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Outlaw Participation in Foreign Attacks on U.S. Elections

Nobody has suffered serious legal consequences for actively welcoming—some say aiding and abetting—Russian interference in the 2016 and 2020 elections, or for having asked the presidents of Ukraine and China to similarly interfere. One reason for that is that many forms of U.S. participation in foreign interference are perfectly legal. With both foreign adversaries and their potential U.S.-based accomplices having taken notice of this lack of accountability, attacks on U.S. elections will become a dangerous new normal if Congress does not make it a crime. And the time to do so is now, as part of legislative plans to codify important norms that have been ignored or broken in the past few years.

It makes sense that George Washington warned in his farewell address about the “insidious wiles” of foreign influence. Autocrats invent and exploit cunning ways to secure political power, finding creative pathways to interfere in elections at home and abroad, often through some degree of legal participation by people within the target country. Kremlin-connected oligarchs funnel money to preferred political parties across the globe and run secret influence campaigns on social media and through fringe media outlets. Russian intelligence launders disinformation through lawyers and lawmakers. President Donald Trump asked Russia to hack the emails of Hillary Clinton, pressured Ukraine to investigate Joe Biden, and begged China to buy farm products in swing states and to investigate the Bidens.

Given that foreign interference in U.S. elections comes in many forms, so, too, must effective defenses. Unfortunately, the current U.S. legal framework governing political campaigns was not built to root out or deter foreign interference in elections. The United States does not have a statute prohibiting collaboration with a foreign power to influence an election. The Foreign Agents Registration Act (FARA) is a poorly enforced and loophole-laden disclosure statute that aims to limit efforts to influence policy rather than voters. U.S. campaign finance laws were designed to prevent quantifiable domestic corruption rather than intangible assistance from foreign adversaries. Campaigns are under no requirement to tell law enforcement about foreign offers of assistance. And extensive financial secrecy rights make it easy for companies and campaigns to hide the money trail.

Moreover, while U.S. laws have become stale, the threat landscape has rapidly evolved. Authoritarian regimes have adopted new techniques for manipulating voters over the internet while also funneling covert foreign money to favored political parties and candidates. Russia—and to a more limited degree, China—aggressively exercises State power through decentralized, covert, and unattributable crony networks. Worst of all, U.S. domestic political actors have become much more willing to participate in foreign interference operations, ranging from active coordination to amplifying politically advantageous narratives.

U.S. lawmakers are not alone in facing these challenges. Other democracies on the front lines of authoritarian influence, notably Australia, which has been in China’s crosshairs, have conducted comprehensive audits and enacted whole-of-government reforms, including criminal offenses for participation in foreign interference. Meanwhile, investigations by Special Counsel Robert Mueller and the Senate Select Committee on Intelligence revealed many loopholes in the U.S. legal system. Legal scholars on both sides of the aisle have developed concrete recommendations for how to close them, including by outlawing political alliances with foreign powers and addressing conflicts of interest.

We cite these proposals and others of our own in a new report, Spies and Money: Legal Defenses Against Foreign Interference in Political Campaigns. Because legal protections against this threat should be grounded in national security, the first half of our work addresses counter-intelligence vulnerabilities. Congress should immediately prohibit U.S. actors from knowingly collaborating with foreign nationals to influence an election and embark on a deliberative process of considering laws against a more expansive set of behaviors (such as recklessly laundering disinformation) and adapting strong laws developed in other democracies to the U.S. political, institutional, and constitutional context. The Department of Justice should strengthen FARA enforcement, and work with lawmakers to close the provision’s lobbying loophole and enhance required disclosures. Congress should obligate campaigns and their proxies to report contacts with foreign powers without hampering conventional foreign relations. It could do this by adopting a bill like the SHIELD Act and adjusting it to cover contacts between campaign intermediaries and big donors with representatives of non-allied countries. Presidential candidates should be required to disclose their tax returns, while presidents should have to separate themselves from business interests. The foreign emoluments clause should be supported by legislation creating practical and actionable transparency and enforcement mechanisms.

Given the prominence of weaknesses in U.S. campaign finance law exposed by Mueller’s analysis, as well as new evidence that covert foreign money is the most active offline vector of authoritarian interference in democracies, the second half of our analysis involves reforms to campaign finance. The legal definition of a “thing of value” should be clarified to unambiguously include intangible, difficult-to-value, uncertain, or perceived benefits. Professional service providers should be required to identify their ultimate customers, making it harder for corrupt oligarchs to hide money through the services of U.S.-based lawyers, accountants, real estate agents, private equity and hedge funds, and other enablers. U.S.-based subsidiaries of foreign parent companies should not be allowed to spend money on U.S. politics. Non-profits should have to be transparent about their sources of funding. The funders of online political ads and media outlets should be disclosed in public archives maintained by U.S. technology firms. And the Justice Department and Federal Elections Commission should have to coordinate on potential campaign finance violations.

Like Tolstoy’s unhappy families, each foreign interference operation is insidious and wily in its own way. That is why U.S. policies to build resilience to, catch, punish, and deter participation in foreign interference should be comprehensive and nuanced. Some more brazen conduct can be prohibited, while other behaviors should be publicly reported. Others still should be shared with law enforcement alone. Prosecutors should have several potentially overlapping legal tools to investigate and prosecute different types of foreign interference. In other words, our policy defenses must be, to borrow a phrase from Mueller, sweeping and systematic.

American democracy has come under threat from multiple enemies, foreign and domestic, sometimes acting in concert. American politicians have sought and received assistance from authoritarian regimes in the two most recent presidential elections. That is a stunning fact, and a challenge that demands urgent attention. Fortunately, there are concrete, achievable steps with support from both sides of the aisle that can be taken to quickly close off clear loopholes in the current legal framework governing political campaigns. Doing so can help build resilience to foreign interference, push back on authoritarian efforts to undermine American democracy, and shore up its integrity for the future.

Image: Voters cast their ballots at a Masonic Lodge on June 5, 2018 in Los Angeles, California. Photo by Mario Tama/Getty Images

 

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