The Senate Russia Report and the Imperative of Legal Reform
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.
However, § 219 does not specifically address the involvement by a candidate, including a public official-candidate, with a foreign national in collaborative political campaign activity. FARA contains a definition of “political activities” that an agent might undertake for a foreign national, but it does not clearly include activities that are campaign related or for an election-influencing purpose. It aims instead at capturing those activities concerned broadly with the formulation, adoption or alteration of U.S. policy, or the promotion of a foreign government’s or party’s interests, policies or relations.
A separate statute, the Federal Election Campaign Act (FECA), restricts the financial relationship between a campaign and a foreign national by prohibiting foreign national “contributions” or “expenditures.” As Special Counsel Robert Mueller details in his report on the Russia investigation, however, it is unclear whether the FECA reaches information of uncertain market value that passes from a foreign national to a campaign as part of an understanding or alliance entered into for an election-influencing purpose. The issue came up in connection with the famous June 2016 Trump Tower meeting between the Trump campaign senior management and a delegation from Moscow that offered what it viewed as derogatory information—“opposition research”—about Democratic presidential candidate Hillary Clinton. Mueller concluded that he could not bring a prosecution under the FECA because, among other reasons, it was unclear whether and when this kind of information constituted a “thing of value” that should be treated like a prohibited cash contribution.
To address the gap between FARA and the FECA, and to expressly ban influence operations like the June 2016 Trump Tower meeting, we propose that § 219 be amended to prohibit strategic political relationships between a campaign and a foreign national. The amendment to FARA for these purposes would focus on the relationship established between the campaign and the foreign power. It would thus obviate the need to determine whether and when a campaign received a “contribution” under the FECA measured in monetary terms or by reference to the market.
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.
To make clear FARA’s applicability to campaign-related activities, the “political activities” governed by the reformed statute would explicitly reach “communications, actions or agreements with a foreign principal for the purpose of influencing any election to federal, state or local office.” A candidate or campaign, or anyone authorized to act on their behalf—such as campaign personnel—could not solicit these political activities, and their acceptance of an offer of support from a foreign national would also trigger the prohibition.
This reform would address an episode like the 2016 Trump Tower meeting. The committee found that at least one Trump campaign official (Donald Trump Jr.) intended to receive from the Russian participants in the meeting “derogatory information that would be of benefit to the Campaign from a source known, at least by Trump Jr., to have connections to the Russian government.” One of those attending the meeting, Trump campaign chairman Paul Manafort, had a “close and lasting relationship” with a Russian intelligence officer with whom he shared confidential, strategic campaign information. These facts should be sufficient to establish a ground of liability under our proposed reform.
The Trump campaign’s involvement with Russia is not the only example of how this reform might operate. If such legislation had been on the books at the time, it would have applied as well to Republican presidential candidate Richard Nixon’s use of secret channels to persuade the South Vietnamese government to stall peace negotiations and deny an agreement on the eve of the 1968 election that would have been politically advantageous to Nixon’s Democratic opponent, Vice President Hubert Humphrey. This, too, did not involve a political contribution or expenditure—certainly not in any conventional sense—but its “value” to Nixon was immeasurable. It was also an egregious example of how this kind of strategic political alliance can enable a highly consequential—perhaps even decisive—foreign interference in the electoral process.
In our book, we note that the reform we propose should include some common-sense exceptions for routine engagements by foreign governments with presidential campaigns. Candidates seeking to burnish their foreign policy credentials travel overseas during the campaigns, and foreign governments accommodate and welcome them. Those governments also seek to understand the policy positions staked out by aspirants to the Oval Office, and to share their own perspectives on policy questions. But these contacts are not typically covert and do not entail an offer of campaign support. In these cases, the governments express no preference and offer no assistance or information to one campaign that it does not make available to the other.
These exceptions should answer First Amendment concerns over the proposed prohibition. The reform does not bar all contacts or communications between a foreign national and a campaign. It targets a foreign national’s “specific and unambiguous” offer of campaign support. Moreover, we propose that the Department of Justice’s enforcement authority include the issuance of advisory opinions on the application of the law to specific factual circumstances. Campaigns seeking guidance may obtain it. This structure would situate the prohibition well within the generous boundaries for the regulation of foreign national campaign activity outlined by then-Judge Kavanaugh in the D.C. Circuit in Bluman v. Federal Election Commission (2011), a decision summarily affirmed by the Supreme Court.
Finally, our book proposes other reforms as well—a requirement that campaigns notify federal law enforcement of foreign government contacts involving an offer of campaign support, and clarification that information useful to a campaign that a foreign national provides, such as “opposition research,” is a contribution—that is, something of “value” to the campaign. We focus here on reform of § 219 because this proposal, we hope and believe, addresses a major problem revealed in 2016 (and, before then, in 1968) that falls between the regulatory cracks. For a problem like this, the promotion of best practices and the stimulation of norms should be established by clear criminal prohibitions.