In Important Step and In Rare Bipartisan Fashion, Federal Election Commission Unanimously Approves Measure to Provide Free or Reduced-Cost Cybersecurity Protection for American Campaigns [Subject to Disclosure of, and Limits on Sources of Funding for Effort (That Part’s Not Unanimous)]

This is very good news. You can find the advisory opinion here. It is unanimous, except the Republican commissioners would not have imposed the disclosure requirements or source limitations.

From Chair Weintraub’s letter:

Under the unusual and exigent circumstances presented by your request and in light of the demonstrated, currently enhanced threat of foreign cyberattacks against party and candidate committees, the Commission approves DDC’s proposed activity.

The Act and Commission regulations prohibit foreign nationals from making contributions, expenditures, donations, or disbursements in connection with federal, state, and local elections. See 52 U.S.C. § 30121(a)(1); 11 C.F.R. § 110.20. This prohibition is intended to “exclude foreign citizens from activities intimately related to the process of democratic self-government.” See Bluman v. FEC, 800 F. Supp. 2d 281, 287 (D.D.C. 2011) (internal quotations omitted), aff’d mem., 565 U.S. 1104 (2012). Such exclusion “is part of the sovereign’s obligation to preserve the basic conception of a political community.” Id. (emphasis added).

The Commission has approved certain advisory opinion requests to take particular, carefully defined, and limited actions to address urgent circumstances presenting a verified, heightened risk of physical or malicious digital harm. See Advisory Opinion 2018-15 (Wyden); Advisory Opinion 2017-07 (Sergeant at Arms). Here, we have such circumstances. The Commission concludes that the current threat of foreign cyberattacks presents unique challenges to Commission enforcement of section 30121, and that this highly unusual and serious threat militates in favor of granting DDC’s request.

The request notes that recent election cycles have seen actual and attempted foreign cyberattacks on party and candidate committees on an unprecedented scale.9 Foreign cyberattacks that entail disbursements by foreign nationals in connection with American elections are violations of section 30121. But foreign cyberattacks, in which the attackers may not have any spending or physical presence in the United States, may present unique challenges to both criminal prosecution and civil enforcement.10 Thus, the Commission recognizes that fulfilling its “obligation to preserve the basic conception of a political community” under section 30121 cannot hinge solely on prosecution of foreign violators abroad. Effective enforcement of that provision to protect American elections from urgent cyberthreats also requires that countermeasures be taken within the United States. DDC’s proposal is a unique response to such threats. DDC proposes to offer free or reduced-cost cybersecurity services, including facilitating the provision of free or reduced-cost cybersecurity software and hardware from technology corporations, to federal candidates and parties according to a pre-determined set of criteria. DDC is formed in a bi-partisan fashion, co-led by former campaign managers of Republican and Democratic presidential campaigns. AOR004. DDC proposes to make its services available on a nonpartisan basis and “not to benefit any one campaign or political party over another or to otherwise influence any federal election.” AOR002. DDC plans to offer its services not only to political committees, but also to “think tanks” and other public policy-focused NGOs. DDC Comment (April 5, 2019) at 3. DDC, a 501(c)(4) organization which its counsels represented will operate like a 501(c)(3),
would not be prevented from accepting donations from foreign nationals because of its tax status.

However, because this advisory opinion is premised on the threat of foreign cyberattacks against party and candidate committees and the implications those attacks have on Commission enforcement of section 30121, the Commission’s approval is conditioned on DDC’s commitment
not to accept any donations from foreign nationals, and its adherence to the representations described above.

Approval is conditioned on DDC’s public disclosure of all donations and, going forward, disclosure of new donations by the first day of the month following when they were received;11 and its commitment to accept donations only from individuals, foundations, and entities that have elected C corporation status for federal income-tax purposes.12

[Footnote 12: Vice Chairman Petersen and Commissioner Hunter approve this Advisory Opinion, but do not condition their approval on these disclosure requirements and funding restrictions.}


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