“Putin’s Revenge: The Foreign Threat to American Campaign Finance Law”

Tony Gaughan has posted this draft on SSRN (Howard Law Journal). Here is the abstract:

When Congress established federal contribution limits in 1974, it also instituted a complete ban on foreign campaign contributions. In adopting the post-Watergate reforms, Congress acted on the presumption that it could create a closed campaign finance system limited exclusively to Americans.

It was a reasonable conclusion to draw at the time. After all, the means of global communication in the mid-1970s were quite limited. There was no internet, no email, no cellphones, and no 24/7 news channels. Mail from Europe or Asia took a week to arrive and newspapers and magazines took even longer. Accordingly, as long as Congress prohibited Americans from accepting direct financial contributions from foreign sources, it could effectively limit campaign activity to Americans in the 1970s.

But as the 2016 election demonstrated, the days of a closed system of campaign finance — one in which campaign-related speech and expenditures come exclusively from American sources — are long over. The internet empowered the Russian government to intervene in the American presidential election on an unprecedented scale. Russian President Vladimir Putin directed his intelligence services to use computer hacking and social media to promote Donald Trump and undermine Hillary Clinton. The success of the Russian influence campaign demonstrated in stunning fashion the extent to which foreign governments can use the internet to shape public opinion in the United States.

The thesis of this article is that modern technology has created a global electronic village that empowers foreign actors to intervene in American elections like never before. In the internet age, the most significant form of foreign influence comes not in the shape of a direct cash payment to candidate campaigns, but rather in the form of less tangible but far more potent “in kind” contributions and expenditures. Computer hacking, political propaganda, staged photo opportunities, and the instantaneous global dissemination of opposition research and fake news offer foreign governments a way to advance their national interests by shaping public opinion in the United States during election campaigns. The upshot is our 1970s-era campaign finance laws have become woefully antiquated in the internet age.

The growing threat of foreign interference is compounded by the fact that legislative solutions are much more elusive than is commonly understood. Laws that purport to ban foreign influence on our elections will not stop governments from posting on the internet information that advances their strategic interests. The federal “ban” on foreign campaign activity thus promises more than Congress can actually deliver.

Accordingly, this article proposes a modest but significant reform to current law by focusing on one area where legislation can be effective: the regulation of communications between American candidates and foreign governments. Congress should require candidates to inform the Federal Election Commission of all foreign government contacts that their campaigns have within 48 hours of the communications. Such reports should be made immediately available to the public and posted on the FEC website. In addition, Congress should empower the FEC to alert the public to foreign efforts to influence American elections. Although we cannot prevent foreign governments from seeking to influence our election campaigns, we can ensure that the public is made aware of those efforts. In the internet age, a fully informed public is the best defense against foreign meddling.

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