No time for complacency: How to combat foreign interference after the midterms

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.

David Salvo is Deputy Director of, and Joshua Kirschenbaum is Senior Fellow at, the Alliance for Securing Democracy.This article, originally posted to the website of the German Marshall Fund of the United States, is published here courtesy of the GMFUS.