The American electoral system cannot protect itself from foreign influence.
We know that Russia influenced the 2016 American election. Here is a link to a top-secret NSA report on the Russian hacking of ballot machines. Here is another NSA document assessing Russian activities during the election.
However, none of this changes the realities of foreign influence. A foreign power can legally influence American elections by exploiting loopholes opened by recent Bluman v FEC court rulings.
In the 2000 election, the team of Al Gore, who won the popular vote against George W. Bush, asked for a recount in a few counties in Florida after voting irregularities. Furthermore, the governor of Florida was Jeb Bush, George W. Bush’s brother. The supreme court ruled against the recount, arguing that the purpose of the election was not to accurately chose a winner, but to follow election laws exactly.
This is a product of a legal view called formalism. Formalism emphasizes procedure and following the word of the law, even when this conflicts with common sense. This view is today ascendant in the supreme court.
The legal statute meant to protect American elections from foreign influence is this one:
52 U.S. Code § 3012
(a)Prohibition It shall be unlawful for—
- a foreign national, directly or indirectly, to make—
- a contribution or donation of money or other things of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
- a contribution or donation to a committee of a political party; or
- an expenditure, independent expenditure, or disbursement for an electioneering communication(within the meaning of section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
For years, this law protected American elections. It only took one ruling, Bluman v FEC, by the US district court of the District of Columbia, later affirmed by the supreme court, to pull the teeth out of this protection.
The ruling made was that the law above (52/3012) “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.”
A story like “Hillary Clinton is a Terrorist” does not necessarily expressly advocate for or against a particular candidate. Thus, a foreign power can support any candidate they would like as long as they do not expressly advocate for or against their election.
According to the book of Ben Freeman, the US foreign policy is “already altered, influenced and sold” to foreign powers. With the Bluman vs FEC ruling and no mechanisms in place to stop it, foreign powers may also pick and chose their candidates, undermining American democracy.
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