A Russian company accused by special counsel Robert S. Mueller III of being part of an online operation to disrupt the 2016 presidential campaign is leaning in part on a decision by Supreme Court nominee Brett M. Kavanaugh to argue that the charge against it should be thrown out. The 2011 decision by Kavanaugh, writing for a three-judge panel, concerned the role that foreign nationals may play in U.S. elections. It upheld a federal law that said foreigners temporarily in the country may not donate money to candidates, contribute to political parties and groups, or spend money advocating for or against candidates. But it did not rule out letting foreigners spend money on independent advocacy campaigns. Kavanaugh “went out of his way to limit the decision,” said Daniel A. Petalas, a Washington lawyer and former interim general counsel for the Federal Election Commission.
A motion filed by the Russian company this week repeatedly cites Kavanaugh’s decision, bringing new attention to his rulings on campaign finance laws and regulations during his tenure on the U.S. Court of Appeals for the D.C. Circuit.
Legal experts who have analyzed his work say he appears to fit comfortably within the high court’s conservative majority, which has found that restrictions on campaign-related spending conflict with the First Amendment’s guarantee of free speech. That argument underpinned the seminal 2010 Citizens United case, which allowed corporations and other organizations to spend unlimited sums on independent political activity.