Foreign National Influence, Foreign National Interference

December 15, 2016
posted by Bob Bauer

In 1968, the Nixon presidential campaign successfully persuaded the South Vietnamese government to scuttle peace talks with the North. The goal was to end any possibility of an election-eve accord that would boost the prospects of the Democratic presidential nominee, Hubert Humphrey. Candidate Nixon and his agents assured the South Vietnamese, who took the deal, that a Nixon presidency would better protect their interests. This was a glaring case of foreign interference with elections. The election turned out to be close and the intervention was very plausibly a factor in the outcome. See, e.g., Tim Weiner, One Man Against the World: The Tragedy of Richard Nixon 19-26 (2015).

This is the kind of “interference” in an election that Congress is preparing to investigate. It remains to be seen whether the inquiry will eventually become more far-ranging– whether it will also examine other forms of foreign influence over the electoral and policy processes that are less brazen but still consequential.

For example, the Federal Election Commission recently could not agree on strengthened restrictions on campaign spending that serves foreign interests. Foreign nationals are prohibited generally from making contributions or expenditures in federal elections, but the rules are porous. Companies controlled by foreign nationals, including those directly or indirectly controlled by foreign governments, may establish PACs and fund campaigns with money contributed by their American executives. The law prohibits foreign nationals associated with the ownership or management of the company from directing or indirectly participating in these funding decisions. The enforcement challenge is obvious: how to capture this “participation,” which may include oral directives or suggestions that are not easily discovered. Beyond this, Americans in the employ of the wholly controlled USA subsidiary might guide their funding decisions by close reference to what they believe or know to be their foreign owners’ interests and preferences.

Foreign-owned corporations may also spend directly, through independent expenditures, to influence elections, on the authority of Citizens United. Here the rules are constructed along the same lines: a U.S. subsidiary can do what any other U.S. company can do, so long as foreign nationals do not participate in this activity and the money spent is generated from US-source business income.

Democrats on the Commission could not persuade their Republican colleagues that a tightening of the rules was required. So the law stands where it was before the debate, presenting the question of whether, in light of intense contemporary concerns, these controls are adequate.

Then there is the Foreign Agents Registration Act. This law requires disclosure of lobbying and other activities to sway public opinion and influence public policy. It applies to foreign government representations as well as to other foreign nationals.   It does not cover activities that are private and commercial, only those that are “public” and “political.” There are few rules and precedents clarifying the distinction. Yet it is a statute that recognizes that foreign governments that shy away from attempting to influence public policy by influencing elections, may just go straight to influencing policy.

There is “influence” and “interference,” and an influence that is tantamount to interference. The 1968 Vietnam peace talks episode and the emerging evidence of Russian hacking in the 2016 election cycle may be the easiest to categorize: the bid for influence that is considered interference, with no disagreement in principle that the United States government must act to investigate and prevent it. Defining the other forms of unwanted foreign influence over politics and policy, and then updating an aging, weakly constructed legal framework, will require, and may or may not receive, sustained attention.

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