The FEC’s Moment of Truth

(Sipa via AP Images/Olivier Douliery/Abaca)

The Federal Election Commission in Washington, D.C.

The question of whether Donald Trump and his team violated campaign-finance laws remains front and center in the rapidly expanding Russia probe. But wherever federal and congressional investigations lead, the danger posed by foreign interference in U.S. elections goes beyond the Trump campaign.

It’s alarming enough that the president’s son, campaign manager, and son-in-law met last year with a Russian lawyer said to have damaging information to share about Hillary Clinton. Even more alarming, though, are the American election vulnerabilities that the Russia scandal has exposed. It’s already come to light in recent weeks that Russia targeted and sought to hack into voter databases in 21 states, a disclosure that has set election officials on edge. Less discussed but equally concerning are the campaign-finance loopholes that make it all too easy for foreign actors to spend big money in U.S. elections.

“In light of the information that is daily being augmented in the newspapers, there are some pretty alarming indications that foreigners were actively trying to influence the last election, and that they may try again,” says Federal Election Commissioner Ellen Weintraub, who has urged the FEC to take immediate steps to better secure American elections against foreign interference.

Weintraub and other Democrats on the commission have been warning for years that foreign interference poses a growing threat to U.S. elections and national security. The Supreme Court’s 2010 ruling in Citizens United v. FEC freed corporations to spend unlimited money in campaigns, yet by some estimates as much as 25 percent of all U.S. corporate stock is held or controlled by foreigners. The Citizens United ruling also opened new avenues for undisclosed political spending, which topped $180 million in the last election, extending an open invitation to illegal foreign donors.

Weintraub has proposed several rulemakings to erect barriers to foreign money and election intrusions, but has met with a wall of resistance from GOP commissioners. The six-member FEC is divided evenly between Republicans and Democrats, and partisan stalemates are the norm. After her most recent proposal—to bar unlimited political contributions by corporations owned or controlled entirely by foreign governments—died at GOP hands in January, Weintraub chastised her colleagues.

“Given the mounting evidence that foreign actors are taking increasingly innovative and aggressive action to influence our elections, we are at substantial risk that foreign nationals and foreign governments will similarly take advantage of loopholes in our campaign-finance laws to intercede invisibly in American elections,” she said in a statement at the time. “No member of the Federal Election Commission should be willing to tolerate this risk.”

Now Weintraub is back, with a six-part proposal that commissioners debated at their open meeting on Thursday. The plan’s key elements include open- and closed-door briefings with high-level federal officials on foreign interference in 2016, an FEC rulemaking to ensure that corporations do not become conduits for foreign money, and a discussion of possible legislative recommendations to Capitol Hill.

“It’s really important for us to grapple with these issues on a prospective basis,” said Weintraub at the meeting. In order to receive updates from other agencies, Weintraub noted that security clearances might be necessary.

Some of Weintraub’s GOP colleagues, including commissioner Lee Goodman, voiced generic support for aspects of Weintraub’s plan. “I agree with you that we ought to have lines of communication open, particularly with our sister agencies,” said Goodman. “So I take that as a very constructive proposal"

Commissioner Caroline Hunter, another Republican, voiced more skepticism. “I think we should mind our own house,” said Hunter, arguing that the FEC should wait until other investigators issued their public reports. And Goodman cautioned against acting too hastily on rules that might curtail the First Amendment rights of U.S. corporations. “There are many historical examples of overreaction to foreign threats in American politics,” he said.

The agency took no action on Thursday, but agreed to continue discussing the matter. Weintraub voiced some frustration what she called commissioners' position that the FEC should just continue on its current course. “I think that under the current circumstances, we need to up our game,” she argued.

Even before the disclosures of Donald Trump Jr.’s meeting with Natalia Veselnitskaya, a Russian lawyer with Kremlin ties, potential campaign-finance violations had emerged as a central theme in the Russia probe. Election laws are explicit that foreign contributions, including money or any “other thing of value,” are illegal in U.S. election campaigns. Candidates are also explicitly barred from soliciting foreign contributions, which put candidate Trump’s calls for Russia to find Clinton’s personal emails on shaky legal territory.

The meeting between Trump Jr. and Veselnitskaya, which also included the GOP nominee’s then-campaign manager, Paul Manafort, and Trump’s son-in-law, Jared Kushner, looks to some like a blatant campaign-finance violation. Emails released by the younger Trump, which he made public to preempt publication by The New York Times, show that British publicist Rob Goldstone, who arranged the meeting, promised access to information that would “incriminate” Clinton, calling it “part of Russia and its government’s support for Mr. Trump.” Instead of turning over the information to the FBI, as might have been expected, Donald Trump Jr.’s response was, in part: “I love it especially later in the summer.”

Common Cause has asked both the Justice Department and the FEC to investigate whether the Trump campaign violated election laws by soliciting an illegal foreign contribution. It’s one of several complaints that watchdog groups have filed with the FEC involving the Trump campaign, foreign solicitations and foreign interference.

FEC commissioners are forbidden to discuss enforcement matters, and partisan divisions may well paralyze the agency yet again. But even if the FEC fails to act, the investigation by special counsel Robert Mueller raises the tantalizing possibility that a blatant campaign-finance violation might actually be prosecuted for once—if not by the commission, then by Mueller himself.

Either way, it will remain up to the FEC to protect U.S. elections more robustly from foreign meddling down the road. As the full Russia story becomes disturbingly clear, a growing number of Republicans are joining Democrats to demand answers. “I don’t think this ought to be a partisan issue,” notes Weintraub. “Our entire country ought to be alarmed at the prospect of foreigners trying to influence our election. We should all be singing on the same page on this.”

This story has been updated.

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