A series of recent signals from Trump administration officials, including the President, are normalizing an idea that is detrimental to our national security – that soliciting foreign interference in a U.S. election won’t be prosecuted. With foreign rivals from Beijing to Moscow and elsewhere watching closely, it will become open season on our democracy unless we quickly shift our legal framework for such behavior from a campaign-finance perspective to a national security approach.
Earlier this year, Special Counsel Robert Mueller declined to enforce campaign finance law, partly because of the difficulty proving that the value of “dirt” promised by a foreign power exceeds the monetary threshold for a criminal violation. When asked in a Senate Judiciary Committee hearing whether a president should report foreign dirt to law enforcement, Attorney General Bill Barr injected more ambiguity by hesitating before answering and then seeming to say “yes,” but only if it comes from a foreign intelligence service. When asked the same question in an interview, President Donald Trump said “I think I’d take it.”
And just this week, we learned that after analyzing the call in which Trump urged Ukrainian President Volodymyr Zelensky to investigate his political opponent, the Justice Department echoed the Mueller analysis by concluding that the value of foreign assistance from a foreign government investigation could not be quantified.
This is not how our system is supposed to work. Former White House Counsel and campaign finance expert Bob Bauer critiques these legal analyses as omitting both “the systematic congressional commitment to prohibiting foreign national spending of any kind in federal elections” and the context of an “unprecedented solicitation and receipt of support from a hostile foreign government.” Instead, Bauer says the “analysis in this instance is more typical of the treatment of a run-of-the mill campaign finance legal question.”
The Federal Election Commission (FEC) has “recognized the ‘broad scope’ of the foreign national contribution prohibition and found that even where the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned.” However, this fails to provide credible deterrence because even when the FEC does have a quorum of commissioners (it doesn’t currently), the evenly split Democrats and Republicans rarely come together as the majority needed to enforce campaign finance laws. It is now stunningly evident that when it comes to protecting our democracy from foreign interference, our current legal framework is not up to the task.
That is in part because what we are dealing with are national security threats, not a technical campaign finance violations. Accepting or inviting interference from a foreign government opens profound counterintelligence risks, providing foreign leaders leverage they might wield to pursue agendas in any number of policy domains. It damages the integrity of our democratic process, which is fundamental to our security. And it weakens the credibility and appeal of democracy, thereby strengthening the hand of authoritarian adversaries who seek to discredit democracy in their countries. Perhaps, most importantly, it undermines our efforts to deter foreign governments from engaging in attacks on our democracy.
We need a new framework – one that is proactive, holistic and addresses the challenge as a matter of national security. It is incumbent upon Congress to consider legislative measures that would close our vulnerabilities, shore up our defenses and provide a method of deterrence –measures that recognize that foreign interference comes in many forms, not all of them online.
In pursuing this path, we should look to how our allies are meeting similar challenges. A year ago, Australia enacted a sweeping counterintelligence overhaul in response to Chinese espionage activities and political donations. Beyond catching up with international best practices by banning foreign political contributions and requiring foreign agent registration, Australia also innovated a new law against covert participation in foreign political influence operations. Their approach was broad and aggressive, criminalizing political or policy persuasion efforts by anyone with undisclosed ties to a foreign power or its proxies. Australian lawmakers took on board criticism from journalists and human rights groups by making amendments to balance privacy and expression considerations. Critically, the reforms were crafted and passed with bipartisan consensus, which makes them robust and denies foreign rivals divisions to exploit.
George Washington warned in his farewell address about both domestic partisanship and “the insidious wiles of foreign influence.” Importantly, he tied the two concerns together, warning of the risk that partisan divergence on foreign policy “becomes the instrument of the very influence to be avoided, instead of a defense against it.” Democrat and Republican lawmakers should stand together as instruments of defense by treating the solicitation of foreign interference as a bipartisan national security issue.