This part addresses conflicts of interest between a president’s exercise of constitutional authorities for the general public welfare, and his or her personal (including financial) and political self-interest. Trump has raised this issue in multiple contexts in ways that have no precedent in American history. Prior to Trump, norms rather than legal commands did almost all the work of regulating and, for the most part, preventing these conflicts of interest from arising or appearing to arise. Trump has made clear that norms alone do not suffice.
The chapters in this part focus on reforms arising from five major problems in this vein that emerged or grew untenable during the Trump presidency:
One of the more arresting charges against President Trump in former National Security Adviser John Bolton’s memoir was that Trump asked the leader of the People’s Republic of China, Xi Jinping, to “ensure he’d win” the 2020 election by mobilizing China’s “economic capability” to buy more American agricultural products and help him secure the farm state vote. [15] Bolton also alleged that Trump “offered to reverse” criminal law enforcement prosecution against the Chinese telecommunications company Huawei if Xi reached a trade deal—an offer, Bolton claimed, that was “primarily about getting Trump re-elected in 2020.” [16]
Bolton’s charges raise the issue of a president’s or presidential candidate’s establishment of a mutually beneficial alliance with a foreign government to help win or hold office, in return for policy concessions to the government at the time of the deal or if electoral success is achieved. His allegations are hard to verify as we write these words, but they ring true because similar charges have been rife throughout Trump’s presidency.
The Trump 2016 presidential campaign’s various contacts with Russian officials and agents led to the appointment of a special counsel, whose investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” but did establish that “the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.” [17] Then, in 2019, an executive branch official, acting under whistleblower protection, alleged that the president had solicited the assistance of Ukraine in investigating a leading candidate for the Democratic Party’s 2020 presidential nomination. This episode resulted in a House vote to impeach Trump and a Senate trial that ended in acquittal.
We are less interested in this chapter in relitigating these much-covered events than in understanding and redressing the major gaps that they revealed in U.S. law concerning foreign state influence on U.S. elections. Any such influence presents a special threat if the foreign power finds a willing partner in an American president or presidential candidate, since the partnership would help the foreign power target its resources to achieve maximum political impact. This was the new and dangerous threat that became salient and plausible during the Trump era, and it is the primary focus of our proposed reforms.
Background
The controversies of 2016–2020 occurred against the background of long-standing American concern about foreign powers seeking illicit channels of influence over the U.S. government. James Madison was among those who believed that the “two great evils to be avoided" in conceiving the presidency were a “cabal at home and influence from abroad.” [18] The Emoluments Clause is one expression of this anxiety. Another is the constitutional prohibition on the election of a president who is not a natural-born citizen.
At various times in American history, the fear of insidious foreign state political conspiracies fomented what could be fairly described as panics. The “red scare” of 1919–1920 prompted a frenzied search for anarchist and communist subversives outside the U.S. government who were dedicated to overthrowing it. McCarthyism in the 1950s shifted the concern to communist infiltration of the U.S. government that sought to surreptitiously sway American policy in favor of foreign state interests. Congress investigated and enacted laws that aimed to root out communist influence and conspiracies. In 1959, in a sign of the anxious times, Richard Condon published The Manchurian Candidate , a best-selling tale of a foreign power’s plot to elevate to the presidency a politician under its control. [19]
Yet until the 1960s, American legal reforms did not specifically address the various ways that foreign powers could act to influence the electoral process. It certainly did not anticipate or seek to address the threat of the potential complicity of American presidents and presidential candidates in foreign electoral interventions. The threat was real. In 1968, the Soviet Union’s ambassador to the United States, Anatoly Dobrynin, carried out instructions from Moscow to offer Democratic candidate for president Hubert Humphrey “any conceivable help in his election campaign—including financial aid.” [20] Over breakfast with Dobrynin, Humphrey rebuffed the offer. The Soviet ambassador had made a similar offer to Adlai Stevenson in early 1960, which was also rebuffed.
There was at least one instance of an alliance between a presidential candidate and a foreign power—during the 1968 presidential election. Late in the campaign, Richard Nixon, through intermediaries, reached an agreement with the South Vietnamese government to resist an eleventh-hour initiative by President Lyndon Johnson to achieve peace between North and South Vietnam. We can never know whether this episode was a factor in Nixon’s victory over Democratic nominee—and Johnson’s vice president—Hubert Humphrey. When the episode came to public light long after the Nixon presidency, it was received as one more sordid exhibit in the record of a uniquely scandalous presidency.
In 1966, Congress took the first step toward regulating foreign state influence over the electoral process when it amended the Foreign Agents Registration Act of 1938 (FARA). [21] FARA was enacted in response to findings about the public relations and propaganda activities of German agents in the United States in the years preceding World War II. The law aimed to ensure that “the United States Government and the public know the source of certain information from foreign agents intended to influence American public opinion, policy, and laws.” [22] The original act required agents of foreign governments who acted “within the United States” to register with the attorney general and disclose the foreign government’s identity and their activities on its behalf. [23] It did not then impose limits on foreign national spending directly, or through U.S. agents, on federal, state, or local elections.
The 1966 FARA amendments brought direct electoral intervention within the scope of the statute by requiring covered agents to disclose campaign contributions. The Senate Foreign Relations Committee explained that the amended FARA aimed to address the problem of foreign agents “whose object is not to subvert or overthrow the U.S. Government, but to influence its policies to the [satisfaction] of his particular client.” [24] The attention paid to political contributions in particular reflected congressional findings that there was “growing use” of this “means to influence Government policies.” [25] But the law applied only to the activities of U.S. agents within the United States, not to initiatives undertaken directly by a foreign state, and it did not reach any political activity coordinated by a foreign power with an American political candidate.
The Watergate reforms of the 1970s imposed a new prohibition on foreign national political contributions to American political campaigns. The 1974 amendments to the Federal Election Campaign Act of 1971 (FECA) contained this core prohibition, which was retained in Congress’s revision of the law in the wake of the Supreme Court’s constitutional review in Buckley v. Valeo : [26]
It shall be unlawful for a foreign national directly or through any other person to make any contribution of money or other thing of value, or to promise expressly or impliedly to make any such contribution, in connection with an election to any political office or in connection with any primary election, convention, or caucus held to select candidates for any political office; or for any person to solicit, accept, or receive any such contribution from a foreign national. [27]
The “contributions” subject to the prohibition were defined broadly to apply to anything of “value,” which includes an “in-kind” contribution such as a good or service that a donor might buy for a candidate’s use or benefit. [28] (As we explain later in this chapter, the reach of the term “thing of value” was of central importance in the special counsel investigation of contacts between the 2016 Trump presidential campaign and Russian nationals representing themselves to be acting on behalf of their government.)
The amended FECA structure, like the 1966 FARA amendments, did not aim to regulate a presidential campaign that actively colluded or coordinated with a foreign power. It was concerned narrowly with the growing temptations of the campaign money chase. In this sense, the law conceptualized foreign interests much like any special interest seeking favor with candidates by underwriting their campaign costs. It prohibited candidates from soliciting foreign contributions, and from accepting them. But in this and other material respects, the prohibition largely tracked with the ban on contributions to candidates and parties from U.S. corporations and labor unions. Congress did not focus on the possibility of a federal candidate engaging with a foreign power in a mutually rewarding political alliance.
Congress’s actual focus was on display in the one pertinent investigation of a presidential election prior to the Trump administration. In 1996, the Republican-controlled Congress investigated allegations of foreign sources of financing of President Bill Clinton’s reelection campaign. Republican leadership first lodged the sensational charge that the People’s Republic of China had hatched a scheme to funnel foreign funds to the Clinton campaign to enhance its competitive advantage. The emphasis soon shifted to allegations that the Clinton campaign’s thirst for resources had led it to loosen “vetting” and other fundraising disciplines that would have guarded against foreign-source contributions. Democrats responded with their own case against comparably lax fundraising practices on the Republican side, which had also opened the door to foreign support. The purported foreign state conspiracy faded from view, and the episode resulted in calls for a tightening of the campaign finance laws to close “loopholes” exploited by a range of interests, including but not limited to foreign state actors. [29]
In a partial (and delayed) response to this episode, Congress enacted the Bipartisan Campaign Reform Act of 2002, popularly known as the McCain-Feingold Act. [30] A relatively minor provision in the act clarified and tightened but did not substantially alter the then-existing ban on foreign national campaign contributions. It specified that the prohibition on foreign national spending in federal elections applied to “independent expenditures,” such as the funding for advertising on behalf of (or in opposition to) candidates without coordination or prior agreement with their campaigns. It closed loopholes for the potential receipt of foreign money by parties and enhanced the criminal penalties for violations. Nothing in the reform tackled the question of a more complex, concerted foreign state alliance with a candidate, including the question of whether and when such an alliance would implicate the making or receipt of contributions in the form of a “thing of value.”
This historical sketch of the American concern with foreign state electoral intervention would not be complete without noting the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission . [31] The court struck down on First Amendment grounds the federal law prohibition on independent, uncoordinated spending by corporations and unions to support or oppose a candidate. The decision did not purport to affect the foreign national independent spending ban. Many observers worried, however, that the erosion of the corporate ban could create openings for foreign nationals to utilize wholly owned U.S. companies to move money under their direction into U.S. elections. In his January 2010 State of the Union address, President Obama famously (and controversially) made this point with members of the Supreme Court seated before him. Citizens United , he contended, “will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” [32]
In 2011, a three-judge district court for the District of Columbia considered a First Amendment challenge, premised on the implications of Citizens United , to the comprehensive prohibition on foreign national spending in U.S. elections. The case, Bluman v. FEC, involved two individual foreign nationals who wished to make direct contributions, publicly reportable and within dollar limits, to various candidates. In an opinion by then-Judge Brett Kavanaugh, the court rejected the First Amendment challenge and upheld the constitutionality of the law. It reasoned:
It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process. [33]
The Supreme Court summarily and unanimously affirmed the opinion. [34]
With the exception of the later-discovered secret negotiations between Nixon’s campaign and the South Vietnamese government, we know of no president or presidential campaign prior to Trump’s that was accused of an active political alliance or collusion with foreign interests. The legal principles canvassed thus far leave a great deal of room for that possibility, however. A president or presidential campaign can provide such a foreign state with major advantages in interfering with presidential elections. A request, suggestion, or guidance from the candidate or his or her team may help enhance the efficiency and effectiveness of the foreign state intervention. Those suggestions could serve to guide the foreign state actor in their choice of political messages or the geographic targeting most consistent with the campaign’s strategic objectives. By directing or materially influencing foreign state spending and other activity, the candidate could benefit substantially as much as he or she would if the money were provided to the campaign for its direct expenditure for the same purpose.
Any such collaboration between a foreign state and a president or presidential campaign might rise to an express or implicit “deal” in which the foreign state bargains for special policy consideration or treatment in return for the support it provided. But even a president or candidate who did not incur a formal debt or make a clear agreement to receive political support for services rendered may later come under the pressure of various forms of obligation. In the context of domestic campaign finance regulation, the Supreme Court has characterized the concern as a “subtle but equally dispiriting form[] of corruption,” one “[j]ust as troubling to a functioning democracy as classic quid pro quo corruption.” [35] If this is an issue in the sphere of campaign finance law as it applies to politicians unduly influenced by fellow citizens, then it is much more so where the obligation is incurred toward a foreign government.
The Federal Election Commission (FEC), the federal agency tasked to oversee elections, has been unable to devise a regulatory answer to these concerns, and we discuss its deficiencies in connection with the reforms we propose. Before doing so, we should say a brief word about why the bribery laws are also not currently structured to address this problem.
The primary bribery statute prohibits a public official from receiving or accepting, or agreeing to receive or accept, “anything of value personally … in return for … being influenced in the performance of any official act.” [36] The 2020 articles of impeachment against President Trump did not include a count on bribery. But the House Judiciary Committee impeachment report concluded that Trump in the Ukraine matter violated the bribery statute because the “favor” he requested constituted a personal benefit of helping him win the 2020 presidential election.
A bribery analysis in this context would require difficult distinctions between deals for the personal benefit of a politician and arrangements more in the nature of political “logrolling.” Politicians routinely make deals with an eye on the political return, and it is not easy to separate out those cases where the political bargain justifies the application of legal sanctions. A president might seek the cooperation of a foreign government in timing the announcement of a successfully negotiated executive agreement or treaty for maximum political effect. This cooperation could extend to choices in the wording of joint statements, or the planning for the setting for the announcement. And the foreign government might yield on all these “favors” in the interest of getting an agreement that may stand up well on the policy merits. The application of the bribery statute in this and related contexts would cut deeply into the conduct of “politics” in the commonly accepted sense and is far beyond our aims here.
Unlike the bribery statute, the Federal Election Campaign Act of 1971 [37] targets a distinctive form of foreign national electioneering: spending to make campaign contributions or to finance direct contact with voters to influence an election. But it is similarly not structured to deal effectively with other more complex channels for foreign electoral influence. Its focus is on support that can be translated into dollar values , and the law exempts from prohibition various foreign national campaign activities that cannot be easily quantified, such as personal time that a foreign national may volunteer to a campaign. This exemption covers such a volunteer’s use of the internet to communicate support for or opposition to a candidate, or assistance in the development of a political committee’s website and other intellectual property. [38]
Even where more substantial, institutional foreign national interests are involved, the rules distinguish between money spent directly for campaign activity and other more subtle but still significant avenues of influence. Consider the case of a U.S. corporation wholly owned by a foreign parent. Under the FECA and implementing regulations, the U.S. executives of the subsidiary may establish a political action committee, or PAC, to support candidates in federal elections. The U.S. executives may fund the U.S. subsidiary PAC with personal contributions; the PAC, in turn, may contribute to candidates. This PAC serves a corporate political purpose—and, potentially and perhaps invariably, the foreign parent’s political purposes. A corporate official who is a foreign national may not fund or “directly or indirectly participate in” this PAC activity, but the PAC’s activities are otherwise permissible, because the money that the PAC raises and spends comes out of American pockets. In this way, the law disregards the overall organizational context within which the establishment of the PAC occurs and foreign political purposes may be advanced. The executives of the U.S. subsidiary will typically need no explicit direction to understand the interests of the parent to whom they are ultimately accountable.
Another example concerns foreign nationals who participate in campaigns by volunteering their time to a candidate, party, or other political organization active in U.S. elections. The FEC’s rules do not permit foreign nationals to control or determine the spending of funds raised for campaigns. But the agency does allow them to devote valuable time as uncompensated volunteers to the candidates or political committees of their choice. Because the campaign finance law exempts volunteer activity, the agency has applied the allowance to both foreign nationals and U.S. citizens.
The FECA’s anchoring concern with money—a quantifiable relationship—becomes even more apparent when it is contrasted with FARA’s focus on disclosure. The agent of a foreign principal for FARA purposes need not be compensated in order to be subject to that statute’s reporting requirements. Nor does the statute require that an agency relationship be based on foreign “direction or control.” A “request” that the U.S. citizen act as agent is sufficient to establish a regulated agency relationship. And, in serving the interests of the foreign principal, the agent need not make contacts with U.S. officials to bring his or her activities within reach of the statute. The mere provision of advice, as a “public relations counsel” or “political consultant,” suffices to bring the relationship within the law’s reporting requirements. In other words, FARA disclosure requirements sweep widely in addressing the potential for foreign influence over the U.S. governmental process.
The federal campaign finance law’s limits in addressing foreign nationals are partly a function of the perceived constitutional barriers to more extensive regulation. The courts have always closely scrutinized the burdens on Americans’ free speech and association posed by congressional regulation of campaign spending. These constitutional issues have become implicated even in the rules targeted at foreign nationals. Foreign nationals cannot assert First Amendment protections for campaign-related activity, but Americans retain those rights when drawing on advice or encouragement from foreign nationals or when amplifying their views. Rules that are either unclear or overbroad as applied to foreign nationals could unduly affect U.S. citizens in conducting First Amendment–protected activity. As we discuss later in this chapter, the special counsel’s report on the Russia investigation expressed concern that the application of the campaign finance law to a June 2016 meeting between senior Trump campaign aides and representatives of the Russian government might present such constitutional issues.
These types of constitutional concerns add to the difficulties encountered in applying this statutory framework to the new, growing concern with foreign government intervention in the U.S. electoral process. There are other limits on direct regulation in this context. For example, it is difficult to conceive of a prohibition on a presidential candidate’s publicly seeking foreign support, such as when Trump in 2016 exhorted the Russians to locate missing Clinton emails. Once WikiLeaks published emails that the Russians stole, Trump’s campaign was constitutionally free—as were news organization and other U.S. citizens—to recirculate and draw attention to them. Nor, for that matter, were the Russians or any other foreign government prohibited from expressing opinions about issues with direct relevance to, and potential impact on, the presidential election. The Russian government cannot finance ads in the United States calling for a vote for Trump. But it can pay for politically charged “issue advertising” that dovetails with his campaign’s messaging on major issues, such as the dangers of inadequately controlled immigration or the need for a less antagonistic relationship with Russia.
But, as the Bluman case that was affirmed by a unanimous Supreme Court makes clear, Congress has broad authority to implement effective prohibitions on foreign electoral interference. It may draw lines, even ones that may affect U.S. citizens, that more tightly circumscribe foreign national campaign-related activity than is possible within the traditional campaign finance law framework as it applies domestic political actors.
In our discussion of potential reforms, we suggest how the lines could be redrawn and note the potential contributions of specific legal reforms to the development or reinvigoration of norms. But, first, we review the ways in which President Trump and his campaign exposed the weakness of the norms and laws meant to prevent foreign national interference in U.S. elections.
The Trump Era
The 2016 presidential election, and President Trump’s preparations for a 2020 reelection campaign, brought questions of “collusion” with foreign state interests to the forefront of American domestic and foreign affairs. Here, we briefly recap these well-known events.
Russia and the Special Counsel Investigation
The order appointing Robert Mueller as special counsel authorized him to conduct an investigation concerning “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” [39] Mueller’s final report found and detailed “numerous” such links. [40]
Most notable among the many links was the meeting at Trump Tower in June 2016 between the campaign’s senior management—Donald Trump, Jr.; campaign chairman Paul Manafort; and Trump’s senior adviser and son-in-law, Jared Kushner—and a delegation from Moscow. Trump Jr. had arranged the meeting after an intermediary told him by email that the “‘Crown prosecutor of Russia ... offered to provide the Trump Campaign with some official documents and information that would incriminate [Democratic presidential nominee] Hillary [Clinton] and her dealings with Russia’” as “‘part of Russia and its government’s support for Mr. Trump.’” Trump Jr. answered that “‘if it’s what you say I love it,’” and he arranged the meeting. The Trump team came to the meeting “expecting to receive derogatory information about Hillary Clinton from the Russian government.” [41] At the meeting, the Russians made claims about information on the Clinton campaign but could not substantiate them.
In addition to these and other contacts between the Trump campaign and people with ties to the Russian government, the Mueller Report established that the campaign knew beginning in June 2016 that WikiLeaks would release information damaging to the Clinton campaign. It was around this time that Trump stated publicly that he hoped Russia would recover emails supposedly missing from Clinton’s private server when she was secretary of state. The special counsel concluded that the Trump campaign “showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.” [42]
Despite these contacts and expectations, the special counsel investigation “did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities,” and it concluded that there was insufficient evidence to support criminal charges of various kinds, including ones related to the core concern with any “assistance [Russia provided] to the [Trump] Campaign in exchange for any sort of favorable treatment in the future.” [43] It was not enough that the Trump campaign was interested in the support and signaled its openness to it, or that the Russians might have responded to the signals. Mueller concluded that an actual agreement, supported by the evidence, was required to support criminal charges.
Mueller also concluded that constitutional and other unresolved ambiguities in the campaign finance laws—especially on the question of whether and when opposition research could constitute a “thing of value” for purposes of the foreign contribution ban—precluded a prosecution related to the Trump Tower meeting. Moreover, he did not find that the Russians delivered any such information directly to the Trump campaign. Rather, using WikiLeaks as the means of distribution, the Russian government hacked and released emails sent and received by the Clinton campaign chairman. Mueller did not uncover evidence that the Trump campaign had collaborated in the plan to hack this account.
In sum, Trump’s engagement with Russia presented the special counsel with what appeared to him to be significant complications of fact and law. Russia had every reason to believe that Trump and his campaign welcomed its intervention, and it did intervene. What Mueller found to be missing, for purposes of the legal case that he evaluated, was the Trump campaign acting as co-conspirator rather than cheerleader.
Ukraine and Impeachment
On July 25, 2019, President Trump had a telephone conversation with Ukraine President Volodymyr Zelensky. After Zelensky had thanked Trump “for your great support in the area of defense,” Trump asked Zelensky for several favors, including this one concerning former Vice President Joe Biden, a leading candidate for the Democratic nomination for president:
The other thing, There's a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it …. It sounds horrible to me.
Zelensky responded by pledging to cooperate. [44]
The call became public with news reports of a whistleblower complaint alleging that Trump in this conversation, and in subsequent actions, sought to condition the release of military aid appropriated for Ukraine on its government’s compliance with the requested “favor” of an investigation into Trump’s political rival. [45] The White House responded with the release of a summary transcript of the call. The president pronounced the call exculpatory. House Democrats disagreed, and, on September 9, 2019, the speaker of the House tasked the House Permanent Select Committee on Intelligence (the House Intelligence Committee) with the initiation of an inquiry into whether the president’s actions constituted an impeachable offense. Two days later, the Trump administration released the aid to Ukraine—after a delay the Government Accountability Office later concluded was a violation of the Impoundment Control Act of 1974. [46] Even after his actions were discovered, Trump continued to urge foreign governments (including Ukraine and China) to investigate Biden.
After conducting hearings, the House Intelligence Committee found that Trump had solicited foreign interference in the 2020 election and sought to procure it with official acts, namely, a head of state meeting at the White House and the release of $391 million of vital military aid, on the announcement of these investigations. [47] The committee concluded that the withholding of military aid lacked “any legitimate foreign policy, national security, or anti-corruption justification” and “by withholding vital military assistance and diplomatic support … President Trump compromised national security to advance his personal political interests.” [48] The committee split entirely along party lines in reaching this decision.
The House Intelligence Committee then referred the findings to the House Judiciary Committee, which heard testimony on the applicable constitutional standard and then, again along strict party lines, voted on the articles of impeachment. The full House voted to impeach President Trump on December 18, 2019. Article I, charging the president with “abuse of power,” cited his solicitation of Ukraine’s intervention in the 2020 election through that government agreement to publicly announce investigations “that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.” [49] The Russian matter appeared by indirect reference: “These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections.” [50] The Senate tried this charge, and another finding that the president had obstructed the House’s inquiry, and acquitted him.
Reform
A “Joint Statement” on 2020 election security issued by key federal government departments and agencies stressed the intention of “[o]ur adversaries … to undermine our democratic institutions, influence public sentiment and affect government policies.” It added that “Russia, China, Iran, and other foreign malicious actors all will seek to interfere in the voting process or influence voter perceptions.” [51] Potential “collusion” with a president or presidential campaign in such foreign state influence operations will likely continue to be a facet of these increasingly sophisticated foreign government interventions in the American electoral process. The Trump-era investigations and public controversies have exposed many uncertainties and deficiencies in the laws governing how presidents and campaigns can interact with foreign governments. We propose three major reforms to meet these concerns.
Campaign Reporting of Foreign Government Political Contacts
Special Counsel Mueller found that “Russian-government-connected individuals and media entities began showing interest in Trump’s campaign in the months after he announced his candidacy in June 2015.” [52] As described, the Russians’ intense interest included communication between the candidate’s son and a correspondent who professed to speak for the Russian government in conveying its support of Trump and desire to help his campaign. The Trump campaign, however, never brought these contacts and communications to the attention of the Federal Bureau of Investigation (FBI). Indeed, candidate Trump publicly denied any special connection with or relationship to Russia.
A requirement that candidates or campaigns report contacts with foreign governments and their agents must be central to any reform program responding to the events of 2016. In 2019, Senator Mark Warner, the ranking Democrat on the Senate Select Committee on Intelligence, introduced a bill with one version of this requirement. [53] A candidate, “official, employee, or agent” of a federal political campaign would have to disclose to the campaign committee treasurer each “reportable foreign contact” with a foreign national or someone believed to be a foreign national, along with a “summary of the circumstances” of any such contact. Contacts subject to this reporting would include the making of a contribution or donation, or the “coordination or collaboration with, an offer or provision of information or services to or from, or persistent and repeated contact with a government of a foreign country or an agent thereof.”
Under the Warner proposal, the campaign treasurer would have to notify the FEC, which within one week would make a report to the FBI. Each campaign committee would also have a public quarterly reporting obligation. The campaign would have to adopt, and the candidate would have to certify, establishment of a compliance policy that would be provided to campaign employees who, in turn, would have to certify receipt. The bill also contains “rules of construction” that state that the proposed legislation does not impose any “additional limitation” on the right of foreign nationals “to express political views or to participate in political discourse.”
In concept, a reform of this kind serves key purposes. At a basic level, it strengthens the channels of information available to the government in tracking potential foreign electoral interventions like Russia’s in 2016. It is good policy to deter candidates who may be open to and encourage foreign government support. The bill would not prohibit foreign contacts but would generate normative pressure and caution by requiring disclosure. Had there been such a law in 2016, Russians could have scheduled a meeting with the Trump campaign at Trump Tower and presented their views on Russia-America policy or their preference for the election of Donald Trump. The campaign could have “taken the meeting” but would have been required to disclose it.
The clear norm-reinforcing component is an important element of this approach. A campaign subject to this reporting requirement will pause to consider its policies on these contacts. It can be certain that any such contact will prompt press inquiries with demands for more detail than even the law requires about how the contact came about and whether substantive discussions ensued between the campaign and the foreign government. Opposing candidates will be quick to take up this line of questioning. A campaign will be under pressure to report contacts but not follow up on them, which would discourage a foreign government from further attempts (or from making them in the first place). Or in the event that the contact is benign—for example, the Belgian ambassador wishes to brief the campaign on European Union issues—a campaign might be more comfortable accepting the invitation and worry less about the political effects of disclosure.
The Warner bill is one of a number of conceivable reforms built around a notification structure. We believe that this is the right structure to respond to the core problem of a campaign’s contact and potential collaboration with a supportive foreign power. But we would urge amendments to this structure in three significant ways.
First, the reform should clearly distinguish permissible policy communications with foreign governments from impermissible campaign interference. Foreign governments have an interest in the positions of anyone who may become president; they welcome the chance for introductions or meetings that afford opportunities to “get to know” the candidates or present concerns and interests of their government. They may well make an offer of information as they urge the candidate to fashion policy stances with due regard for all material facts about their soundness and consequences. Should these types of exchanges qualify as “reportable foreign contacts,” campaigns may well be reluctant to engage in them for fear of damaging headlines and opposition attacks. It also does not seem an especially prudent or efficient use of law enforcement resources to report to the FBI a foreign government’s communication with a campaign about its interest in the candidate’s trade policy.
Moreover, American candidates burnish their own credentials in the national and foreign policy fields by inviting those discussions. It is not uncommon for major-party nominees to take trips overseas to meet with, and to be seen in serious discussion with, foreign policy leaders. Barack Obama did this in 2008, as did Mitt Romney in 2012. The law should protect this activity while subjecting to notification meetings or discussions for the purposes of sharing views on what the candidate would need to do to win—and how the foreign government could assist in that campaign objective.
The risk that should command attention is a foreign government’s offer of campaign assistance—a direct intervention in the electoral process. In this chapter’s last section, we note the importance of clarifying the application of the law barring foreign national electoral spending to the offer or provision of opposition research. In offering assistance of any kind in harming an opponent’s prospects, the foreign government has engaged in what should be a prohibited electoral intervention.
Second, the Warner bill designates the FEC as the agency to be charged with enforcing the reporting requirement. By and large, its responsibilities would be ministerial, presenting relatively little risk that the partisan make-up of the commission, its membership split by statute between the two major parties, will affect the integrity of its enforcement responsibilities, as it has on other major issues. Nonetheless, there is some risk of politicized enforcement. This is another reason, as discussed previously, why we have proposed that the Justice Department handle this and other aspects of enforcement of reforms guarding against undue foreign state interference in elections.
The Justice Department possesses authority for the criminal enforcement of the campaign finance laws while the FEC possesses jurisdiction over civil enforcement. In 1977, the FEC and the Justice Department entered into a memorandum of understanding (MOU) to govern the management of their shared responsibilities. But the department has indicated that the MOU is no longer controlling and is overdue for reconsideration. There is considerable uncertainty, including major disagreement within the FEC, about how the concurrent authority should be exercised. [54] We propose that this issue be resolved, at least in part, by having the foreign national prohibitions revised and the Justice Department given primary authority for their interpretation and enforcement.
Apart from the poor match between the structure of the campaign finance laws and the objectives of reform in this area, the FEC has been unable to do much with even the tools at its disposal. Its enforcement of the federal campaign finance laws has come under severe and sustained criticism for ineffectiveness. To be fair, the Justice Department has been criticized in its own right for laxity in the administration of FARA, especially for failure to track and curb the development of loopholes through which organizations have engaged in activities that fall outside the reach of the statute. But the indictments filed in the Mueller investigation, coupled with other issues raised about the effectiveness of Justice Department enforcement, have apparently refocused the department on more vigorous enforcement of FARA’s controls on foreign national initiatives to influence government policy and public opinion. [55] The growing problem of direct electoral interference is related, and the regulatory response is a natural one for the department to assume primary responsibility for.
The Justice Department would always have the authority to refer to the FEC matters more suitable for civil disposition. Given the high likelihood that foreign national–presidential campaign discussions of campaign activity will raise threshold questions of criminal liability more so than in routine campaign finance cases, we would see the department conducting the review of potential illegal activity in the first instance and determining whether civil or criminal process is more appropriate.
The department would also be the better choice for issuing advisory opinions on the application of the reforms to specific factual circumstances. In the case of all the reforms we propose, these questions will arise and U.S. citizens and organizations should be able to seek guidance. The FEC is now charged with issuing this guidance in the form of advisory opinions, but as a six-member agency whose appointees are split evenly between the two major political parties and often deadlock on major issues, it is not the most credible or reliable source of this guidance.
Conferring this enforcement responsibility on the Justice Department may serve a norm-reinforcing function. The FEC’s reputation for partisan division and ineffectiveness too much precedes it. The agency’s woes have been associated with the steady deterioration in the effectiveness of campaign finance laws and with aggressive legal risk-taking by political actors who wager that they can outmaneuver this civil enforcement authority or depend on commissioners affiliated with the same party to block or hinder enforcement. Lodging the lead authority in the Justice Department underscores the heightened commitment to compliance with this part of campaign finance law. It will give pause to affected political actors accustomed to lax regulation. Over time, this reformed enforcement regime may encourage more care in engaging in activities that raise these kinds of questions.
Third, we question the public reporting requirement. The disclosure to the FBI seems in tension with the public report. The agency’s counterintelligence function stands to be impaired by alerting the foreign interest to the U.S. government’s investigative interest. Should it appear that the contacts indicate a foreign intervention, as in the case of Russia in 2016, the government should be the source of that disclosure after an assessment of the national security threat and the determination of whether specific action should be taken. The surfacing of a “foreign reportable contact” is highly prejudicial in the course of a presidential campaign, and it does not seem necessary or appropriate that the campaign make a public disclosure if the campaign has met its law enforcement reporting obligation and is assisting the law enforcement inquiry. The public reporting requirement sets in motion political currents and pressures that do not advance the public policy purposes of reform along these lines.
Finally, we note that as of June 2020, efforts to pass the Warner bill in the Senate had stalled. In that month, the sponsors sought to include it in a National Defense Authorization Act, but Republican opposition forced its removal as a condition of passage of the broader measure. One Republican senator had previously denounced it as a “blatant political stunt,” [56] earning her a Twitter commendation from President Trump, who dismissed the proposed bill as a “do-over on the Mueller Report.” [57]
Prohibition of Campaign–Foreign State Political Alliances
The special counsel also considered whether any of the Trump campaign–Russia discussions or activities implicated the registration and reporting requirements of FARA. [58] Recall that FARA applies to the campaign or campaign-affiliated individuals who function as “agents” of a “foreign principal,” such as the Russian government, if they engage in “political activities” within the United States. For purposes of this statute, political activities include:
any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party. [59]
FARA has never been applied to a political alliance between a political candidate and a foreign power. Its definition of “political activities” does not expressly include any such collaboration or aim at activities intended to influence voters rather than the public more broadly, and the Justice Department has never interpreted it otherwise. FARA does include a requirement that a registered foreign agent include in the mandated public disclosures “any contributions of money or other things of value made by him during the preceding sixty days … in connection with an election to any political office or in connection with any primary election, convention, or caucus held to select candidates for any political office.” [60] Beyond this, the statute is not specifically concerned with campaign activity, and the engagement in such activity on behalf of the foreign principal is not a trigger for registration under the statute.
Moreover, a reporting requirement is an entirely inadequate answer to the danger of the relationship at issue in a president’s or presidential candidate’s solicitation and acceptance of electoral support from a foreign government. This danger calls for stronger medicine: a prohibition rather than mere disclosure.
The federal campaign finance law prohibition does not cover the kind of political alliance with which we are concerned here. As noted, it is concerned with direct, quantifiable foreign national spending to influence elections. As the Mueller Report demonstrated, it does not clearly, or without constitutional difficulties, reach problematic relationships between a candidate and a foreign national except where “a thing of value,” judged with reference to the commercial market, passes between them. A different approach is required—one better tailored than either FARA or the FECA—to address the risks that became apparent in the 2016 election.
We propose amending and extending the scope of Section 219 of the U.S. criminal code, which currently prohibits, on pain of fine or jail, “public officials” from entering into a FARA reportable relationship. [61] This law as originally enacted in 1966 applied to an “officer or employee of the United States in the executive, legislative, or judicial branch of the Government.” [62] In 1984, Congress amended the law to specify that it applied to “public officials” of the United States. The amendment defined “public officials” to include members of Congress as well as “an officer or employee or person acting on behalf of the United States ... in any official function.” No legislative history explained the nature of the change, and the amendment did not on its face bring within the prohibition’s scope the president, or a major-party candidate or nominee for president. In an opinion issued in 1987, the Justice Department’s Office of Legal Counsel opined that the purpose of the law was to “bring Members of Congress within [Section 219’s] prohibition” and to subject covered public officials to criminal penalties “[e]ssentially … for conduct that would usually constitute a violation of the Emoluments Clause.” [63] It suggested in this way that the statute was aimed at compensated agency relationships, prohibiting them altogether.
The Office of Legal Counsel provided no citation or analysis for its claim that Section 219 is an aid to enforcement of the Emoluments Clause, and indeed, it acknowledged that Section 219 “is both broader and narrower than the Emoluments Clause itself.” [64] By its terms, Section 219 goes further than the Emoluments Clause and constitutes a prohibition on a public official entering into an agency relationship that would otherwise give rise, for all other U.S. citizens, to a FARA reporting obligation. As such, it serves as a strong foundation on which to address, with appropriate revision, contacts between a candidate, or his or her campaign, and a foreign national to collaborate in campaign-related conduct.
We propose to amend Section 219 to create a new tier of regulation of agency relationships between U.S. persons, citizens, or organizations and foreign nationals. Under FARA, a foreign principal’s advancement of its public policy or public relations goals through an agency relationship with a U.S. citizen or organization is permissible, but reportable, except in the case of such a relationship with a public official, which is prohibited. Section 219 as amended under our proposal would prohibit any such relationship with public officials and presidential candidates for the purpose of influencing an election. The aim is to ban any case where a presidential campaign and foreign nationals communicate in the service of their mutual goal of seeing the candidate elected.
The amendments we propose would include in principal part:
The application of this reform to the Trump Tower case illustrates how this reform would work. The Russians informed the Trump campaign that the Russian government supported Trump’s election and would come to the United States with an offer of opposition research to use against Hillary Clinton. Under a revised Section 219, this would have constituted a specific and unambiguous “request” for cooperation or action in concert to conduct election-related “political activities.” Once the Trump campaign had acceded to the request, it would have entered into a prohibited agency relationship subject to criminal penalties. The statute as reformed would also apply in this situation if the Trump campaign had in the first instance solicited this support. Whether the candidate would share personally in the liability would depend on evidence of his or her knowing involvement.
Our proposal would make illegal not just the Trump Tower episode. It would ban and criminalize any relationship between foreign states and their agents, on the one hand, and public officials (including the president) and presidential candidates, on the other, for the purpose of influencing an election. For example, Section 219 would make criminal the Nixon campaign’s 1968 engagement with the government of South Vietnam, discussed earlier. It would prohibit a candidate or his or her campaign from engaging with a foreign government in a discussion of how it could encourage U.S. communities with strong heritage identification with the foreign country to turn out to vote for that candidate. It would similarly bar a candidate’s or campaign’s planning with a foreign national to organize a program of public communications through the internet from overseas, anonymized accounts to distribute messages consistent with the campaign’s themes and issue priorities.
FECA contains reasonable exceptions to the foreign national electioneering prohibition that could be preserved under our proposal. Individual foreign nationals may now personally volunteer time to a campaign, so long as they do not raise money for the campaign or participate in determining how the campaign’s funds are spent. For example, an exchange student from France could participate in a neighborhood canvass, helping to distribute campaign literature. Moreover, a campaign may purchase campaign-related materials from foreign commercial firms, subject to the requirement that it pay “the usual and normal charge” for the good and service, which is defined as the prevailing “commercially reasonable rate.” [65] These and similarly limited foreign national involvement in U.S. political campaigns would be allowed to continue under our proposed reforms, which are focused on prohibiting agreements between campaigns and foreign actors, such as foreign states, to collaborate in their mutual interest to influence an election.
“ Things of Value” Provided by a Foreign Power to a Campaign
Special Counsel Mueller determined that the federal campaign finance laws did not clearly capture information, such as opposition research, that a foreign government might offer to a presidential campaign. He acknowledged the breadth of the definition of contribution—“a thing of value”—and of the basis in FEC rulings for treating opposition research as such a contribution “in-kind.” At the same time, he noted that there was no judicial precedent on this issue, which he seemed to relate to the unresolved constitutional questions about when an exchange of information was a regulable contribution rather than First Amendment protected. Mueller expressed concern that an expansive reading of the law on this issue could bleed into a constitutionally troubling criminalization of information-sharing between a U.S. campaign and a U.S. citizen. [66]
The issue requires attention because there is no reason to believe that a foreign government embarking on interference in a U.S. election would not resort in the future to the same means of supporting its favored U.S. campaign. Most conventional opposition research is not of the kind that a foreign government possesses special advantages in producing. But, as documented at length in the Mueller Report and related indictments, a foreign government is in a position to do what the Russians did—deploy its intelligence or diplomatic services to extract information through hacking or other programs that a U.S. campaign would not have a legal means of obtaining on its own. Therein lies the foreign power’s comparative advantage in the opposition research market. Moreover, as Mueller noted, “A foreign entity that engaged in [opposition] research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.” [67]
We propose a reform that addresses the problem without risking the spillover effect on U.S. citizens and purely domestic politics that concerned Mueller. This could be accomplished by amending only that portion of FECA that bans contributions from foreign nationals, [68] and clarifying that a “thing of value” extends to services and materials that may not have a clearly identified market value but that a campaign deems useful. The law could define a foreign national contribution of a “thing of value” to include any “information, whether provided orally or in writing, that a foreign government or political party (or any person acting on their behalf) provides to a candidate or authorized committee, or to the officers, employees, or agents of such a committee, for the express purpose and intended use of promoting the election or defeat of any clearly identified candidate.” The reformed law would prohibit a candidate, a campaign, or the campaign’s agents, from soliciting such a prohibited contribution from a foreign national.