The final report on Russian electoral interference by the Senate Select Committee on Intelligence notes “several ways in which hostile actors [are] able to capitalize on gaps in laws or norms and exert influence.” And it highlights in particular the problem posed by “a campaign’s status as a private entity intertwined with the structures of democracy.” The report calls on campaigns to build protections against becoming channels for illicit foreign state influence. It urges future campaigns to “perform thorough vetting of staff, particularly those [with] responsibilities that entail interacting with foreign governments”; “ensure that suspicious contacts with foreign governments or their proxies are documented and can be shared with law-enforcement”; and reject the “use of foreign origin material, especially if it has potentially been obtained through the violation of U.S. law.”
In other words, the committee urges campaigns to adopt various protective practices, perhaps with the expectation that, if adopted widely enough, they will establish norms. To the extent that the committee considers legal reforms, it recommends only a “thorough review” of “a patchwork of overlapping and ill-defined prohibitions.” It focuses on laws enacted for the criminal enforcement of the Foreign Agents Registration Act (FARA), which imposes registration and reporting requirements on those seeking to influence public policy or opinion on behalf of foreign principals. But it does not do so in a way that addresses strategic political alliances between foreign nationals and U.S. campaigns for the purpose of influencing the outcome of a federal election. Apparently, there was no bipartisan support for moving reform in this direction.
Our forthcoming book on institutional reform of the presidency devotes its first substantive chapter to the problem of these kinds of political alliances. One of our proposed reforms would revise a FARA-related statute that the committee cites as among the “overlapping and ill-defined patchwork” of prohibitions.
Section 219 of the federal criminal code prohibits any “public official” from acting as the agent of a foreign principal required to register under FARA. Any violation is subject to a fine or imprisonment, or both. The notion behind this law is straightforward: A public official should act only in the interests of the U.S. government, not another government.
Our proposed reform would achieve its goal by amending key definitions under the current § 219. The president would be included within the definition of “public official,” as would candidates for president or Congress. Such individuals would all become “agents” of the foreign principal upon soliciting, or agreeing to a foreign national’s specific and unambiguous request for, collaboration in campaign activities. These amendments would reflect the view that a campaign that collaborates with a foreign national and serves the foreign national’s interests is appropriately treated as an agent of a foreign principal.