Lost amid the debate over whether Facebook can be trusted to police itself to stop Russian and other foreign interference in future U.S. elections or whether new legislation is necessary to accomplish this task is a potential insuperable roadblock to effective regulation: the conservative justices on the United States Supreme Court and their views of the First Amendment. Facebook, facing tremendous political pressure to reveal how Russia tried to influence the outcome of the 2016 election campaign through targeted Facebook advertising, recently revealed that entities backed by the Russian government purchased up to $150,000 in advertising aimed at promoting Donald Trump over Hillary Clinton. Then, last week, Facebook CEO Mark Zuckerberg announced voluntary steps the company said it would take to assure greater transparency in political ads.
Many of those concerned about Russian involvement think these steps are not enough. Some have called for the Federal Election Commission to issue new rules to regulate online political advertising, reviving a debate that earlier led to death threats against former FEC Commissioner Ann Ravel for having the temerity to suggest regulation of internet-based political advertising. Two Democratic senators, Amy Klobuchar of Minnesota and Mark Warner of Virginia, have solicited support from their colleagues for new legislation that would mandate more disclosure of election ads on the internet and require digital media to “make reasonable efforts to ensure that electioneering communications are not purchased by a foreign national, directly or indirectly.”
These approaches are good, but they are likely to be ineffective if the Supreme Court applies the same framework it has applied in the domestic campaign finance context to foreign individuals, entities and governments. My worry: The Court might eventually hold that neither the FEC nor Congress has the power to stop most attempts at foreign interference in American elections.