Federal Election Commission Can’t Decide If Russian Interference Violated Law

As tech companies and government agencies prepare to defend against possible Russian interference in the midterm elections, the Federal Election Commission has a different response: too soon.

The four commissioners on Thursday deadlocked, again, on proposals to consider new rules, for example, for foreign-influenced U.S. corporations and for politically active entities that don't disclose their donors.

"We have reason to think there are foreign actors who are looking for every single avenue to try and influence our elections," said Commissioner Ellen Weintraub, a Democrat who offered two proposals for new regulations.

Both proposals failed on partisan 2-2 votes.

The FEC is debating the question in the shadow of several investigations of Russian election interference, which included an alleged $1.2 million-per-month campaign to place anonymous, socially divisive ads on prominent Internet platforms. Facebook is imposing new policies to eliminate anonymous advertisers. The FEC is developing rules for disclaimer labels on campaign and issue ads that appear online.

Weintraub invoked an investigation by the Senate intelligence committee to argue her own agency should do more. Committee chair Richard Burr, R-N.C., said last week, "There is no doubt that Russia undertook an unprecedented effort" in the elections. Ranking Democrat Mark Warner, R-Va., said "we have to do a better job" of protecting U.S. elections from foreign interference.

Republican Commissioner Matthew Petersen agreed the Russian interference is "an issue we all take very seriously." But he noted that the Facebook ads dealt mainly with social issues, not the elections, and thus lay outside the FEC's regulatory reach.

Petersen, like other Republican commissioners in recent history, views the FEC as an agency with extremely limited legal scope and power. He said he looked forward to the findings of the Senate intelligence committee and other investigators, "to see to what extent the efforts to interfere involve matters within our jurisdiction."

He said he believes that extent is small, but if the findings change his understanding, "I think that I would have to reconsider what my past positions have been."

Foreign influence in campaigns — which is flatly illegal — is just the latest flashpoint for FEC commissioners. Weintraub has tried to launch such regulatory efforts a half-dozen times since 2011, a year after the Supreme Court's Citizens United ruling allowed corporate money into electoral politics. Her first efforts targeted foreign owners or other influence in domestic corporations. Since 2016 she has added proposals to detect the money trails of foreign interference.

It turns out the post-Citizens United landscape could be a friendly one for foreign influencers. While there's little evidence that U.S. corporations are shoveling money into advertising for or against candidates — especially when that spending will be disclosed — there's also increasing activity by nonprofit groups, which normally don't disclose their donors. Republicans on the commission now set a high bar for the "reason to believe" needed to open any investigation.

"The FEC is the agency that is charged with protecting U.S. elections, but it's doing fairly little to protect our democracy," said Brendan Fischer, director of federal reform at the nonpartisan Campaign Legal Center.

But conservative campaign finance lawyer Charles Spies told NPR Weintraub's approach "doesn't solve the problem. It's simply grandstanding."

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