Episode 954: What Is Foreign Interference, Anyway? : Planet Money We've heard a lot about illegal foreign meddling in the United States elections. But what about legal foreign participation? | Subscribe to our weekly newsletter here.
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Episode 954: What Is Foreign Interference, Anyway?

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Episode 954: What Is Foreign Interference, Anyway?

Episode 954: What Is Foreign Interference, Anyway?

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UNIDENTIFIED PERSON #1: This is PLANET MONEY from NPR.

KAREN DUFFIN, HOST:

If you were anywhere in the vicinity of the Internet last month, you probably heard about these two guys.

(SOUNDBITE OF ARCHIVED RECORDING)

LEV PARNAS: Hi, Moshe.

RUDY GIULIANI: Moshe, how are you, baby?

PARNAS: How you doing?

DUFFIN: Lev Parnas and Igor Fruman there sending love to their friend Moshe alongside their pal Rudy Giuliani.

(SOUNDBITE OF ARCHIVED RECORDING)

GIULIANI: I can't wait to come back.

UNIDENTIFIED PERSON #2: (Laughter).

PARNAS: See you in Ukraine soon.

IGOR FRUMAN: Yeah.

PARNAS: We love you.

FRUMAN: We love you.

UNIDENTIFIED PERSON #2: Fantastic.

DUFFIN: Lev and Igor were traveling recently when their travel plans were interrupted.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #3: Lev Parnas and Igor Fruman were arrested at Dulles Airport last night as they were getting ready to leave the country with one-way tickets.

DUFFIN: The two were charged with campaign finance violations. Lev and Igor are American citizens, who, allegedly, helped route foreign money into American elections. In part, they are charged with taking money from a Russian oligarch, laundering it a smidge and then giving it to U.S. politicians, which, by the way, we know in part because someone involved wrote a message that literally spelled out, hi, a Russian oligarch sent us money to funnel to politicians. Why do people still spell out their crimes in writing?

Anyway, when you think about foreign interference, it's that kind of situation that you're probably thinking about - someone living far away sneaking money into U.S. elections. But there are, of course, millions of foreigners, people who are not citizens of the United States, who are already here in the United States making money, spending money, just living their lives. So we started to wonder, what's the line for them? Like, if someone has, you know, no connection to oligarchs - they're just a foreigner living here in the U.S. - can that person legally participate in an election? And what's the line between participation and meddling?

So a couple of weeks ago, I sent out an email to a bunch of my friends saying basically, hey, do you know anyone who is a foreigner - someone who is not a citizen - who lives here in the United States and would like to participate in the election? And that's how I met Rachel.

So you are a foreigner who would like to interfere or participate in our election process?

RACHEL: Yes, I would like to.

DUFFIN: Rachel is a British citizen. She's here in New York on a temporary work visa. She is living and working here alongside the rest of us.

You do all the things that most of us do here. Like, you live in an apartment or house.

RACHEL: I do.

DUFFIN: You go to a job.

RACHEL: I do.

DUFFIN: You...

RACHEL: I certainly pay taxes.

DUFFIN: You pay taxes.

RACHEL: I do.

DUFFIN: Oh, my God. I don't think I realized that.

Also like the rest of us, decisions that our politicians make affect whether she has a job, the taxes she pays - just affects her life. So she wants to have a say in picking who makes those decisions.

What would you like to do?

RACHEL: Oh, God. I'd like to do everything. I'd like to vote. But I understand I am not allowed to.

DUFFIN: Is there a particular presidential candidate that you want to support?

RACHEL: Yeah.

DUFFIN: She cannot vote, of course - at least not federally. But I found out that there are a lot of other ways that she can participate. I spoke with a bunch of lawyers. I made a campaign finance flowchart out of Post-it notes on my cubicle wall. I read a bunch of court cases. And then I broke the news to Rachel about what I found.

So I have some good news for you, actually.

RACHEL: OK.

DUFFIN: You can participate in the electoral process...

RACHEL: Oh.

DUFFIN: ...Sort of.

RACHEL: OK.

DUFFIN: Rachel agreed to let us be her guide to legal participation in the election. We will walk her all the way up to the line between legal and illegal foreign participation. We did also learn that you basically have to know that you're crossing that line for it to be a crime. So what we're saying is that if you would like to claim ignorance, now would be the time to turn off the podcast. If not, buckle up.

(SOUNDBITE OF MUSIC)

DUFFIN: Hello, and welcome to PLANET MONEY. I'm Karen Duffin. Today on the show - legal foreign participation in U.S. elections. We find out, can Rachel make political ads? Can she volunteer for a campaign? Can she donate money? We find the line for her. And then we meet the lawyer who forced the Supreme Court to consider whether we should erase that line altogether.

(SOUNDBITE OF MUSIC)

DUFFIN: Now, just to be clear, I am not a lawyer. This is not legal advice. If you are planning to interfere in the upcoming election, I suggest you get yourself a lawyer. All right. I have Rachel here in the studio with me. Again, she is not an American citizen. She is here on a work visa. And we assume, like many others like her, Rachel would really like to participate in the 2020 election. She would also really like to not break the law. So we are here to introduce her to what she can legally do.

OK. You - what we could do here in the studio right now is we could make flyers.

RACHEL: Oh, OK.

DUFFIN: OK. All right.

She can DIY her own political ads. Paper, markers, a homemade slogan - all legal.

RACHEL: I would like to do a little doodle on it, but I don't know what to doodle.

DUFFIN: All right. While she's drawing, a few caveats. The rules that we are explaining here are strictly for people who are here in the U.S. on visas. The rules are different for permanent residents. People with green cards - they actually have a lot more rights than someone like Rachel. Again, if you want to know what rules apply to you, you should definitely consult an actual lawyer.

RACHEL: I'm going to have a colorful heart.

DUFFIN: OK, we have I love or I heart, however you want to say it.

RACHEL: Yeah, I don't know. Do you do heart or do you love?

DUFFIN: Rachel's flyer is basically a piece of printer copy paper. She's written in markers. She has this big orange neon heart, and it says, I heart - we're going to let her keep her candidate to herself.

So far, what Rachel is doing is legal, though if you were to think of her flyer as a political ad, the rules for political ads do vary a little bit. The courts generally give you a lot more leeway if your ad is about a political issue - something like health care policy. But the courts are much stricter if your ad is directly about a political candidate, like if your ad has something that the courts call quote, "magic words" - words like vote for, elect, support, defeat. I'm not sure if I heart is on the list of magic words. But since she is putting a candidate's name after that heart, this is probably an ad that would be more strictly regulated. But it is still within bounds.

OK. All right. This is legal. You can do this.

RACHEL: I hope so.

(LAUGHTER)

DUFFIN: And now with her - so far - legal political ad in hand, Rachel heads out to the streets so she can hand out her flyer.

RACHEL: Is that breaking a law?

DUFFIN: No, that's perfect.

RACHEL: (Laughter).

DUFFIN: ...This is how you do it.

RACHEL: All right, I'll see...

DUFFIN: Volunteer work like this - knocking doors, making calls, standing on the street in front of the NPR studios, handing out flyers - as long as you are not being compensated for it, it is legal.

RACHEL: I don't feel good. No one's responding.

DUFFIN: This is the price of participating in our election, Rachel.

RACHEL: Time and energy.

DUFFIN: And self-esteem.

RACHEL: And self-esteem (laughter), yeah.

DUFFIN: She does manage to have some success. So now she needs more copies of her flyer. So we head uptown to a copy shop for the last and most important stop on our campaign trail.

OK. I see a taxi.

RACHEL: OK.

DUFFIN: All right. We get to the copy shop, and we head in. Rachel hands her fliers off to the clerk.

UNIDENTIFIED PERSON #4: Color or black and white?

DUFFIN: Everything so far legal.

RACHEL: Color does pop. I would like them color.

DUFFIN: OK. Color - 75 cents. Color copies 75 cents each. She pulls out her wallet to pay for the copies. And this moment, right here - as she reaches for her credit card, this is where we finally hit the line.

OK, so you are about to commit a federal crime.

RACHEL: Excuse me?

DUFFIN: So if you pay for these copies, you have committed a federal campaign violation.

RACHEL: Damn. What? Really?

DUFFIN: Yeah.

RACHEL: How so?

DUFFIN: You can draw this lovely flyer. You can hand it out as you did so skillfully, but the moment you pay money for that flyer, you have committed a federal crime.

Technically, if it's less than $2,000, it's a civil violation, not a crime. But anyway around it, the place that election law draws the line is at money. The idea is you can't really sway an election by handmaking flyers or volunteering to hand them out one by one. If you want to influence an election, you have to spend money. Ergo, the way to limit political influence or meddling is to limit money. Rachel cannot spend even that 75 cents. She also can't donate that 75 cents to a political party or a candidate. Terms and conditions apply. There are some exceptions. But that is the gist.

RACHEL: I guess I'm going to have to go home and buy - handmake 10,000 more. Oh, no, because then when I buy the paper to make the flyers - is that also...

DUFFIN: Oh, no, I don't know. That's tricky.

RACHEL: Such a web of financial complications.

DUFFIN: And over the years, as many other campaign finance restrictions have been removed for citizens, for corporations, this ban on foreign money remains. But there was a brief moment about seven years ago that it looked possible the ban might be lifted and that Rachel might be able to make that copy. After the break, another foreigner in a copy shop with a dream of paying for his own copies.

(SOUNDBITE OF CARL HARMS' "WHAT'S HE UP TO")

DUFFIN: Rachel is not the only foreigner who would like to brazenly make their own copies. The dream of participating in a U.S. election drove this guy all the way to the Supreme Court.

YAAKOV ROTH: My name is Yaakov Roth. I'm Canadian.

DUFFIN: Yaakov was here in the U.S. for law school in the mid-2000s when a friend asked him for a campaign donation. And that is when he learned about the ban on foreign money. And he could have just taken this as a great excuse to say, I'm so sorry. I would love to donate but - federal crime. But it bothered Yaakov. He thought, look. When Congress made this ban, they were trying to stop foreign influence from people living overseas.

ROTH: And nobody was really thinking too much about the millions of noncitizens who are living right here within the borders, who are otherwise engaged in every aspect of American life.

DUFFIN: This was in Yaakov's mind when he finished law school and he was clerking at the Supreme Court in 2009. And while he was there, this one case came through.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: We'll hear argument today in case 08205...

DUFFIN: Chief Justice John Roberts there, introducing a case you have probably heard of.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERTS: Citizens United v. the Federal Election Commission.

DUFFIN: Yaakov heard it a little differently than most people. What most people remember about Citizens United is that the Supreme Court treated corporations like people and allowed them much more freedom to spend money in politics. But what Yaakov keyed into was the court's reasoning. The court equated political spending with speech and said it's unconstitutional to restrict speech based solely on the identity of who is speaking. Like, you can't say someone is a redhead or a Texan, or, in this case, a corporation. And therefore, they're not allowed to speak. And during the Citizens United oral arguments, the late Justice Antonin Scalia specifically asked, does that same logic also apply to foreigners?

(SOUNDBITE OF ARCHIVED RECORDING)

ANTONIN SCALIA: Do you think Congress could prevent foreign individuals from funding speech in United States elections?

TED OLSON: That's, of course, a different question. I haven't studied it, Justice Scalia.

SCALIA: It's not different. I asked it because I thought it was related.

DUFFIN: Yaakov thinks, well, it is related. This is exactly what they're doing to me. The government is using my identity, person here on a visa, as the sole reason to say that I can't speak about elections.

ROTH: And that's not an argument in any other context that courts have been willing to tolerate.

DUFFIN: Courts don't even tolerate restrictions on speech, just because someone isn't a citizen.

ROTH: Even if you're not a citizen, if you are living in this country, you are protected by the Constitution and certainly by the First Amendment.

DUFFIN: Yaakov also knows that corporations used to have all the same restrictions on political money as foreigners do. Corporations have just managed to convince the courts to whittle down their restrictions. He thinks, maybe I can do the same for us.

So Yaakov rallies a few other Canadians - a woman in medical school, guy in law school with him.

ROTH: You know, the Canadians sort of knew each other...

(LAUGHTER)

ROTH: ...So I met him through that circle.

DUFFIN: The Canadians united, and on behalf of Rachel and everyone else like them, they filed a lawsuit.

Dear Supreme Court, you just ruled it unconstitutional to restrict political spending solely because of a group's identity. And we want to know, why doesn't that apply to us?

So in the summer of 2011, Yaakov's case goes to the District Court in Washington, D.C. Yaakov's side stands up before the three judges and says, for starters, we want to be clear about what we're asking for and what we are not asking for.

ROTH: So I think it's important to distinguish actual voting from speech.

DUFFIN: Yaakov's side says, look, we get why you restrict voting to citizens. That is direct democracy.

ROTH: Someone who runs an ad or hands out pamphlets, that person is not picking the leaders of the country. That person is simply sharing his perspective on who the voters should choose.

DUFFIN: That is the thing we're asking for. And that thing is constitutionally protected. If the government wants to restrict that right, our right to simply share our perspectives, legally they have to prove that they have a really, really, super, duper, amazing reason to restrict it.

Arguing the other side of this case, on behalf of the government was a lawyer named Adav Noti. And he says, well, actually we do have a really good reason to restrict foreign spending in elections. Here's Adav.

ADAV NOTI: Foreign national spending isn't like the campaign finance laws that were issued in Citizens United. It's actually a national security measure. It's a matter of protecting the nation against foreign financial interference, which is very different from standard campaign finance laws.

DUFFIN: Adav points to a bunch of other ways that the Supreme Court has already permitted the government to restrict foreign participation. In some areas, noncitizens can't be school teachers. In other areas, non-citizens can't be police officers on the idea that Americans should be enforcing American laws.

NOTI: Then clearly, we can prohibit foreign nationals from spending money to try to influence what the laws are in the first place.

DUFFIN: Yaakov, for team foreigners, says, I don't know, guys, that smells a lot like xenophobia to me. To which, Adav responds.

NOTI: You know, foreign interference in American elections is not a hypothetical. It has happened again and again. And so when Congress, you know, brought in the foreign national ban, there wasn't, you know, fear-mongering or xenophobia.

DUFFIN: He says, let's start with the Nazis. As World War II began, the Nazis funneled money to U.S. politicians, who, in turn, suddenly started advocating for the U.S. to stay out of the war. Then there was Watergate, which uncovered foreign donations to Nixon. That's when Congress officially banned all foreign donations to political candidates. So foreign money just rerouted to political parties. During the 1996 elections, Chinese nationals were generous with the Democratic Party. There was a scandal involving Al Gore at a Buddhist temple.

So finally in 2002, Congress banned basically all the things in McCain-Feingold - no foreign contributions to candidates or parties and no independent spending. And this ban is probably the broadest ban in campaign finance law, which brings us to Yaakov's final argument. Even if the government proves it has a compelling interest to mess with a constitutional right, they also have to prove one more thing - that there is no other narrower way to fulfill that interest.

ROTH: It can't be overbroad. It can't be underinclusive. It can't be speculative.

DUFFIN: If a smaller restriction will work, the government has to do that smaller thing instead. So Yaakov says this full-out ban on all foreign national money is too broad. I mean, I get it if you want to temper foreign nationals influence on politics.

ROTH: I mean, that's fine. But that's an argument for counterspeech. It may be an argument for disclosure of citizenship. But it is not an argument for shutting them out of the discussion entirely. The First Amendment doesn't allow that type of blunderbuss approach. And...

DUFFIN: Wait, blunderbuss? What's that?

ROTH: Just sort of broad, kind of across the board.

DUFFIN: Is this a legal word or a real word?

ROTH: No, that's...

DUFFIN: (Laughter).

ROTH: Think it's a real word.

DUFFIN: In the end, blunderbuss won the day. Brett Kavanaugh was a judge at the district court at the time. And he wrote the ruling. And what he said is, when national security is at stake, the government is allowed to be this broad because it's not that we want to temper foreign influence. We want zero foreign influence. So the money limit can be zero. Yaakov, Rachel, our British friend, and all of the other noncitizens living in America - they lost. The Supreme Court bypassed oral arguments and simply affirmed the lower court's decision. Yaakov got the news while he was at work.

ROTH: Yeah. I was in my office, got the order and sort of - my jaw hit the floor.

DUFFIN: Really?

ROTH: Yeah.

DUFFIN: But as your mom always told you, when the Supreme Court closes a window, the District Court opens a door. Judge Kavanaugh in the district court ruling said, while foreign nationals can not fund ads about candidates, they can still fund ads about issues. So foreign nationals can't make an ad that says vote for Obama. But they could make one that says support Obamacare. And we have seen foreign nationals run right through that open door.

In fact, one of the Russian companies indicted during the Mueller investigation specifically cited Yaakov's case to defend their actions. The company pointed at one of the ads they made and said, this isn't a candidate ad - one of those prohibited ads. We didn't say don't vote for Hillary. We said - and this is a direct quote, "Hillary is a Satan." I mean, technically, that's an issue.

ROTH: Look, I mean, we - that's one thing about campaign finance regulation.

DUFFIN: Yeah.

ROTH: It doesn't really matter what the regulations are. There's always someone clever enough to figure out a way around it.

DUFFIN: Yes.

ROTH: Right? Or a lawyer who's there to help...

DUFFIN: (Laughter).

ROTH: ...Figure out a way around it.

DUFFIN: You're like, that's what I call job security.

(LAUGHTER)

ROTH: That's one of the sort of interesting aspects of campaign finance - is sort of the futility of all of it at the end of the day.

DUFFIN: This seems to be the immutable truth of campaign finance laws. Money always finds a way. It's why the Federal Election Commission was created after Watergate to police all of this. But right now that commission is all but defunct. The FEC needs four commissioners in order to function. It currently only has three. The president and the Senate do not appear to be in a rush to appoint any new commissioners. And so for now, during this presidential campaign season, if foreign money does make its way into the election, the agency tasked with policing all of this has no power to stop it.

(SOUNDBITE OF LEIGH MCALLISTER GRACIE'S "SMOKE AND MIRRORS")

DUFFIN: If you have ever tried to interfere in an election, please email us. We are planetmoney@npr.org. Or if you would like to submit something anonymously, go to securedrop.npr.org. Again, that's securedrop.npr.org. We are also on Facebook, Instagram and Twitter. We are @planetmoney. If you enjoyed this show, write us a review. It's super easy. It helps people find us. Today's show was produced by Alexi Horowitz-Ghazi. Our supervising producer is Alex Goldmark. Our editor is Bryant Urstadt. Special thanks to Rick Hasen, oyez.org and Robert E. Mutch and his book "Campaign Finance: What Everyone Needs To Know." I recommend it. I'm Karen Duffin. This is NPR. Thanks for listening.

(SOUNDBITE OF LEIGH MCALLISTER GRACIE'S "SMOKE AND MIRRORS")

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