Loopholes Allow Foreign Adversaries to Legally Interfere in U.S. Elections

The Mueller Report established beyond a reasonable doubt that Russia invaded the 2016 presidential election to disrupt our democracy, harm presidential candidate Hillary Clinton and help presidential candidate Donald Trump.

The United States has long prohibited foreign governments – and other foreign nationals, including individuals and corporations – from being involved in U.S. elections.

It turns out, however, that there are major loopholes in this prohibition that allowed Russia to legally spend money in connection with the 2016 presidential election. These loopholes must be closed.

The PAID AD Act — developed by Senator Amy Klobuchar (D-MN) and Rep. John Sarbanes (D-MD) — now successfully attached as a floor amendment to H.R. 1 by Rep. Elissa Slotkin (D-MI), closes the loopholes revealed by Russia’s cyber invasion into the 2016 presidential race. PAID AD is an acronym for the less mellifluous name, “Preventing Adversaries Internationally from Disbursing Advertising Dollars.” (Disclaimer: my organization, Democracy 21 worked with the offices of Senator Klobuchar and Rep. Sarbanes on the legislation.)

The rationale for banning foreign involvement in our elections is straightforward and dare I say unassailable: we want American voters to choose our elected leaders and we do not want foreign governments interfering in U.S elections or compromising the officeholders who benefit from their intervention.

In accord with that same rationale, current federal law prohibits any foreign government from contributing money or other thing of value to a candidate, or from making an expenditure, independent expenditure or electioneering communication in connection with any U.S. election. The law also prohibits a person from soliciting or receiving a contribution or other thing of value from a foreign national.

Here is a short quiz about these prohibitions. Test yourself.

Does the ban on spending by foreign governments to influence presidential elections prohibit the Russian government from buying broadcast or internet ads in the United States that attack presidential candidates by name?

Does the ban prevent Russia from buying ads in the U.S that do not mention candidates but that spread false and misleading information, suppress voting, preach hatred and disseminate other divisive messages?

Does the ban on soliciting a contribution or other thing of value from a foreign national prevent an agent of a presidential campaign (for example, the candidate’s son) from soliciting a foreign government to provide opposition research to use to attack the campaign’s opponent?

Does the ban on soliciting a contribution or other thing of value from a foreign national prevent an agent of a presidential campaign (for example, the candidate’s personal lawyer) from asking a foreign government to conduct an investigation that could damage the campaign’s potential opponent?

The answer to these questions should clearly be yes – these activities involving a foreign government’s intervening in our elections should be prohibited. But instead, these interventions appear to be legal under our existing laws, or at the least not clearly prohibited.

Russian Internet Ads in the 2016 Presidential Campaign

As long as Russia buys broadcast ads that do not expressly advocate the election or defeat of a candidate, and as long as the ads run more than 60 days before a general election or 30 days before a primary, it appears that the Kremlin, dipping as far as it likes into its coffers, can legally buy ads to attack a candidate like it did with Hillary Clinton.

That is because based on Supreme Court decisions, ads run by independent spenders more than 60 days before a general election or 30 days before a primary have to contain express advocacy to be regulated as campaign ads. It is possible the courts could conclude that this requirement does not apply to foreign spenders. But given the Supreme Court’s demonstrated hostility to campaign finance laws and the FEC’s demonstrated dysfunction, there is no guarantee that either the Court or the FEC will interpret the law in this way.

Russia also ran inflammatory ads, once again to influence our elections, which discussed controversial and divisive issues but did not mention candidates. These ads were clearly undertaken in connection with the presidential election and included ads to suppress the votes for one candidate. While these kinds of “issue” ads that don’t mention a candidate are not covered by campaign finance laws that apply to citizens and voters in our country, it makes no sense for Russia or any other foreign government to be able to buy ads in an election year that inflame and divide American voters, even if they just discuss “issues.”

Foreign countries should not be allowed to spend a penny in the United States in connection with our elections.

The Infamous Trump Tower Meeting

The infamous June 9, 2016 Trump Tower meeting involved Donald Trump, Jr.’s solicitation of a “thing of value” from agents of the Russian government, namely damaging information about presidential candidate Hillary Clinton.

Current law prohibits an individual from soliciting a foreign government for a thing of value to influence a campaign. But the law also states that a knowing and willful violation of this solicitation ban is punishable as a criminal misdemeanor only if it involves soliciting something worth $2,000 or more, and it is punishable as a criminal felony only if it involves something worth $25,000 or more.

According to the Mueller Report, the Special Counsel’s Office decided not to bring a criminal indictment against Donald Trump Jr for making an illegal solicitation of Russian agents, in part because the Special Counsel could not determine a monetary value to place on the opposition research Trump Jr. was soliciting. As a result, the Special Counsel said he could not prove beyond a reasonable doubt that the monetary standard for a criminal misdemeanor or felony violation had been met when Trump Jr. solicited opposition research from Russian agents.

In making this finding, the Special Counsel opened the door to U.S. candidates’ soliciting foreign governments to provide damaging information on their opponents, without serious consequences for the improper solicitations.

The Bizarre Giuliani Escapade

Rudy Giuliani, President Trump’s personal lawyer, recently announced he was going to travel to Ukraine to meet with Ukrainian prosecutors in order to urge them to continue an investigation involving Joe Biden and his son. Biden is the current frontrunner for the Democratic presidential nomination to oppose President Trump in 2020. Giuliani said he was going to give the Ukrainian investigators “reasons why they shouldn’t stop [the investigation] because that information will be very, very helpful to my client.”

In other words, Giuliani was planning to go to Ukraine to solicit the Ukrainian government to continue an investigation because it could be damaging to presidential candidate Biden and “very, very helpful” to presidential candidate Trump in the 2020 presidential election. Giuliani claimed that “There’s nothing illegal about” his plan, but even he recognized that “somebody could say it’s improper.”

Following widespread criticism of Giuliani’s efforts to involve Ukraine in the 2020 presidential election, Giuliani canceled his trip. To whatever degree Giuliani was correct that his activities would not have been illegal—that should no longer be the case. And Congress can easily fix it.

The PAID Act

The PAID Act would extend to internet ads the ban on foreign spending in connection with U.S. elections. The Act would also add a provision to prohibit foreign governments from buying broadcast or internet ads that promote, attack, support or oppose (PASO) a candidate, regardless of whether the ads expressly advocate to vote for or against a candidate. This would likely cover all ads run by Russia in the 2016 election that mentioned candidates by name.

The PASO test was upheld as constitutional in 2003 by the Supreme Court. In McConnell v. FEC, the Court said, “These words provide explicit standards for those who apply them” and “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

The Act also prohibits spending by foreign governments for broadcast and internet ads that discuss national legislative issues of public importance during a regularly scheduled general election year for federal office, even if those ads do not mention candidates. There are no legitimate grounds for foreign governments to run ads in the United States in an election year on issues that can be expected to influence how U.S. citizens vote.

Additional legislative proposals also are being considered by Senator Klobuchar and Rep. Sarbanes to address other gaps in the current law.

One proposal would provide that opposition research or other campaign-related information is not required to have a monetary value in order to be considered a “thing of value” for purposes of the criminal penalties that apply to violations of the foreign national ban, that is, when such information is solicited from or donated by a foreign government.

A second proposal would make it unlawful to solicit any disbursement from a foreign government for the purpose of influencing a U.S election. This would make clearly illegal what even Giuliani recognized was improper in his planned request to Ukrainian prosecutors.

No foreign government should be permitted to spend any money in this country in connection with our elections or to assist any person in this country to influence our elections. Period.

Image: With examples of Russian-created Facebook pages behind him, Sen. Patrick Leahy (D-VT) questions witnesses during a Senate Judiciary Subcommittee on Crime and Terrorism hearing titled ‘Extremist Content and Russian Disinformation Online’ on Capitol Hill, October 31, 2017 in Washington, DC. The committee questioned the tech company representatives about attempts by Russian operatives to spread disinformation and purchase political ads on their platforms, and what efforts the companies plan to use to prevent similar incidents in future elections. (Drew Angerer/Getty Images)

 

About the Author(s)

Fred Wertheimer

President of Democracy 21. You can follow him on Twitter @FredWertheimer.