The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: "A Miss Universe contestant—Miss Slovakia—says that Donald Trump had sexually harassed her. Would you like to get her story?" The staffer says, "I'd love to," and indeed gets the information, which he then uses in the campaign.
Did the staffer and the Miss Universe contestant just commit a crime? Yes, under the analysis set forth in the past couple of days by some analysts, such as my University of California colleague and leading election law scholar Rick Hasen (UC Irvine School of Law) and by Common Cause; Hasen was cited by the Wall Street Journal and CNN; similar arguments were quoted by Dahlia Lithwick (Slate).
Foreigners who aren't U.S. citizens or U.S. permanent residents, the argument goes, are barred from providing candidates any "thing of value" in connection with any American election campaign. Campaign staff are barred from soliciting any "thing of value" from such foreigners. And, the argument goes, valuable political information about an opponent's misdeeds is a "thing of value." (Hasen notes that the Federal Election Commission has treated some information, such as contact lists, campaign materials, and polling information as a "thing of value.")
What's more, this would apply not just to foreigners who live abroad. If a Slovakian college student who is studying in the United States called the Clinton campaign with such information, that would be a crime. If the Clinton campaign heard that Mar-a-Lago was employing illegal immigrants in Florida and staffers went down to interview the workers, that would be a crime.
And it would make opposition research on much possible foreign misconduct virtually impossible. Say that Clinton's campaign heard rumors that the construction of a Trump resort in Turkey might have involved some shenanigans. It's likely impossible to effectively follow up on that without soliciting some valuable information from foreign nationals, such as foreign government officials who were (hypothetically and allegedly) bribed, or rivals who may have a motive to provide information (recognizing, of course, that any such information may be untrustworthy unless it's otherwise corroborated). Or say that Bernie Sanders's campaign heard rumors of some misconduct by Clinton on her trips abroad—it wouldn't be allowed to ask any foreigners about that.
Now one possible response would be that the provision of such information would be "volunteer services," which is generally allowed even for people who can't contribute "thing[s] of value." But as I understand Hasen's argument, the information here wouldn't qualify as a voluntarily provided service; see, for instance, this post, which cites an FEC opinion about polling data and which takes the view that providing "poll result information to [the candidate] or anyone else working for [the] campaign" would not be covered by the volunteer exemption. And beyond that, the volunteer exception applies only if the person is "not compensated by anyone else." The employee of a foreign company that wants to alert the Clinton campaign to supposed misconduct by Trump overseas, and who communicates with the campaign on the company's behalf, would certainly not be a volunteer (though, again, it seems to me that Hasen's position is that providing valuable political information about an opponent wouldn't be covered by the exception even apart from whether the provider is on someone's payroll).
Yet that, it seems to me, can't be right. It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) ("freedom of speech and of press is accorded aliens residing in this country"); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) ("We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders," including ones who are not permanent residents).
Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans—whether political candidates or anyone else—really be barred from asking questions of foreigners, just because the answers might be especially important to voters?
The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns—or on campaigns seeking such information—can't be constitutional. Can it really be that the Clinton campaign could be legally required to just ignore credible allegations of misconduct by Trump, just because those allegations were levied by foreigners?
Now this whole controversy is of course arising as to Donald Trump Jr.'s willingness to get unspecified information that came from the Russian government, and was "part of Russia and its government's support for Mr. Trump." Maybe it should and could be made illegal for a campaign to solicit or accept information that directly or indirectly came from a foreign government—though even that's not clear to me: If a Canadian government official had informed the Clinton campaign of some possibly illegal conduct in the development of one of Trump's Canadian properties, I don't think it could be made a crime for the Clinton campaign to accept that information and ask for more. (It certainly is illegal to deliberately conspire with anyone, foreign or domestic, to hack into someone's computer; but so far I haven't heard evidence that Donald Trump Jr. was doing that. UPDATE: Just to clarify, as best I can tell there was no indication from the e-mails that Trump Jr. thought the information was the result of a hack; this happened before the hack of the DNC was revealed, and the Russian government could have many sources of "official documents and information"—for instance, dealings between Clinton and Russian officials—that would come through means other than hacks or other crimes.)
But in any event, that's not what the rules that people are discussing say. Rather, those rules ban contributions of "things of value" by all foreign citizens (except those who are also U.S. citizens or permanent residents), and the argument is that politically useful information about a candidate's opponent is in general a thing of value. If that is the right way to construe the statute banning foreign contributions, then the statute does cover all the examples that I gave, and is therefore "substantially overbroad" and thus facially unconstitutional (at least as to such information), regardless of whether a narrower statute could ban the particular kind of speech involved here. But if we avoid the overbreadth by construing "things of value" as not including information (or as not including one-off information that isn't in the form of a standard commercially distributed product, such as poll results or prospective contributor lists), then Donald Trump Jr.'s expression of willingness to accept such information from foreigners (including ones linked to foreign governments) wouldn't be covered by the statute.
That, at least, is my tentative thinking on the matter. (I should note that, while I know a good deal about First Amendment law generally, I am less knowledgeable about the regulatory details of federal campaign statutes.) I'll be happy to revise my thinking as I hear more arguments, or as more facts emerge.
For a similar argument (which I just saw as I was finishing the post), see this post by Frank Bowman (Impeachable Offenses?). Thanks to Jeffrey Redfern for first pointing me to Rick Hasen's posts.
UPDATE: Rick responds in Slate; here is an excerpt:
Should it ever come down to a prosecution of Donald Trump Jr., I think courts would—and should—reject [the First Amendment overbreadth] arguments. One way to do so would be to read the statute more narrowly to proscribe actions like Trump Jr.'s: campaigns taking compiled information for free that they would have paid significant value to receive from a foreign source—or at least a foreign government.
I take it that the theory is that a one-off e-mail from or to Miss Slovakia would thus be legal (and presumably constitutionally protected), because it wouldn't be "compiled information"; but if a foreign national (recall that the statute draws no distinctions between foreign individuals and foreign governments) sends "compiled information" for free, or when a candidate solicits such information for free, that's a crime.
Still, can that be right? Say, hypothetically, that a Turkish advocacy nonprofit thinks something bad is happening at Trump Towers Istanbul. Unsurprisingly, it doesn't just send an e-mail saying "hey, we're upset, and we think there's something bad afoot." Instead, it actually tries to gather enough information to prove what it suspects. It then mentions to the Clinton campaign that it has such "compiled information." It seems to me that the Clinton campaign would have a First Amendment right to express a willingness to get this information; if the law bans such speech, then it is unconstitutionally overbroad.
Now maybe the problem is that the campaign is asking for this for free, rather than paying. But we usually frown on paying for incriminating evidence, rather than thinking that paying for such evidence is what makes otherwise criminal conduct legal. (What would the fair market value of such one-off incriminating evidence even be?) If someone e-mails me offering some evidence about someone's supposed misbehavior, I'll be open to it, though of course I'll be skeptical until I can confirm it; but if someone offers to sell it to me, I would think that this would actually produce more possible ethical problems. Of course, I'm an academic and a blogger, not a campaign staffer; but the principle seems similar: A right to gather evidence should include the right to simply ask for it, without having to offer payment. (For that matter, we don't even know whether Trump Jr. would have taken the information for free; maybe he would have been advised, before getting the "compiled information," that he should protect himself by giving some money for it, if that's what's legally required. But even if he was expecting to get it for free, the way a reporter would expect sources to give information for free, I don't think that could be criminalized.)
Rick goes on to point to Bluman v. FEC, which I cited above, and which upheld a ban on monetary contributions or independent expenditures by foreign nationals who aren't U.S. citizens or permanent residents, and argues:
Campaign finance laws are usually justified on the grounds of preventing corruption or the appearance of corruption. But the laws barring foreign interference are different: They are about protecting self-government and the right of the American people themselves to decide who our elected officials and representatives are….
To let someone off the hook who solicited "very high level and sensitive information" from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy….
As a matter of protecting American democracy, the argument is pernicious and threatens the very core of what it means for "we the people" to decide who governs us.
But, again, the First Amendment overbreadth analysis asks whether the statute is substantially overbroad—whether it applies to a substantial amount of constitutionally protected speech. If it is, then it can't be applied against a defendant even if the defendant could have been convicted under a narrower statute.
I'm inclined to think that even a narrow statute barring American campaigns from receiving "very high level and sensitive information" from foreign governments would be unconstitutional. If the Hillary Clinton campaign had reason to think that, say, the British government had "very high level and sensitive information" showing serious misbehavior by Trump, I think it would have had every right to get that information and see if it should be put before the American people as evidence that Trump shouldn't be elected. Limiting candidates' ability to expose their opponents' misbehavior would violate the First Amendment, and no interest in "barring foreign interference" could justify such a restriction. Indeed, denying candidates this right to get such information and convey it to voters would itself interfere with "the right of the American people themselves to decide who our elected officials and representatives are."
But in any event, the statute as written is much broader than the facts of this case, and no limiting construction can limit it just to foreign governments, or just to very high level and sensitive information. If Rick's theory of the statute is right, then political candidates would find it much harder to investigate what their opponents did in foreign countries, or did to foreigners here in the U.S. And that suggests to me that this theory can't be right.