D21 Urges House Members To Vote For SHIELD Act To Strengthen U.S. Election Security
Democracy 21 sent a letter to all House Members today urging their support for the SHIELD Act, H.R. 4617, introduced by House Administration Chair Zoe Lofgren (D-CA) and Rep. John Sarbanes (D-MD) to “protect the integrity of our democracy and our elections.”
The letter noted that there are “major loopholes” in current statutory restrictions on foreign national spending in elections, and that the SHIELD Act closes those loopholes and “protects U.S. elections in multiple ways against a recurrence of foreign interference.”
According to the letter:
The report from Special Counsel Mueller established beyond any reasonable doubt that Russia invaded the 2016 presidential election to disrupt our democracy, harm presidential candidate Hillary Clinton and help presidential candidate Donald Trump. This finding was reaffirmed by the report issued early this month by the Republican and Democratic Senators of the Senate Intelligence Committee.
It is incumbent on Congress to take all necessary steps to ensure that cyberattacks by foreign countries on our elections – like the Russian attack in 2016 – do not occur in future elections. So far, these efforts are being blocked by Senate Majority Leader Mitch McConnell, who is singlehandedly preventing the Senate from even considering almost all legislative efforts to protect the integrity and security of our elections.
The letter continued:
The rationale for banning foreign involvement in our elections is straightforward: foreign interests should play no role in influencing our elections or compromising the officeholders who would benefit from any such involvement. Period. American voters, not foreign interests, should choose our elected leaders.
Past decisions establish that restrictions on foreign nationals giving or spending money to influence U.S. elections are constitutional. These decisions have upheld the existing restrictions and support the constitutionality of the additional restrictions contained in the SHIELD Act.
The key case upholding the constitutionality of the ban on foreign money in U.S. elections is Bluman v. Federal Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011) (three-judge court) aff’d 565 U.S. 1104 (2012).
In an opinion written by then-Judge (now Justice) Kavanaugh, a three-judge court recognized that different and broader constitutional interests are served in restricting campaign finance activities by foreign nationals in our elections than in restricting the raising or spending of money by U.S. citizens. Judge Kavanaugh’s opinion stated:
It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of democratic self-government and in thereby preventing foreign influence over the U.S. political process.
Id. at 288 (emphasis added). It is notable that the Supreme Court summarily affirmed the unanimous three-judge court opinion on the merits.
The letter also challenged claims made by the ACLU against the Act:
A letter to the House Administration Committee dated October 16, 2019 from the ACLU, raising various objections to the SHIELD Act, entirely misses this critical distinction – indeed, the ACLU letter does not even cite the Bluman decision, much less evaluate the provisions of the bill in light of the “compelling interest” the nation has in restricting the election-related spending of foreign nationals, and especially of foreign governments and their agents, in order to protect “the activities of democratic self-government.”
By analyzing the constitutionality of the legislation only through the traditional anti-corruption framework of Buckley that protects political speech by U.S. citizens, the ACLU ignores the very different set of principles that apply to measures restricting the purported speech interests of foreign nationals and foreign governments, and that are intended to protect the integrity of U.S. elections.
The letter continued:
The record before Congress clearly demonstrates the dangers of foreign intervention in U.S. elections. The report by Special Counsel Robert Mueller provides extensive evidence of the successful efforts by agents of Russia, a hostile foreign power, to influence the 2016 presidential elections through a variety of means.
These means include the use of Internet platforms to launch social media campaigns to inflame and divide the American electorate for purposes of influencing the election, the hacking of party and candidate email accounts to steal internal emails and documents in an effort to embarrass and discredit certain candidates, and attempts at direct interference with state and local systems that are used to administer elections.
The record also shows major gaps in the coverage of the existing statutory ban on foreign national activities in our elections, and the need for Congress to strengthen the existing laws in order to protect the country against recurrence of the efforts made by Russia to influence the 2016 election.
The SHIELD Act addresses a number of the gaps revealed by the Mueller investigation.
The letter concluded:
It is important to stress that foreign governments – and foreign nationals generally – do not have First Amendment rights that are related “to the process of democratic self-government.” Bluman, 800 F. Supp. 2d at 287. Thus, the proposed statutory restrictions described above do not interfere with constitutionally protected speech rights. These prophylactic protections are necessary, as the congressional record shows, to respond to an actual attack on our democracy and on the integrity of our elections that took place in the last presidential election and that may well be repeated in the 2020 elections.
The congressional power to guard against such foreign interference is, as Bluman concluded, based on the congressional duty to protect “democratic self-government.” Bluman, 800 F. Supp. 2d at 287. As the court said, “[T]he government may bar foreign citizens . . . from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections.” Id. at 288. Legislative efforts to effectively bar foreign participation in U.S. elections are well within the scope of congressional authority.
Democracy 21 strongly urges you to vote for the SHIELD Act and to oppose any weakening or undermining amendments.
Read the full letter here.
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