Ellen L. Weintraub is chair of the Federal Election Commission
Concerns about foreign attempts to intervene in our political system date back to the founding of our republic. As chair of the Federal Election Commission, I am gravely concerned about ongoing efforts by geopolitical adversaries to undermine our democracy. It is critically important that everyone involved in U.S. politics understands the law, recognizes the threat, and confronts and contains it.
While the ban on foreign national spending in our elections is well established, unequivocal and clear on its face, a lot of people have raised good questions about the law’s scope.
It’s wide. Any amount of U.S. election spending by a foreign national is illegal. In 2012, the Supreme Court agreed with then-Judge Brett M. Kavanaugh’s conclusion that Canadian lawyer Benjamin Bluman’s proposed activity was illegal — not just his three proposed $100 campaign contributions but also merely paying to copy a flier supporting President Barack Obama’s reelection to hand out in Central Park. Bluman’s proposed activities were deemed illegal even though he hailed from a closely allied country, was lawfully working in the United States and had proposed spending only an inconsequential amount of money. That’s how broad the foreign national political spending ban is.
Bluman’s cash would clearly have been a contribution. But what about intangibles? Lately, I have been asked repeatedly whether information can constitute “a thing of value” under the law. It can. Campaign finance law recognizes that not all donations are cash or physical items. One way to think of it is to ask: Is the information something someone would pay for? Did someone incur costs in acquiring the information?
Political information — think polling data, opposition research and contact lists — is costly to generate. Campaigns pay dearly to acquire such information, either generating it themselves or buying it from vendors. Such information can, therefore, be a contribution if a campaign pays someone else less than fair-market value for it. And if the contributor is a foreign national, it is an illegal contribution.
So, can a campaign go out and buy phones from South Korea’s Samsung? Yes. That’s just a purchase. Samsung is not owed anything beyond the price. The transaction is reported as an expenditure. Can the campaign get those phones from Samsung for free or at a special low price? No. That’s a contribution — an illegal foreign national (and corporate) contribution — potentially making the campaign beholden in some way to a foreign national. That’s a problem. If all this is done in secret, it’s even worse; the power to expose the wrongdoing gives the foreign national or government secret leverage over the candidate.
Why do we care so much about all this? The Bluman case upheld the legality of the foreign national political spending ban as an exercise of national sovereignty, our right to define “our national political community” and to prevent “foreign influence over the U.S. political process.”
But let’s set aside the law for a moment. It’s not just fear of jail or fines that should keep American candidates from soliciting, accepting or receiving support from foreign countries. Much more is at stake here: Honor. Decency. Loyalty. We want our leaders to aspire to the highest standards. To revere the political system that has supported the world’s oldest democracy so well for so long. And, most of all, to be laser-focused on advancing the best interests of our country. And no other.
This nation has shed blood, tears and treasure over almost 2 1/2 centuries safeguarding our democracy and the right of U.S. citizens to choose American leaders and policies.
We did not pay that price just to stand by while foreign governments reach their tentacles into U.S. politics. These governments act — always — to advance their own agendas, never America’s.
In 2016, a foreign adversary launched a wide-ranging attack on our nation’s robust political debate, advancing its agenda with weapons of discord and division. This sort of aggression must be repelled just as surely as if it were an invading army.
The path is clear: Bipartisan bills before Congress would shore up our cybersecurity defenses and impose real costs on foreign intervention. Americans must speak with one voice to demand that Congress act and to make clear that we reject every effort by every foreign government to hijack our political process.