Cambridge Analytica and Its Foreign National Staff Violated U.S. Laws

On March 17, the Observer of London and New York Times broke the story of Cambridge Analytica’s use of “private information from the Facebook profiles of more than 50 million users without their permission.” The more information that comes out about Cambridge Analytica, the more suspect the company’s methods appear. But those methods appear to have gone far beyond suspect and all the way to illegal when it comes to the laws governing the financing of our elections. That is why Common Cause today filed complaints with the Department of Justice (DOJ) and Federal Election Commission (FEC) alleging violations of U.S. campaign finance law that the company’s own lawyer warned them about.

The New York Times reported, based on documents reviewed and former employees interviewed, that Cambridge Analytica “was effectively a shell” and any contracts for U.S. election work won by Cambridge Analytica were serviced by a London-based firm called SCL Group. These documents and former employees made clear that such work was “overseen” by Alexander Nix, a British citizen who was the chief executive of Cambridge Analytica (suspended last week) and also a director of SCL Group. Most of SCL Group’s employees and contractors were Canadian, like now-famous whistleblower Christopher Wylie, or European.

U.S. federal campaign finance law prohibits any foreign national from “directly or indirectly” making a contribution, donation, expenditure, independent expenditure, or disbursement for an electioneering communication in connection with any U.S. election. 52 U.S.C. § 30121(a)(1).

For decades, the FEC has interpreted the “directly or indirectly” language in this statutory ban broadly to include participation by foreign nationals in decisions involving election-related activities. Specifically, FEC regulation provides that a foreign national shall not directly or indirectly participate in the decision-making process of any political committee with regard to the committee’s election-related activities, such as decisions concerning the making of expenditures or disbursements in connection with U.S. elections. 11 C.F.R. § 110.20(i).

Back in the early 1980s, the FEC issued advisory opinions permitting two corporations formed in Delaware, but wholly owned by foreign national individuals and corporations, to establish political committees (i.e., corporate “PACs”)—on the basis of a representation by the corporations that those who would exercise decision-making authority for the PACs’ activities would not be foreign nationals. FEC Ad. Ops. 1980-100 and 1982-10.

And in 1989, the FEC codified these advisory opinions into its regulations, “to clarify that foreign nationals may not participate in the election-related activities of others, including decisions regarding contributions or expenditures by political committees, corporations, labor organizations or other persons.”

In 2002, the Bipartisan Campaign Reform Act expanded the statutory foreign national ban in several ways and left intact the FEC’s longstanding interpretation that the ban prohibits foreign nationals from participating in decision-making regarding contributions and expenditures.

And in 2004, the FEC told a member of Congress via an advisory opinion that his foreign national fiancée was prohibited from participating in the congressman’s “decisions regarding his campaign activities” and that his fiancée “must also refrain from managing or participating in the decisions” of the congressman’s political committees. FEC Ad. Op. 2004-26.

Cambridge Analytica and its executives knew all of this—they knew that their foreign national staff could not participate in decision-making regarding political expenditures by the U.S. clients—because their lawyer explained it all to them in a 2014 memo. In the memo, obtained and published last week by NBC News, Cambridge Analytica’s lawyer, Mr. Laurence Levy, made clear that Alexander Nix would have to be “recused from substantive management” of any clients engaged in U.S. elections activities. Mr. Levy further advised Cambridge Analytica to “ensure that only US citizens are making decisions about US election activity,” managing the “work and decision making functions, relative to campaign messaging and expenditures,” and doing the “final analysis” and conveyance data to U.S. clients.

Reporting by NBC News and other outlets over the past week make clear that Cambridge Analytica ignored its lawyer’s advice. Former Canadian employee Christopher Wylie told NBC News that many foreign nationals worked on the campaigns in 2014, and many were embedded in the campaigns around the U.S. “It was not just me,” he said. “Like 20 other people were. We had Canadians, British, Eastern Europeans, Lithuanians, Germans, Romanians, Greeks. We weren’t just working on messaging. We were instructing campaigns on which messages go where and to who.” A second former senior Cambridge Analytica staffer corroborated Wylie’s statement.

Similarly, the Washington Post reported that two former Cambridge Analytica workers, “who spoke on the condition of anonymity because of fear that they may have violated U.S. law in their campaign work, said concerns about the legality of Cambridge Analytica’s work in the United States were a regular subject of employee conversations at the company, especially after the 2014 vote.” And Cambridge Analytica’s employment of foreign nationals to work for U.S. political committees seemingly continued through the 2016 U.S. elections.

The Washington Post also previewed a likely defense argument from the Cruz and Trump campaigns: that the foreign nationals were managed by U.S. nationals. But this wouldn’t prevent violations. Cambridge Analytica’s own lawyer concluded his legal memo with the admonition: “Remember, it is the ability to influence the expenditure of campaign dollars, at the federal, state or local level that is prohibited.” A foreign national need not be the “final” decision-maker in order to violate the ban on “participating” in the decision-making.

Legal liability isn’t limited to the foreign nationals who worked on U.S. campaigns. As Common Cause explains in its DOJ complaint, U.S. nationals running Cambridge Analytica and its political committee clients may have aided and abetted foreign nationals in violating U.S. laws, and may be liable for conspiracy or attempted conspiracy to violate U.S. laws—all of which are crimes under U.S. law.

As a federal court stated in a 2011 decision upholding the foreign national prohibition statute and regulation—a decision affirmed by the U.S. Supreme Court: “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.”

Common Cause is committed to holding Cambridge Analytica accountable for its violation of U.S. law. So we’ve filed complaints alleging that foreign national staff of Cambridge Analytica and SCL Group illegally participated in the decision-making of U.S. political committees regarding expenditures for political advertising, research, data analytics, polling, focus groups, message development and more. Now it’s time for the DOJ and FEC to do their jobs and investigate.

The violations seem fairly clear cut, the reporting by news outlets has been thorough and the job of investigators should be aided by it. But if these alleged violations are verified then the penalties must be sufficient to ensure these laws are not routinely violated by scofflaws who would see small fines as simply the cost of doing business. The integrity of our elections is at stake. 

About the Author(s)

Paul Seamus Ryan

Vice President of Policy & Litigation at Common Cause Follow him on Twitter (@ThePaulSRyan).