Outrage Aside, Law Is Murky Regarding Russian Facebook Ads

Experts say foreign political messages that did not explicitly advocate for or against candidates probably not illegal

The Russia boogeyman du jour focuses on ads that a Kremlin-backed “troll farm” bought on Facebook in 2015 and 2016, but for all the fury on the Left, it remains unclear whether they broke any U.S. laws.

Election laws prohibit campaign contributions and other electioneering by foreigners. That potentially could apply to some of the ads that Facebook turned over to congressional investigators since they reportedly mentioned President Donald Trump and Democrat Hillary Clinton.

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Brad Smith, a former member of the Federal Election Commission, said it is a “gray area” as to whether those laws forbid foreigners from activities not specifically connected to an election.

“Some would interpret the statute that broadly,” said Smith, now a professor at Capital University Law School in Ohio. “That’s not usually the way courts interpret that.”

Facebook has not publicly released the ads bought by the Russia-based Internet Research Agency. But CNN, citing anonymous sources, reported this week that some of the ads focused on the Black Lives Matter movement and were designed in a way to be interpreted either as pro or con.

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“We tend to want to think about this as these ads may be promoting one candidate, criticizing another candidate,” CNN media and culture reporter Dylan Byers explained on the air Wednesday. “It’s not that simple.”

Byers said the Russians, at least in late 2015 and early 2016, did not have their sights set on the presidential election.

“The goal here was really about creating chaos, creating a climate of incivility, a climate of political discord and partisanship, effectively to sort of undermine the democratic project, generally,” he said. “To undermine America’s strength at home.”

Sen. Richard Blumenthal (D-Conn.) told CNN anchor Wolf Blitzer that the Russian ads were “absolutely appalling and astonishing.”

But Smith said buying ads and fomenting social unrest, though distasteful, probably could not be prosecuted. Even the ads that mentioned Clinton and Trump by name are not necessarily illegal, he said. He said courts generally examine whether ads advocate the election or defeat of a candidate.

“Generally, you need a call to action,” he said.

Broad Statute and Gray Areas
Brendan Fischer, director of federal and FEC Reform at the Campaign Legal Center, takes a more expansive view of how foreign political activity could run afoul of the statute.

“It’s pretty broad,” he said.

But Fischer said ads like the Black Lives Matter Facebook campaign are not as clear-cut.

“It’s debatable whether the foreign national ban would extend to these things,” he said.

“Americans have always distrusted foreign involvement in elections … But before we rush off half-cocked, we should think about what we’re talking about.”

Even if Russian trolls did violate the law, however, it is unclear what could be done to enforce it. Fischer said Facebook likely would not face legal liability for accepting the ads. And apprehending Russians, he said, would be obviously problematic.

“It’s obviously questionable whether [special counsel] Bob Mueller or the FEC or the [Department of Justice] could actually extradite them,” he said.

The story is different for Americans who might have assisted the Russians, however. And that is the question that has inspired endless speculation — in the big media and in the U.S. Senate. Some have suggested that the Russians could not have figured out how to “weaponize” their campaign, including where to target Facebook ads, without American help.

“This micro-targeting required sophistication, knowledge and a great deal of data and research and the real question, and you just asked it, is how did they know how to micro-target?” Blumenthal said on Blitzer’s show.

Blumenthal said more investigation is needed to determine whether Trump’s son-in-law, Jared Kushner, or other campaign staffers helped the Russians. After insinuating that he has reason to believe Kushner and others were involved, however, the Senate Intelligence Committee member demurred when Blitzer asked if he had seen evidence of it.

“I can’t talk about the evidence that may exist, but I think it is an area of investigation that needs to be pursued,” he said.

MSNBC pundit Chris Matthews also marveled at the ability of Russians to learn about American politics.

“The proliferation of Russian activity, doesn’t it stun you they’re using Twitter, and they seem to understand our map of red and blue states, and the states that could be swung over to the Trump side?” he asked Rep. Adam Schiff (D-Calif.) on Thursday. “They seem to understand all our issues, right up to today, understanding this fight over ‘take a knee’ display at the NFL games during the national anthem. They seem to know everything there is about us.”

Did Russians Need Help?
Fischer said he thinks a connection between Russia and American citizens is possible. Of the Facebook ads that have become public, he said, “Some of it was obviously pretty clumsy.”

On the other hand, he said, the campaign demonstrates an unusual familiarity with American politics and culture that suggests coordination.

But Smith, the former FEC commissioner, said aligning political activity in support of a campaign without actually coordinating with it is not that difficult. It is one of the reasons election regulators have such a hard time determining whether super PACs are sufficiently independent of the campaigns that are set up to support.

Smith said the very reforms passed by good-government advocates have made that task even easier. Campaigns are required to publish lists of their donors and expenditures. The public can review how many ads TV stations sell to candidates. Campaigns make their schedules known.

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Using those tools can make it easy for a political interest group or a foreign meddler, Smith said.

“I don’t think it’s implausible at all,” he said. “It’s not that hard to figure out what campaigns are doing.”

Current FEC Commissioner Ellen Weintraub, in a Washington Post op-ed this month, called on the agency to do more but acknowledged that there are limits on what it can do.

“Our campaigns are moving headlong onto the internet; our laws must catch up,” she wrote.

But Smith said it is important to keep Russian ads in perspective. The $150,000 that the Facebook ads cost were a tiny fraction of all election spending during the 2016 campaign, he said.

“Americans have always distrusted foreign involvement in elections … But before we rush off half-cocked,” he said, “we should think about what we’re talking about.”

Passing new laws aimed at limiting foreign influence may restrict Americans, as well, he said.

“We’re honing in not just on the rights of a few foreigners,” he said. “We’re honing in on the rights of Americans, too.”

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