From cabinet officials in the Trump administration to the social media platform companies, there has been widespread acknowledgement in the United States that the Russian government and other authoritarian states targeted the midterm elections and will continue to interfere in U.S. democracy. The administration and Congress have tools at their disposal to raise the costs on those who interfered in the midterms and to deter authoritarian actors from interfering in U.S. democratic institutions and processes in the future. These include punitive measures like sanctions, defensive steps like improving election security and regulating political advertisement online, and congressional oversight functions to hold the administration accountable and keep pressure on tech companies to secure their platforms from manipulation.
Full implementation of Executive Order 13848, which President Donald Trump signed on September 12, is a crucial first step to signal to adversaries that interfering in U.S. elections will not be tolerated. The intelligence community is already getting started on implementing the order’s directive for the director of national intelligence (DNI) to deliver a report on foreign interference in a federal election by reporting on the attempt during the midterms. E.O. 13848 defines foreign interference broadly to include:
“Any covert, fraudulent, deceptive, or unlawful actions or attempted actions of a foreign government, or of any person acting as an agent of or on behalf of a foreign government, undertaken with the purpose or effect of influencing, undermining confidence in, or altering the result or reported result of, the election, or undermining public confidence in election processes or institutions.”
This definition covers far more than the hacking of campaign e-mails, alteration of voter registration lists, penetration of voting systems, and manipulation of vote tallies to cover a wide range of disinformation efforts, including content aimed at sowing confusion or undermining faith in the integrity of elections. (E.O. 13848 also calls for the Departments of Homeland Security and Justice to issue a report on the narrower question of whether an attempted or actual interference operation affected targeted election or campaign infrastructure). This definition is critical because disinformation seeking to call into question the integrity of the elections, in addition to attempted hacks of politicians and political campaigns’ e-mail accounts, has been part of the Russian government’s tactics to undermine confidence in election results.
The administration can – and should – use authorities that predate E.O. 13848, including sanctions mandated by the 2017 Countering America’s Adversaries Through Sanctions Act (CAATSA), to punish foreign perpetrators of election interference. Sanctions contained in Executive Order 13757, related to malicious cyber-enabled activities, could also be applicable. But E.O. 13848 also gives the Treasury Department authority to freeze the assets of any foreign actor that either interfered directly in an election or provided material support to or acted as an agent of those directly involved in interference. The Treasury Department can designate foreign interference actors under the order even prior to the issuance of the mandated reports.
E.O. 13848 further calls for the Treasury Department with other cabinet agencies to submit joint recommendations to the president as to whether to impose additional sanctions beyond the targeting of foreign actors involved in election interference. The options range from visa bans to limited financial restrictions to full asset freezes against “the largest business entities” in sectors of strategic significance such as finance, defense, energy, technology, and transportation. Depending on the findings of the DNI and the Treasury Department reports, the president should consider this wider range of potential sanctions. It will also be important for the White House and executive agencies to provide public explanations of their decisions, as the reports themselves are not slated for release.
Fully implemented, and coupled with consistent messaging by the president, E.O. 13848 could serve as a deterrent to foreign actors that may have been engaged in, or have considered engaging in, interference in U.S. elections. Where the order is potentially deficient, however, is the wide discretion left to the president to decide if and how to respond. While executive discretion in foreign policy is important, President Trump’s inconsistency about the existence, magnitude, or significance of interference makes such discretion a more fraught proposition now than would usually be the case.
If the White House does not act by February, when the 90-day deadline for the Treasury report passes, Congress should step in. Section 224 of CAATSA codifies a sanctions response to election interference, but interference is more narrowly defined there than in E.O. 13848 and is limited only to activity organized by Russia. Fresh legislation would accomplish three goals. First, it would force the president’s hand in the current instance. Second, it would put on record for the long term the seriousness with which the United States takes any election interference, not just activity linked to Russia. And finally, it should mandate reporting requirements that compel the administration to present information about election interference to Congress and – if unclassified – the public. Legislating reporting requirements would not only guard against future potential policy changes, it would also reduce the risk of political calculations unduly affecting decision-making in the administration – something that the Obama administration struggled with in 2016. There is existing legislation, such as the DETER (Defending Elections from Threats by Establishing Redlines) Act of 2018 that could serve as a model for future bills on reporting requirements.
Beyond sanctions, Congress can act in other ways to better defend U.S. democracy. Passing legislation along the lines of the bipartisan Secure Elections Act would improve coordination between the federal, state, and local governments on cyber threats to voting infrastructure, and make more federal resources available to the states. Legislation to improve disclosure requirements for online political ads would help Americans understand who is funding these, just as political advertisers on other media have to disclose their sponsorship. The bipartisan Honest Ads Act is one existing model. Congress should also continue to hold tech companies responsible for not closing off vulnerabilities on their online platforms that authoritarian regimes exploit. It is increasingly clear that some of the companies have been more focused on damage control and repairing their reputation than addressing the security of their platforms and protecting the privacy of their users. The time has come for Congress to have a robust discussion of possible regulations to ensure technology does not undermining U.S. security, while protecting Americans’ rights to privacy and free speech.
The United States remains vulnerable to foreign interference. This is apparent not only in operations targeting the midterms, but also in the constant drip of revelations from congressional committees, investigative journalists, and the online platforms themselves about authoritarian operations against U.S. democracy. If the United States is to defend itself better against this and overcome the bitter politicization of the issue, the Trump administration and Congress need to act now in a bipartisan manner, using tools they already have and others that can be implemented at the start of the new congressional session. This would pay short-term dividends – after all, the 2020 presidential election campaign kicks off in just a few months – and have long-term benefits for the health of U.S. democracy.
The views expressed in GMF publications and commentary are the views of the author alone.