While Special Counsel Robert Mueller’s recently-released report on 2016 election interference and coordination did not establish coordination between the Trump campaign and Russia, it highlights significant flaws in our campaign finance laws and reveals how the Trump campaign was willing to accept help from a foreign adversary, a decision that threatens basic values of American sovereignty over elections. According to opinion pieces published in response to the Mueller report from CLC’s Trevor Potter and Brendan Fischer, what we learned is that foreign interference is an urgent national security threat, and it will happen again in 2020 if we don’t safeguard our elections.
In an opinion piece for The Hill, Trevor Potter emphasizes the damning details of coordination in the report and the possibility of future foreign interference. In Sludge, Brendan Fischer analyzes the digital loopholes that Russia successfully exploited in 2016 and warns that these loopholes must be closed to protect the integrity of our democracy.
What Does the Report Say?
The Mueller report delivered a clear message: a foreign adversary tried to undermine U.S. sovereignty by interfering in the 2016 election and will do it again if given the chance. Foreign interference must be treated as a priority because it is an urgent national security threat. The report also provided information on coordination between the Trump campaign and Russia.
Given that “collusion” is not a legal term, Mueller writes that he investigated whether a “conspiracy” to violate campaign finance laws occurred. For actions to be considered a conspiracy, a prosecutor must establish “beyond a reasonable doubt” that they were done “knowingly and willfully,” an appropriate but high prosecutorial standard.
It is wrong to say that Mueller found “no collusion,” as the report includes accounts of dozens of contacts between the Trump campaign and Russians. The report outlines a series of secret meetings between Russian government agents and Trump campaign officials, including two members of Trump’s family. According to Mueller, these meetings violate campaign finance law. But they were unable or unwilling to prosecute.
Donald Trump, Jr. and Jared Kushner made multiple contacts with Russians. Trump, Jr.’s conduct was found to implicate the ban on soliciting campaign contributions from individuals he knew to be foreign nationals. Then-Campaign Chairman Paul Manafort shared with foreign nationals important polling data and campaign plans for states vital to Trump’s eventual victory. Examples abound of actions which, while concerning, may not meet the standard required to prosecute for conspiracy.
Trump, Jr. was not charged primarily because Mueller could not establish that the violation was done willfully; Mueller could not prove that Trump, Jr. knew soliciting “dirt” from the Russian government was illegal.
The report also describes in detail the wide range of electioneering and interference efforts from the Russian government. Congress must update campaign finance laws to keep up with contemporary campaign practices, especially when our campaign finance laws have been so clearly exploited by foreign agents.
How Are US Elections Still Vulnerable to Foreign Interference?
Campaign finance law has a glaring digital disclosure gap. Under current law, groups only have to report spending on digital ads if they expressly advocate for or against a candidate. In comparison, TV ads are subject to disclosure requirements if they run near an election, name a candidate, and are targeted to that candidate’s voters, even if they don’t expressly tell viewers to vote for or against a candidate.
According to the Mueller report, Russia exploited this loophole in its effort to “provoke and amplify political and social discord in the United States,” spending over $100,000 on Facebook ads alone, many of which even “explicitly supported or opposed a presidential candidate.”
As political campaigns and political spending increasingly take place online, this problem only promises to get worse.
How Can We Address These Issues?
Subjecting digital ads to the same disclosure requirements of TV and radio ads might have helped us detect Russia’s online interference campaign sooner or deterred the effort entirely. By passing bipartisan legislation like the Political Accountability and Transparency Act (H.R. 679), we could bring these ads into the light. Also, the For the People Act (H.R. 1), which passed the U.S. House, would help strengthen transparency in advertising.
The Federal Election Commission (FEC) should also clarify that digital ads are required to include “paid for by” disclaimers identifying the purchaser of the ad.
Congress and the FEC must act now to protect our elections from foreign interference and exploitation. As the Mueller report makes clear, our election system remains vulnerable, and all Americans, irrespective of party affiliation, should call on our elected officials to protect our democracy and national sovereignty.