Bills
| 3.23.22

Should Loopholes Allowing Foreign Interference & Deceptive Practices in U.S. Elections be Closed? (H.R. 4617)

Do you support or oppose this bill?

What is H.R. 4617?

(Updated August 3, 2020)

This bill — the SHIELD Act of 2019 — would combat foreign interference in U.S. elections by closing loopholes that allow foreign spending in U.S. elections, boosting disclosure and transparency requirements, and creating a duty to report illicit offers of campaign assistance from foreign nations. 


Duty to Report

This bill would require political campaigns, parties, and political committees (such as PACs and Super PACs) to report attempts by foreign governments, foreign political parties, and their agents to influence our elections. These reports would be made to authorities at the Federal Election Commission (FEC) and Federal Bureau of Investigation (FBI). Additionally, this bill requires campaigns to establish compliance mechanisms to ensure that illicit offers of assistance are caught and reported.

Anyone who violates these provisions would be subject to fines of up to $500,00 and/or imprisonment for up to five years. Additionally, anyone who knowingly and willfully conceals or destroys materials relating to a reportable foreign contact would be subject to fines of up to $1 million and/or imprisonment for up to five years.

Online Political Ad Transparency

This bill would make political ads sold online (such as on Facebook, Twitter, and Google) covered by the same rules as ads sold on TV, radio, and satellite by adding “paid internet or paid digital communications” to the definition of electioneering communication. Such communications would be required to clearly and conspicuously include disclaimers detailing who paid for the communication and provide a means for the recipient of the communication to obtain the remainder of the information with minimal effort. This requirement would apply to paid political ads online made on or after January 1, 2020.

It would also require online platforms to maintain complete records of any requests to purchase qualified political advertisements made by a persons whose aggregate requests on the online platform exceed $500 in a calendar year. These records would also have to be publicly available in a machine-readable format. 

Finally, it would require broadcasters, providers of cable or satellite television, and online platforms to make reasonable efforts to ensure that political advertising is not purchased by foreign nationals, whether directly or indirectly. 


Closing Foreign Money Loopholes

This bill would strengthen the FEC’s foreign money ban on foriegn nationals making contributions and expenditures in connection with elections by codifying language from an FEC regulation rendering it unlawful for a foreign national to direct, dictate, control, or directly or indirectly participate in the decision making process of any person (including a corporation, labor organization, political committee, or political organization) with regard to such person’s election activity. This includes decision-making about making contributions, donations, expenditures, or disbursements in connection with elections.

This bill would also prohibit foreign nationals from participating in decision-making about contributions or expenditures by corporations, PACs, Super PACs, and other entities. It would also require PACs and super PACs to make annual certifications of compliance before they can make campaign contributions or expenditures. Additionally, this bill would extend an existing prohibition on soliciting contributions or donations from foreign nationals in connection with federal, state, or local elections to also apply to state or local ballot initiatives or referenda. Finally, it would extend an existing FEC prohibition on foreign nationals making expenditures or disbursements for electioneering communications to include digital and broadcast communications promoting, referring to, or opposing specific candidates or espousing a view on an issue of national legislative importance. 

The FEC would be required to conduct random audits to determine the incidence of illicit foreign money in each Federal election cycle. No later than 180 days before the end of a federal election cycle, the FEC would then submit a report to Congress detailing the audit’s results and making recommendations to address the presence of any illicit foreign money.


Prohibiting Communication Between Candidates & Foreign Governments

This bill would deem the offering of non-public campaign material to foreign governments and those linked with foreign governments and their agents as an illegal solicitation of support, even in the absence of an agreement or formal collaboration. This would include polling and focus group data and opposition research. 


Prohibiting Deceptive Voting Practices

This bill would prohibit anyone from providing false information about voting rules and qualifications for voting, provide mechanisms for disseminating correct information, and establish strong penalties for voter intimidation. 

Specifically, would make illegal to impede, hinder, discourage, or prevent another person from voting by knowingly providing false information about the time or place of voting or the qualifications for voting. It would also prohibit: 

  • Knowingly disseminating false written, electronic, telephonic, or other statements regarding Federal elections within 60 days of an election.
  • Intentionally interfering with or hindering others’ voting, registering to vote, or helping another person register to vote or vote in a federal election. 

To enforce these provisions, this bill would create criminal penalties for violations, including up to five years in prison for deceptive practices and a monetary penalty of up to $100,000. Additionally, it would create a private right of action for preventive relief by injunction, restraining order or other order.

The Attorney General would be required to issue a correction upon receipt of a credible report of materially false information regarding elections and a determination that state and local election officials failed to clarify and correct the information. To the extent practicable, this information would have to be disseminated by means that would reach the persons to whom the materially false information was communication. The correction could not be designed to favor or disfavor any particular candidate, organization, or political party. 

Within 180 days of this bill’s enactment, the Attorney General, in consultation with the Election Assistance Commission, State and local election officials, civil rights organizations, voter rights and protection groups, and other interested community organizations would publish written procedures and standards for determining corrective action. 

Argument in favor

Foreign interference is a growing and insidious problem in American elections, and should be stopped. Similarly, deceptive practices that hinder voters’ registration and votes are fundamentally undemocratic and should be stopped.

Argument opposed

This bill’s provisions could have a chilling effect on free speech, and could also hurt journalism. Democrats — who crafted this legislation without Republicans’ input — clearly intended it to be a partisan tool for pursuing their impeachment campaign against President Donald Trump.

Impact

Voters; political campaigns; PACs and super PACS; political advertisements; political campaigns’ acceptance and solicitation of foreign assistance and funds for elections; deceptive practices in elections; FEC; Attorney General; foreign governments; and foreign nationals.

Cost of H.R. 4617

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Zoe Lofgren (D-CA) introduced this bill to combat foreign interference in American elections: 

“Most Americans know that foreign governments have no business interfering in our elections. Instead, the Trump campaign and White House have welcomed and repeatedly solicited foreign assistance for his political activities. This behavior is unacceptable, and it is telling that the White House has gone to great lengths to hide it from the American people. The SHIELD Act will protect our elections from foreign interference by closing loopholes that allow dishonest behavior, increasing disclosure and transparency requirements, and ensuring that individuals engaging in conduct with foreign actors intending to influence the outcome of our elections will be held accountable by law.”

People for the American Way (PFAW) supports this bill. Marge Baker, PFAW Executive Vice President for Policy and Program, says: 

“The timing for this legislation couldn’t be more relevant, as evidence mounts regarding the scheme undertaken by President Trump, Rudy Giuliani and others to engage Ukraine’s help in the president’s re-election campaign. The House should move promptly to pass the SHIELD Act and continue to work diligently to protect the integrity of our elections.”

Original cosponsor Rep. John Sarbanes (D-MD),  Chair of the Democracy Reform Task Force, adds: 

“Foreign adversaries attacked our elections in 2016 and they’re coming for us again in 2020. House Democrats have moved quickly to protect our democracy from foreign interference. As our first order of business, we passed H.R. 1, the For the People Act, which would modernize election infrastructure across the country, help block illicit foreign political activity online and crack down on secret foreign money and lobbying in our politics. We also swiftly passed the SAFE Act (H.R. 2722), a bill to help states upgrade and secure their voting systems. Today, we’re introducing The SHIELD Act, a bill to root out foreign influence, disinformation and interference in our elections. Senate Republicans and Majority Leader Mitch McConnell must take up these critical national security bills as soon as possible. There’s no time to waste.”

Rep. Rodney Davis (R-IL) has spoken out against some aspects of this bill. In particular, he argues that language saying nothing in this bill should be construed to “impede legitimate journalistic activities” could easily become a hornet’s nest due to debate over the word “legitimate.” Observing that “[e]ach side of the media thinks it is reporting legitimate news,” Davis has suggested the verbiage “legitimate” either be broadened by abolished altogether. 

Rep. Lofgren disagrees with Rep. Davis’s opinion. Quoting from a 2016 FEC advisory opinion that had unanimous approval from all Republican members of the board, she says: 

“The language should remain because it is modeled after the FEC’s own requirements when applying press exemptions ‘that consider whether an outlet or journalist is acting in their legitimate function.’ Let’s say you have oligarch number one that comes to your campaign. You have a duty to report. But if it’s a legitimate reporter as defined by the legitimate press functions and the whole existing body of law, the requirement to report to the FEC or FBI would not exist. It’s a press inquiry, not foreign interference.”

At this bill’s committee markup, Rep. Davis called it “unfixable in its current form.” He also proposed 10 amendments — including one that would have eliminated the online political advertisement rules — that were mostly voted down by the Democratic majority. Rep. Davis raised concerns that this bill would have “severe consequences on the American people and a chilling effect on free speech,” particularly through the regulation of online political advertisements. He also criticized the “partisanship” involved in putting this legislation together, noted the existence of “legitimate election security concerns” that the bill is meant to address, and denounced Rep. Lofgren’s and committee Democrats’ failure to find a “bipartisan solution to our collective concerns.” He said:

“Once again, the majority has chosen to continue this pattern we’ve seen all Congress where they rush legislation, without any hearings or public discussion of the issues, and insert poison pills into a bill that they know we will not support, all in an effort to prop up their unfounded impeachment efforts against the president.”

Two days after the committee passed this bill, Rep. Davis was joined by a number of Republican lawmakers in introducing their own legislation to reduce foreign interference in U.S. elections, the Honest Elections Act. Rep. Davis said: 

“We may never be able to prevent criminal activity, whether that’s in our elections or in our day-to-day lives, but we can provide our law enforcement with the best tools and resources available. It's imperative that our elections systems are free from foreign influence, and I hope my colleagues on both sides of the aisle will support this legislation and put the needs of the American people first." 

The Trump administration expressed its opposition to this bill in an October 23, 2019 statement of administration policy. While it agreed with the goal of increasing accountability and transparency in elections, the Administration argued that this bill is "redundant, overly broad, ambiguous, and unenforceable." It added: 

"The Federal Election Campaign Act (FECA) and current regulations already address the policy objectives of [this bill], and the bill’s expansive language would make impartial and predictable implementation of the law impossible. [This bill's] ambiguous language would ensnare American citizens and entities acting in good faith in its web of requirements and prohibitions... In fact, the bill’s expansive definitions seem designed to instill a persistent fear among Americans engaged in political activity that any interactions they may have with a foreign national could put them in legal jeopardy and jeopardize the political viability of the candidates or issues they support... While the Trump Administration seeks to limit foreign national interference in our elections by strengthening FECA and combatting illegal behavior, the SHIELD Act would produce harmful unintended consequences without achieving that goal."

This legislation passed the Committee on House Administration by a 6-1 vote with the support of 101 Democratic House cosponsors. It then passed the House by a 227-181 vote on October 23, 2019 without any Republicans.


Of Note: Investigations and whistleblower accounts have detailed extensive communications between the Trump White House, Trump campaign, and foreign governments. Investigators have found over 100 contacts from Russia and Wikileaks between President Trump and at least 17 of his campaign officials and advisors. Recently, the President and his administration have solicited foreign interference in the 2020 American elections from multiple foreign governments, including China, Ukraine (which he’s facing impeachment proceedings over), and Australia.

In June 2017, Sen. James Risch (R-ID), chairman of the Senate Committee on Foreign Relations, interrogated then-Attorney General Jeff Sessions about collusion with foreign governments to influence an American election. Sen. Risch said, “Collusion with the Russians - or any other government, for that matter, when it comes to our elections – certainly would be improper and illegal. Would that be a fair statement?” to which then-AG Sessions answered, “Absolutely.”

FEC chair Ellen Weintraub notes that the law is already clear on the illegality of accepting foreign nationals’ help in U.S. elections. In an interview on “Morning Joe,” she said, “[T]he law is pretty clear. ... It is absolutely illegal for anyone to solicit, accept, or receive anything of value from a foreign national in connection with any election in the United States.”

Edward B. Foley, director of the Election Law Program at the Ohio State University’s Moritz College of Law, argues that “[h]istory shows that a president sometimes might be justified in asking a foreign country to investigate a political rival, including a former vice president.” For example, in 1804, Aaron Burr contacted the British government, apparently to peddle a plan for severing part of the U.S. to form a new country in western territory. In response, President Thomas Jefferson had Burr prosecuted for treason (he was found not guilty). 

In this case, Foley contends, Jefferson would have been justified in asking Britain to help gather more information about Burr’s involvement in this plot, even though Jefferson was seeking reelection at the time and Burr might have coveted the presidency in spite of his plot. Given the circumstances, Foley concludes, “Whatever the circumstances of the electoral rivalries at that moment—and campaigns back then were, of course, very different from today—Jefferson as president would have been acting responsibly if he had requested Britain’s assistance in the investigation of Burr.”

The House has already passed two pieces of legislation to protect U.S. elections in the current Congressional session. They are the For the People Act (H.R.1), which passed the House by a 234-193 party-line vote in March 2019; and the Securing America’s Federal Elections (SAFE) Act (H.R.2722, also sponsored by Rep. Lofgren), which passed by a 225-184 vote in June 2019. 

Both bills were rejected by Senate Majority Leader Mitch McConnell (R-KY) due to Republican concerns over elections being federalized and concerns that their language didn’t address election security. They remain in limbo as of mid-October 2019. 

Commenting on those bills’ fates, Rep. Lofgren says, “The committee and House have acted twice to shore up confidence in elections…we should all be able to agree we need to protect our democracy and with a sense of urgency. This shouldn’t been a partisan opinion.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / stuartmiles99)