Law on Foreign Campaign Money Narrow, FEC Analysis Says

By Kenneth P. Doyle

The Federal Election Commission may be severely constrained in what it can or will do to combat foreign influence in U.S. elections, a new analysis posted on the agency’s website suggests.

The commissioners have recently grappled with the foreign influence issue and are set to discuss it again in a July 13 meeting, according to the agenda.

Analyzing the current state of campaign finance laws and FEC precedents, the agency’s new “outreach” article says the law bars only a specific, narrow type of spending—money provided directly to a candidate, political party, or other group calling for votes for or against a candidate.

Reports of spending by Russia to influence the 2016 presidential election have focused not on such direct campaign spending but instead on efforts to hack the computers of the Democratic Party and others, as well as efforts to generate election-related propaganda on the internet. Whether such efforts are subject to the legal prohibitions on foreign campaign money is a major question to be addressed by the FEC and others, including special counsel Robert Mueller, now examining Russian influence in the last election.

Bluman Case Cited

The FEC analysis cites a 2012 federal district court decision, which said the ban on foreign money in U.S. elections “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.”

The decision was from a three-judge panel on the U.S. District Court for the District of Columbia in a case known as Bluman v. FEC, which challenged the ban on foreign campaign money. The court interpreted and upheld the current law in a decision that was allowed to stand, without further comment, by the Supreme Court.

The Bluman ruling followed the Supreme Court’s 2010 ruling in Citizens United v. FEC, which struck down a longstanding prohibition on corporate spending to influence elections. The 5-4 majority decision in Citizens United said campaign spending couldn’t be restricted under the First Amendment based on the identity of the spender; however, the majority ruling didn’t directly address foreign campaign money.

The FEC’s discussion scheduled for July 13 on the foreign money issue centers on proposals by Democratic Commissioner Ellen Weintraub. Citing the high-profile reports of Russian interference in the last election, Weintraub repeatedly has called for more aggressive action by the agency but has faced resistance from the FEC’s Republican commissioners.

Also on the agenda for the upcoming meeting is a request for an advisory opinion (AO 2017-07) calling for a broad waiver of campaign finance rules to allow members of Congress to use campaign funds to pay for home security systems. Another advisory opinion (AO 2017-05) set to be discussed by the commissioners could allow a political action committee to use a Twitter handle in lieu of its full name on disclaimer notices. Also set for discussion is a proposed interim enforcement policy on use of volunteers to work on campaign mailings.

Weintraub: Foreign Ban ‘Extraordinarily Broad’

A memo written by Weintraub and set to be discussed at the meeting said the current law banning foreign money in U.S. campaigns is “extraordinarily broad” and bars foreigners from “directly or indirectly making contributions or donations of money or other things of value in connection with any federal, state or local election.”

Weintraub has suggested that this provision empowers the FEC to act on possible Russian interference, including such measures as Russia’s reported purchases of Facebook ads in hopes of swaying the presidential election, and reported Russian cyberattacks on state voter registration and campaign finance databases.

A widely reported assessment by the U.S. intelligence community concluded that Russia intervened in the 2016 election to support President Donald Trump. Many details remain unknown, however, including whether the Trump campaign or its supporters in the U.S. may have cooperated with Russia. Trump has denied there was any collusion between his campaign and Russia and has at times played down any Russian impact on the election.

The FEC had been set to discuss at its last meeting June 21 Weintraub’s proposals for new measures to deal with the threat of foreign influence in U.S. elections. The discussion was delayed, suggesting commissioners might work behind the scenes to try to forge consensus on a thorny issue that has preoccupied the FEC and other agencies since the 2016 elections.

FEC Slow to Act on Cases

Whether any progress can be made by the FEC, which is deeply divided along partisan lines, remains uncertain. The commissioners did agree in early 2016 to expedite more than a dozen enforcement cases dealing with allegations of foreign influence, but none of these cases has yet been resolved and publicly released.

FEC Chairman Steven Walther, who holds a Democratic seat on the commission, expressed frustration during a commission meeting in May at the slow pace of progress on enforcement matters. Walther suggested the FEC needs to do more to come to grips with the issue of foreign money in U.S. elections, though he didn’t specifically mention Russian intervention in the 2016 presidential race.

Walther said at the May meeting that the agency faced 15 pending cases of alleged illegal foreign campaign money at the beginning of 2016. He didn’t provide any details about the cases or say if they are progressing toward resolution. FEC enforcement matters are handled in strict secrecy until they are resolved.

Walther said the FEC had an obligation to tell the public more about what the FEC “can and can’t do” regarding allegations that foreign money was allowed to influence U.S. elections last year. He indicated his comments were prompted from frustration that the FEC hasn’t moved faster to resolve the enforcement cases involving foreign money allegations and said the agency should at least provide more information to the public about the extent of campaign finance law restrictions on foreign influence.

The new analysis on the FEC website, which reviewed commission precedents and court decisions on foreign money in U.S. campaigns, appears to address Walther’s call for the agency to increase its outreach efforts on the issue.

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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