SHIELD Act - HR 4617

The bill is meant to stymie foreign interference in U.S. elections. The measure would make it a crime for candidates or their campaigns to give a foreign national nonpublic information related to an American election

BACKGROUND: The House Administration Committee reported the bill by a 6-1 vote (no written report was available as of press time). The Judiciary Committee did not act on the measure.

    Traditionally, concerns about election security have focused largely on election administration. During the 2016 presidential campaign, however, the FBI opened a counterintelligence investigation into efforts by the Russian government to interfere in the U.S. presidential election, an investigation that grew to examine possible links between individuals associated with the campaign of Donald J. Trump and the Russian government or any coordination between the Trump campaign and Russia's efforts.

    In May 2017 former FBI director Robert S. Mueller III was appointed by the deputy attorney general to serve as a Justice Department special counsel to continue the investigation after President Donald Trump fired FBI Director James Comey. Over the course of the special counsel's investigation, Mueller's team secured indictments or guilty pleas from 34 people, including 25 Russian nationals, three Russian companies, and six former Trump advisers.

    Mueller's investigation concluded that the Russian government had interfered in the 2016 presidential election in a sweeping and systematic fashion, with the intent of helping the Trump campaign. Among the actions taken by Russia was the hacking of Democratic National Committee emails and the release of those emails through Wikileaks and other means, as well as the creation of thousands of fake accounts on social media (particularly Facebook) and the posting of fake news, political ads and other materials intended to increase political and social discord in the United States.

    The investigation also identified numerous links between the Russian government and the campaign, although Mueller wrote that based on available information "the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities."

Recent Actions

    According to U.S. intelligence and the FBI, Russia also attempted to interfere with the 2018 midterm elections in the United States (but were largely thwarted by proactive U.S. election security cyber defenses), and it aims to become involved in the 2020 presidential elections — with FBI Director Christopher Wray in July saying that, "We are very much viewing 2018 as just kind of a dress rehearsal for the big show in 2020." And based off Russia's success in 2016, other nations such as Iran are becoming more active in seeking to influence U.S. elections, with some observers believing China could also become involved.

    Primary areas of concern within the United States are keeping foreign money out of U.S. politics and reducing the amount of disinformation being spread on social media. Social media platforms such as Facebook and Twitter have taken down thousands of fake accounts used to spread disinformation, but new accounts quickly replace them. Facebook is also requiring more information on persons who purchase ads and has also entered into partnerships with groups to fact-check news, photos and videos that are posted on the platform — but those efforts are expected to have a limited effect on the spread of disinformation.

Member Concerns

    Supporters of the bill, primarily Democrats, say that while most Americans know foreign governments have no business in U.S. elections, investigations and whistleblower accounts have detailed extensive communications between the Trump campaign and foreign governments. They note that the president himself has solicited foreign interference in the 2020 election by publicly calling on China and Ukraine to investigate his political rivals, and by saying in a television interview he would accept foreign assistance before the next election. Consequently, they say legislation is needed to protect our elections from foreign interference, including by closing loopholes that allow such interference, increasing disclosure and transparency requirements, and ensuring that campaigns contacted by foreign interests are held to account.

    Opponents of the bill, primarily Republicans, say that foreign interference in U.S. elections is already illegal and that further legislation is not necessary. They argue that the bill pushes aside sincere efforts at finding bipartisan solutions to those problems that do exist in favor of partisan policies. It unwisely expands the powers of the attorney general in having him decide what is and what is not factual with regard to information provided to voters, they say, arguing that the measure's reporting requirements would have a "chilling effect on free speech." The bill, they say, simply represents another attempt by Democrats to revive the Mueller report and relitigate the 2016 presidential election, rather than providing the resources needed to counter foreign influence campaigns or protect election infrastructure ahead of the 2020 election.

SUMMARY: This bill includes numerous provisions intended to prevent or deter foreign interference in U.S. elections, including by requiring candidates and campaigns to report to federal authorities any contacts with foreign nationals who offer donations or assistance, prohibiting campaigns from providing nonpublic campaign materials to foreign nationals, expanding the ban on donations from foreign entities, and by extending to online advertisements the prohibition on spending by foreign nationals for election ads.

    It also expands the disclosures and disclaimers that must accompany political advertisements and extends those requirements to online ads; it makes it a crime to intentionally hinder, interfere with, or prevent another person from voting or registering to vote; and it makes it a crime to disseminate false information to voters within 60 days of an election if it is intended to impede or prevent others from voting.

Report Foreign Contacts

    The bill requires all candidates for federal office and their employees or agents to report any contact with foreign officials who offer assistance to the candidate or campaign.

    Under the measure, candidates and campaign officials must within three days of any such contacts notify their own political campaign committee — which must subsequently report that information to the FBI and the Federal Election Commission within 7 days of the contact. Details to be reported include a summary of the circumstances of the contact, the date, time and place of the contact, the identify of those involved, and the assistance offered.

    Specifically, a contact with a foreign national (or someone believed to be a foreign national) must be reported if it involves an offer or other proposal for a contribution, donation, expenditure, disbursement or solicitation, or if it includes coordination or collaboration with information or services. The measure specifies that there does not need to be an agreement or formal collaboration in order to find "coordination" between a candidate and outside interests.

    Contacts with foreign nationals by an elected official or campaign employees would be exempt from these reporting requirements if done "solely in an official capacity" as a government official or employee.

    Those found guilty of violating these reporting requirements would be subject to a fine of up to $500,000 or up to five years in prison, or both. Knowingly and willfully concealing or destroying materials relating to the offense would be subject to fines of up to $1 million and up to 10 years in prison, or both.

    The bill states that it may not be construed to impede "legitimate journalistic activities" or to impose any additional limits on the right to express political views or participate in public discourse.

Compliance Requirements

    The measure requires each political campaign committee to establish an official policy of reporting all foreign contacts by their employees within three days, and to preserve records and information related to reportable foreign contacts for at least three years.

    Upon filing to organize as a political campaign committee, the committee's treasurer must certify that these policies are in place, designate an official on the committee to monitor compliance with these policies, and notify all employees of these policies within one week of beginning their work.

Ban Provision of Campaign Materials to Foreign Nationals

    The bill also forbids candidates and individuals affiliated with a political campaign from providing or offering to provide nonpublic campaign materials to a foreign national. Under the measure, such act would be considered an illegal solicitation of support.

    (During the 2016 presidential election, Paul Manafort, then the chairman of Donald J. Trump's campaign, provided internal polling data to a Russian businessman who had ties to Russian intelligence.)

Expand Ban on Donations by Foreign Interests

    Current law prohibits foreign nationals from directly or indirectly making a contribution or donation of money or other thing of value to a candidate, political campaign or political committee. It is also illegal to solicit, accept or receive a contribution or donation from a foreign national.

    The bill prohibits foreign nationals from directing, dictating, controlling, or directly or indirectly participating in the decision-making process of any person regarding any U.S. election, and it expands the prohibition on foreign money in U.S. elections to specifically bar money by foreign nationals for state and local ballot initiatives or referendums.

    It also prohibits any foreign entity, either individual and corporate, from making contributions to super PACs.

Domestic Subsidiary PACs

    The bill does, however, allow domestic subsidiaries of foreign corporations to establish corporate PACs (political action committees) as long as the foreign national parent corporation does not finance the PAC. Corporate PACs are usually funded by donations from its employees and may make limited contributions directly to a candidate.

    The bill requires the chief executive officer (or the equivalent position) of a company that makes a contribution or expenditure for an electioneering communication in a federal election to first certify to the Federal Election Commission (FEC) that the corporation is not prohibited from such activity.

    The CEO must certify that all individuals who manage the fund and have the authority to decide how the money is spent are citizens of the United States or are lawfully admitted for permanent residence, that no foreign nationals participate in the decision-making, that the corporate PAC does not solicit or accept recommendations for contributions or expenditures from foreign nationals, and that any member of the board of directors who is a foreign national abstains from voting on matters regarding the PAC.

Post-Election Audits

    The measure requires the Federal Election Commission to conduct an audit after each election cycle to determine the incidence of illicit foreign money in the previous federal election.

    In must include random audits of disbursements and must report to Congress the results of the audit within 180 days, along with any recommendations to address the presence of illicit foreign money in U.S. elections.

Political Advertisements

    The bill extends the prohibition on spending by foreign nationals for advertisements in federal elections to online advertisements, and it requires all broadcast stations, cable and satellite television providers, and online platforms to make reasonable efforts to ensure that political advertisements made available through their medium are not purchased by a foreign national, either directly or indirectly.

    It expands the disclosures and disclaimers that must accompany political advertisements, and it specifically includes digital and internet communications in the types of communications that must meet disclaimer and disclosure requirements under the Federal Elections Campaign Act (FECA). It also establishes reporting requirements for online platforms such as Google and Facebook that sell political advertisements.

    Many of the provisions are intended to respond to Russia's efforts in the 2016 U.S. elections to "sow division and distrust in democracy" through social media and internet platforms, while others are intended to provide transparency regarding who is funding political advertisements.

Online Communications

    The bill includes paid internet and paid digital communication in the definition of public communication under FECA — thereby requiring that they adhere to disclosure and disclaimer rules — and it clarifies that payment for public communications by political parties is considered a political contribution or expenditure. Political committees would be required to follow existing disclosure and disclaimer statements when they finance any public communication or solicit contributions through such communication.

    It specifies that electioneering communications include communications that are placed or promoted for a fee on an online platform, and it provides that online or digital news stories, commentary or editorials would not be considered an electioneering communication unless the online or digital facilities are owned or controlled by a political party, committee or candidate.

Disclaimer/Disclosure Requirements

    Current law requires that public communications made by candidates and political committees include specified disclaimers, including whether the advertisement is paid for by the political candidate or is authorized by the political candidate. If the ad is neither paid for nor authorized by the candidate, it must disclose the name and permanent street address, telephone number, or web address of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee.

    The measure establishes special disclaimer rules for internet and digital communications, setting standards for the visibility of text and video and standards for audio disclosure. It provides that if not all of the required disclaimer information can be provided through the medium in which the communication is made, the communication must at least state the name of the person who paid for the communication and provide a means to obtain the remainder of the required information with minimal effort and without receiving or viewing any additional material.

Reporting Requirements

    The bill establishes new reporting requirements for large online platforms with regard to political advertisements. To be subject to these requirements, the platform must sell political advertisements and must have 50 million or more unique monthly U.S. visitors or users for a majority of the preceding 12 months.

    Specifically, an online platform must maintain and make available online to the public a complete record of any request to purchase a political advertisement made by persons who request at least exceed $500 in ads in a calendar year. Advertisers must provide the online platform with the information necessary to comply with this requirement.

    The record must include a digital copy of the ad, a description of the audience targeted, the number of views, the date and time of when the ad was first and last displayed, the average rate charged for the ad, the name of the candidate and office to which the candidate seeks election, and the election or national legislative issue. In the case of an ad made by or on behalf of a candidate, the record must also include the candidate's name, authorized campaign committee and the campaign's treasurer. If the ad was not requested by or on behalf of a candidate, the record must provide the name of the purchaser, the name and address of a contact person for the purchaser, and a list of executives of the purchaser. Records must be maintained for four years.

    The FEC must report to Congress biannually on compliance with these reporting requirements, and with recommendations for any modifications to assist in carrying them out and on how to bring transparency and accountability to political advertisements distributed online for free.

Voter Suppression

    The bill makes it a crime to intentionally hinder, interfere with or prevent another person from voting, registering to vote, or aiding another person to vote or register. Violators would be subject to fines of up to $100,000 or up to five years in prison.

    If a person attempts to violate these provisions — even if they are not ultimately successful — they would also be considered to be in violation.

Deceptive Practices

    The measure makes it a crime to disseminate false information to voters through any means of communication within 60 days of an election, if the individual knows it to be materially false and has the intent to impede or prevent another person from voting. Such false information may include incorrect information regarding polling places or qualifications to vote. Violators would be subject to fines of up to $100,000 or up to five years in prison.

    If the Justice Department believes that state or local election officials have not taken adequate steps to promptly communicate accurate information to correct any materially false voter information, the department must communicate accurate information to the public. Such communications must be accurate and objective, provide only the information necessary to correct the false information, and reach those to whom the false information was provided.

    Within 180 days of each general election, the Justice Department must make a report available to the public that includes all allegations of deceptive practices and shall not include information that is privileged or otherwise protected from disclosure.

CBO Cost Estimate

    As of press time, the Congressional Budget Office had not released a cost estimate for the bill.