5 Ways to Interfere in American Elections—Without Breaking the Law

Russia’s apparent interference in the U.S. presidential election is a big story, but it’s part of an even bigger one: the ease with which foreign actors can insert themselves into the democratic process these days, and the difficulty of determining how to minimize that meddling.

Witness the disagreement in recent weeks among leaders of the U.S. Federal Election Commission. Democratic Commissioner Ellen Weintraub has urged the regulatory agency to plug the types of “legal or procedural holes” that enabled Russia to pose “an unprecedented threat to the very foundations of our American political community,” while her Republican colleagues have resisted her proposed fixes. “There are many historical examples of overreaction to foreign threats in American politics,” the Republican Commissioner Lee Goodman observed. Just because a foreign government attempted to mess with American democracy in 2016 doesn’t mean all foreign involvement in U.S. politics is nefarious—or worth shutting down.

The intense focus on the Russian government’s campaign to hurt Hillary Clinton and help Donald Trump—and whether or not the Trump campaign illegally conspired with the Kremlin—has illuminated the fuzzy boundary between proper and improper interactions between foreigners and political operatives in the United States. But it’s also obscured the various completely legal and questionably legal ways that foreign governments and foreign nationals can seek to influence the course of American politics.

Consider a few examples:

1) Deploy state-run news organizations

A number of state-supported news organizations, including Russia’s RT, China’s China Daily, and Qatar’s Al Jazeera, function in the United States as “big-business foreign-influence operations,” according to Ben Freeman, the author of a book on how foreign governments try to shape U.S. foreign policy. These organizations regularly produce run-of-the-mill journalism, but their coverage is often infused with the political agenda of their patron governments as well. The U.S. intelligence community’s public report on Russian intervention in the 2016 presidential campaign, for instance, details how Moscow’s multimedia “propaganda machine”—in particular the international news agencies RT and Sputnik—parroted Kremlin messaging on the virtues of Trump, vices of Clinton, and corruption of American democracy, seizing on conspiracy theories and hacked Democratic Party emails from WikiLeaks. (Here’s a sample RT headline for an interview with WikiLeaks founder Julian Assange, published just days before the U.S. election and now boasting 115,000 Facebook likes: “Assange: Clinton & ISIS funded by same money, Trump won’t be allowed to win.”)

Yet U.S. law is murky on whether such an outlet needs to register as a “foreign agent” with the Justice Department, as do U.S.-based lobbyists who engage in political activities on behalf of a foreign government. (China Daily ’s U.S. affiliate has registered, while RT, which rebranded from Russia Today several years ago to downplay its Russia connections, has reportedly designed the business structure of its U.S. arm to bypass the Foreign Agents Registration Act, or FARA.) The result, Freeman told me, “is that the American voter doesn’t have a really good sense that [the media outlets] are foreign-funded, state-run operations. If you’re ... scrolling through your television channels and you come across RT, and you see a news segment that’s favorable to the Trump [campaign] or critical of the Hillary campaign, you might think it’s just an objective news source, when in fact this is a Kremlin-funded organization.”

Freeman noted that while bipartisan legislation recently introduced in the Senate to rectify this problem wouldn’t remove media outfits like RT from American airwaves or social media, it would pressure such organizations to report their funding sources and political activities to U.S. authorities, and perhaps to include disclaimers in their programming about their affiliation with a foreign government.

But even if branding RT and its ilk as foreign agents would help resolve the American-channel-surfer problem—a big if—there’s the more fundamental question of whether the U.S. government should be trying to solve the problem in the first place, however much propaganda a particular outlet is pumping out. It’s a question of whether freedom from foreign influence trumps freedom of the press. As Ann Cooper, a Columbia Journalism School professor who has studied RT, once told The Atlantic, “You don’t want to get into a situation where you’re trying to set up categories and define different news agencies and basically say, ‘These ones are good, these ones are not.’” Let a thousand voices be heard, Cooper advised, and allow the American public to determine who they want to heed.

2) Run political ads online

In a recent investigation into “Russia’s social media war on America,” Time magazine reported that, according to anonymous intelligence officials, “Moscow’s agents bought ads on Facebook to target specific populations with propaganda” during the U.S. presidential campaign. Facebook claims to have found no evidence of this happening, though it has acknowledged that governments and non-state actors are now using fake news, disinformation campaigns, and networks of bogus accounts on the social network to “distort domestic or foreign political sentiment, most frequently to achieve a strategic and/or geopolitical outcome.” Nevertheless, Ellen Weintraub, the FEC commissioner, has called on the commission to investigate whether there’s any truth to the Time report.

Regardless of whether the Russian government bought political ads on Facebook, the allegation has exposed a soft spot in U.S. campaign-finance law, according to Rick Hasen, an election-law scholar at the University of California, Irvine. It’s illegal for foreign nationals and foreign governments to make contributions to political campaigns and parties, or to independently spend money on ads that explicitly advocate the election or defeat of a particular candidate. But things get more nebulous with election-related communications by a foreign entity—especially in the less regulated online space as opposed to TV and radio. If the ad says, “‘Hillary Clinton is a killer’ ... it’s not a contribution as long as it’s not being done in coordination with a campaign, and it’s not an independent expenditure because it’s never saying, ‘Vote against Clinton,’” Hasen told me.

3) Get creative with lobbyists

The U.S. government rarely punishes violations of the Foreign Agents Registration Act, which largely relies on voluntary compliance with the statute. And, as Freeman has written, the weaknesses of the law go beyond feeble enforcement. Lobbyists representing foreign companies rather than foreign governments, for example, are generally subject to less strict reporting requirements than those imposed by FARA. Normally that’s sensible, since private corporations typically don’t have the political agenda that governments have. But it becomes problematic in the case of, say, Trump’s former national-security adviser Michael Flynn, who wrote an op-ed on Election Day endorsing a priority of the Turkish government—the extradition of a U.S.-based Turkish cleric—while serving both as a Trump campaign aide and a paid lobbyist for a Dutch company owned by a Turkish businessman with links to the Turkish government. You follow all that? The government probably should.

Other loopholes include FARA not applying to U.S.-based foreign agents who hop on a plane and meet with American government or campaign officials overseas (“Foreign-influence laws stop at the water’s edge,” Freeman told me), and the practice of American lobbyists making campaign contributions to American politicians whom they’re simultaneously lobbying on behalf of foreign clients. “I might meet with you on behalf of my foreign client and I might also write you a $1,000 check that same day,” Freeman explained. “Now is that quid pro quo? Is that a dirty exchange? Maybe. [I] can’t say. All I can tell you is that those two things happened on the same day.” In poring over FARA filings, Freeman has documented several such “coincidences” in recent years. And, as Freeman emphasizes, there’s nothing wrong with this from a legal perspective: Lobbyists who are U.S. citizens are entitled to exercise their First Amendment right to free speech by contributing to a campaign. All it proves is that if governments want to get around U.S. laws against foreign influence on American politics, they can.

4) Funnel money through a nonprofit

There hasn’t been much hard evidence so far that the U.S. Supreme Court’s 2010 Citizens United decision, which rejected restrictions on certain categories of campaign spending by corporations and unions, has flooded American elections with foreign money and foreign political influences. Barack Obama and other critics of the ruling had warned that the potential exists for such abuse—either through U.S. subsidiaries of foreign companies or U.S. companies with a substantial percentage of foreign shareholders. (The decision has, however, flooded American elections with domestic money and special-interest influence.)

But foreign funds can also indirectly make their way into political campaigns through nonprofits known to the U.S. Internal Revenue Service as 501(c)(4)s. To be considered a 501(c)(4), a group’s primary purpose must be to promote “social welfare” rather than participate in politics. But these groups can still engage in political activities such as purchasing political ads, so long as these activities constitute less than half of the organization’s total activities. And critically, unlike political action committees or the post-Citizens United behemoths known as super PACs, 501(c)(4)s aren’t required to publicly reveal the identity of their donors, who can lawfully include foreigners.

In theory, politically involved nonprofits, some of which spent tens of millions of dollars on the 2016 election, must “keep any foreign money segregated and only spend funds from American donors on U.S. elections,” The Intercept has noted. But in reality “the public has no idea whether or how they do this, since they are not required to disclose it. And since money is fungible, any foreign donations they use for operating expenses leave more domestic contributions to spend on attack ads.”

As with Citizens United worries, concerns about foreign political influence wielded through nonprofits are currently based more on hypotheticals than specific cases. Yet that’s in part because these organizations can operate with such opacity. “At best we the public only see a small percentage of where all this money is coming from,” Freeman told me. “There’s a strong possibility that in a lot of this dark money or soft money, some of that is coming from foreign governments or foreign nationals.”

5) Take action—or refrain from taking it

Of course, there’s nothing stopping foreign officials from breaking with diplomatic protocol and exerting influence on a U.S. election in the most basic way: signaling their preferences. That’s essentially what Pope Francis, the spiritual leader to roughly 75 million Catholics in the United States, did during the 2016 presidential campaign when he said that building the kind of border wall that Trump had championed was “not Christian.”

Foreign officials can have an impact on elections not only through words, but through actions—or the lack thereof. This is partially what’s at issue in a popular argument among Trump’s supporters at the moment: that the Ukrainian government interfered in the U.S. election, but that nobody is talking about it because the president’s opponents are hysterical about Russia. They note that Ukrainian authorities announced an anti-corruption investigation involving Paul Manafort, Trump’s campaign manager, that contributed to Manafort’s resignation from that role just months before Election Day. Ukrainian officials then seemingly backed off the probe after the U.S. election, raising questions about whether the government had intended to undermine Trump and his pro-Russia policies.

It remains unclear whether the inquiry into Manafort’s work as a political consultant in Ukraine, and the decision by some Ukrainian officials to publicize it at the height of the American campaign, was apolitical or politically motivated (or something in between). But what’s undeniable is that the Ukrainian action had some ultimately unquantifiable consequences for the presidential race, as did Soviet Premier Nikita Khrushchev’s decision to not release a captured American pilot in hopes of undermining Richard Nixon’s candidacy in 1960, and countless other choices by foreign leaders looking to tilt U.S. elections over the years. Sometimes influence is exercised behind closed doors in Trump Tower. And sometimes it’s applied right out in the open.

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