The Mueller indictment of 13 Russian nationals for interfering with the 2016 U.S.
presidential election offers a remarkably detailed account of a complex plot to sow discord and influence the presidential contest in favor of Donald Trump. The indictment critically points to something else, though: It provides a roadmap for the Russians to do it all again, without violating any current campaign finance laws the next time. Paragraph 50 of the complaint demonstrates the kinds of social media ads Russian government agents paid for during the last election season. Here are two relevant examples: “Hillary is a Satan, and her crimes and lies had proved how evil she is,” and “Vote Republican, Vote Trump, and Support the Second Amendment!”
If the Russians interfere in the next presidential election, expect to see more of “the Democrat is Satan” sponsored Tweets and fewer “Vote Trump” messages. Under current campaign finance law, as the Supreme Court and lower courts currently construe it, it may have been perfectly legal for the Russians to run those Satan ads without disclosing their identity.
As I explained in Politico back in September, while the federal courts have upheld laws banning foreign nationals from spending money to try to influence our elections, the laws have been interpreted to bar only “express advocacy”—ads that might say “Vote Trump” or otherwise expressly advocate for the support or defeat of a particular candidate—and not ads which avoid those magic words. The exception to this, thanks to the McCain-Feingold campaign finance law of 2002, is for certain ads (called “electioneering communications”) broadcast close to the election on TV or radio which feature a candidate’s name or likeness. So foreign nationals could not call Hillary Clinton “Satan!” in a radio ad broadcast close to the election (and Americans paying for such ads have to disclose their identity).