened an entirely different can of worms. How Zuckerberg’s principles are actually implemented will have an enormous impact on the nature of public discourse going forward. Concerned citizens should watch this process closely.
While we may resent many attempts at interference in our elections, it is more of a foreign policy matter than a campaign finance or disclosure matter. But what we cannot do is allow this resentment to fuel so-called reforms that clearly infringe upon Americans’ right or ability to engage in political speech.
Michael Thielen is executive director of Republican National Lawyers’ Association.
Views expressed in op-eds are not the views of The Daily Caller.
