FEC Eyes Moves to Curb Foreign Influence

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By Kenneth P. Doyle

The Federal Election Commission needs to do more to reassure the American public that it takes seriously the threat of foreign interference in U.S. elections, Democratic FEC Commissioner Ellen Weintraub said in a new memorandum.

Weintraub’s memorandum, prepared ahead of an FEC open meeting set for June 22, proposed a range of regulatory and investigative options and called for action on pending enforcement complaints from the 2016 election, which allege illegal foreign influence. It remained unclear, however, whether Democratic and Republican FEC commissioners could agree on an approach or even whether any new FEC action on foreign influence is necessary.

The FEC discussion is set to take place amid major probes of Russian interference in the 2016 election, including possible collusion with President Donald Trump’s campaign. A criminal probe is being carried out by Special Counsel Robert Mueller and follows a consensus report from U.S. intelligence agencies concluding that Russia interfered in the U.S. presidential election to try to help Trump and hurt Democrat Hillary Clinton.

Trump has denied there was any collusion between his campaign and Russia and has often played down any Russian impact on the 2016 election.

Congressional committees also have taken up the matter, with officials warning a Senate committee June 21 of a continuing threat by Russia to undermine American democracy. Officials from the FBI, Department of Homeland Security and state election agencies testifying at the Senate Intelligence Committee hearing provided few specifics regarding how the ongoing threat of foreign influence in U.S. elections is being dealt with beyond noting that U.S. election systems have now been declared “critical infrastructure” by the Department of Homeland Security.

The officials said the Russians attempted to infiltrate election systems in at least 21 states but emphasized there was no evidence that vote tallies were changed through these efforts.

FEC Oversees Campaign Finance Law

The FEC has civil enforcement authority of federal campaign finance laws, including the responsibility to determine which, if any, of these laws may have been violated by Russian interference in the 2016 election.

Foreign campaign spending has long been outlawed in U.S. election, but previous cases, such as Chinese efforts to funnel “soft money” into the Democratic National Committee in the 1990s have involved direct campaign funding. The Russia probe is focused instead on efforts to steal data from U.S. computers and to sponsor messages on the internet aimed at swaying the 2016 election. While officials have concluded Russia sought to interfere in the election, they haven’t stated which specific U.S. laws might have been violated.

Weintraub’s new memo said: “The mere allegation that foreign interference may have occurred shakes the faith of Americans in our democracy. The FEC must find out the facts of what happened during the 2016 U.S. presidential election and move swiftly and firmly to fix any problems we find.”

The memo proposed that the FEC receive briefings on novel aspects of Russian interference in the 2016 elections, including reports that Russia paid for Facebook ads to sway the campaign and tried to hack into state voter registration and campaign finance databases. Money spent on such efforts would violate U.S. laws against foreign campaign spending, she said.

Weintraub also said the FEC should get briefings from other agencies on the investigation of Russian interference and should examine whether the FEC’s own enforcement division has enough resources to pursue foreign-influence cases. In addition, she called for the FEC to look again at whether new rules or legislative recommendations are needed to curb foreign influence in elections.

FEC Deadlocked Earlier

It remained unclear whether her latest effort would meet with any more success than previous tries to reach consensus at the deeply divided FEC. Weintraub’s proposals for new rules to curb campaign money from corporations owned or controlled by foreigners have failed, as FEC Republicans have maintained current rules are adequate and Congress must decide whether any new provisions are needed.

The commissioners said earlier this year that they would expedite handling of more that a dozen enforcement matters dealing with foreign money in the 2016 campaign, but no major cases have been concluded.

FEC Chairman Steven Walther, who holds a Democratic seat on the commission, said in a public statement at a recent commission meeting that the FEC faced 15 pending cases of alleged illegal foreign campaign money at the beginning of this year. He didn’t provide any details about the cases, which are required to be handled in secrecy until closed, or say whether they are progressing toward resolution.

Robert Lenhard, a former FEC Democratic commissioner now in private law practice at the firm Covington & Burling, wrote in a recent analysis that the FEC appeared to be “headed to yet another deadlock” on the foreign influence issue because of “a fundamental disagreement among the commissioners about how serious the problem is.” Another factor, Lehard said, was “longstanding animosity between the commissioners [that] makes building consensus difficult.”

Consensus Said to Be Possible

Lenhard said, however, that consensus among the commissioners was possible around a narrow plan based on clarifying existing foreign-money rules and requiring new compliance certifications regarding donors to super political action committees and organizations spending money in campaigns.

Republican commissioners already have suggested super PACs could require their donors to certify compliance with the ban on foreign campaign money, he said. Such a certification also could apply to entities spending money in a campaign, requiring them to acknowledge they are not using foreign money and alleviating concerns that non-disclosing groups might be a hidden source of foreign influence, Lenhard said.

A Republican FEC veteran, Andrew Woodson, also indicated consensus was possible, though difficult given the commissioners’ history of antagonism. Woodson served as an executive assistant Republican FEC Commissioner Lee Goodman before joining the law firm Wiley Rein.

“All commissioners agree on the need to protect our political system from foreign influence, and at this public meeting -- or a future one in the weeks ahead -- commissioners will likely find common ground on some elements of the proposal,” Woodson told Bloomberg BNA in an email. “Some ideas, however, are likely non-starters for the FEC’s Republicans, including the siphoning of staff resources from other agencies and expanding the FEC’s jurisdiction to include hacks of state voter registration databases.”

FEC’s Role Unclear

Even if the commissioners could agree on an approach, it remains unclear what practical role, if any, the FEC may have in sorting out the Russian-influence allegations that roiled the 2016 campaign and its aftermath. The Trump-Russia matter already had led to the special counsel investigation headed by Mueller, a former FBI director, who could ask the FEC to defer any action on Russia-related matters.

Also ongoing are the congressional investigations, including the high-profile probe of the Senate Intelligence Committee. At the committee’s June 21 hearing, Bill Priestap, the assistant director for the FBI’s counterintelligence division, painted Russia’s efforts in the 2016 in dire terms—as a threat to weaken the United States through “information warfare.”

Preistap told the Senate committee that Russian President Vladimir Putin’s strategic aim is to restore the global influence of the former Soviet Union not through direct confrontation with the U.S. and its allies but instead through subtler efforts to erode public faith in democracy. Priestap suggested Putin may have already succeeded, to some extent, by preoccupying America with questions about the last election, but he added that it was beneficial to Americans to understand the threat posed by Russia.

One Democratic committee member, Sen. Martin Heinrich (D-N.M.) asked Priestap during the hearing whether Trump was an “unwitting agent” of the Russians in this project because of the president’s repeated claims during the 2016 campaign that the American electoral system was “rigged.” When Priestap paused, Heinrich interjected: “I don’t blame you for not answering that question.”

Later in the hearing, Heinrich’s line of questioning was countered by a committee Republican, Sen. Tom Cotton (R-Ark.). Cotton asked whether Clinton was an unwitting agent of the Russians because she cast much of the blame for her loss of the presidential election on others. Again, Priestap declined to answer.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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