Campaign And Election Security Policy: Overview And Recent Developments .

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Campaign and Election Security Policy:Overview and Recent Developmentsfor CongressJanuary 2, 2020Congressional Research Servicehttps://crsreports.congress.govR46146

SUMMARYCampaign and Election Security Policy:Overview and Recent Developmentsfor CongressIn the United States, state, territorial, and local governments are responsible for most aspects ofselecting and securing election systems and equipment. Foreign interference during the 2016election cycle—and widely reported to be an ongoing threat—has renewed congressionalattention to campaign and election security and raised new questions about the nature and extentof the federal government’s role in this policy area.This report provides congressional readers with a resource for understanding campaign andelection security policy. This includes discussion of the federal government’s roles; state orterritorial responsibilities for election administration and election security; an overview ofpotentially relevant federal statutes and agencies; and highlights of recent congressional policydebates. The report summarizes related legislation that has advanced beyond introduction duringthe 116th Congress. It also poses questions for consideration as the House and Senate examinewhether or how to pursue legislation, oversight, or appropriations.R46146January 2, 2020R. Sam Garrett,CoordinatorSpecialist in AmericanNational GovernmentSarah J. EckmanAnalyst in AmericanNational GovernmentKaren L. ShantonAnalyst in AmericanNational GovernmentIn the 116th Congress, the FY2020 National Defense Authorization Act (NDAA; S. 1790; P.L. 116-92), enacted in December2019, contains several provisions related to campaign and election security. Most provisions involve providing Congress orfederal or state agencies with information about election interference. It also requires the Director of National Intelligence, incoordination with several other agencies, to develop a strategy for countering Russian cyberattacks against U.S. elections. Inaddition, the Consolidated Appropriations Act, 2020 (P.L. 116-93; H.R. 1158), also enacted in December 2019, includes 425 million for payments to states, territories, and the District of Columbia to make general improvements to theadministration of federal elections, including upgrades to election technology and security.As of this writing, 116th Congress legislation that has advanced beyond introduction in at least one chamber includes H.R. 1;H.R. 753; H.R. 1158; H.R. 2500; H.R. 2722; H.R. 3351; H.R. 3494; H.R. 3501; H.R. 4617; H.R. 4782; H.R. 4990; S. 482; S.1060; S. 1321; S. 1328; S. 1589; S. 1790; S. 1846; S. 2065; and S. 2524. Other bills also could have implications forcampaign and election security even though they do not specifically reference the topic (e.g., those addressing cybersecuritygenerally or voter access). Several congressional committees also have held legislative or oversight hearings on the topic.Federal statutes—such as the Help America Vote Act (HAVA); Federal Election Campaign Act (FECA); and the VotingRights Act (VRA)—all contain provisions designed to make campaign finance, elections, or voting more secure. Severalfederal agencies are directly or indirectly involved in campaign and election security. These include, but are not limited to,the Department of Defense (DOD); Department of Homeland Security (DHS); Department of Justice (DOJ); ElectionAssistance Commission (EAC); and Federal Election Commission (FEC).Securing federal elections is a complex policy challenge that crosses disciplinary lines. Some of the factors shaping thatcomplexity include divisions of authority between the federal and state (or territorial or local) governments; coordinationamong federal agencies, and communication with state agencies; funding; changing elections technology; and the differentneeds of different sectors, such as campaigns, administrators, and vendors.This report does not attempt to resolve ongoing policy debates about what campaign and election security should entail. Thereport cites other CRS products that contain additional discussion of some of the topics discussed herein. The report does notaddress constitutional or legal issues.Congressional Research Service

Campaign and Election Security Policy: Overview and Recent Developments for CongressContentsIntroduction . 1Defining Election Security . 2Scope of the Report . 3Recent Legislative Activity . 4Development of Federal Role in Campaign and Election Security . 5Selected Federal Statutes . 7Selected Federal Agencies . 10Election Assistance Commission (EAC) . 10Federal Election Commission (FEC) . 11Department of Homeland Security (DHS) . 11Department of Justice (DOJ) . 11Intelligence Community (IC) . 12Selected Other Federal Agencies. 12Coordination By and Among Selected Federal Agencies . 13Department of Homeland Security Coordination Roles . 14Election Assistance Commission Coordination Roles . 15Intelligence Community Coordination Roles . 15Coordination Roles and Selected Other Federal Agencies . 16Federal Agency Roles and Campaign Security . 16Federal Election Security Guidance . 17Federal Funding for Securing Election Systems . 18Funding for States After the 2016 Election Cycle. 18Funding for Federal Agencies After the 2016 Election Cycle. 19State and Local Role in Election Security . 20Selected Recent Policy Issues for Congress . 22Concluding Observations . 28TablesTable 1. 116th Congress Legislation, Which Has Passed At Least One Chamber, Relatedto Campaign and Election Security . 4Table 2. Selected Statutes Potentially Relevant for Campaign and Election Security . 8Table 3. Selected Agency Roles in Campaign and Election Security. 13Table 4. Selected Recent Policy Issues Related to Campaign and Election Security . 23AppendixesAppendix. Legislation Related to Campaign and Election Security That Has AdvancedBeyond Introduction, 116th Congress . 30Congressional Research Service

Campaign and Election Security Policy: Overview and Recent Developments for CongressContactsAuthor Information. 37Congressional Research Service

Campaign and Election Security Policy: Overview and Recent Developments for CongressIntroductionElection security is one of the most prominent policy challenges facing Congress. A November2019 warning from the heads of several federal agencies illustrates the interdisciplinary andongoing nature of the threat to American elections. According to the joint statement, in the 2020election cycle, “Russia, China, Iran, and other foreign malicious actors all will seek to interfere inthe voting process or influence voter perceptions. Adversaries may try to accomplish their goalsthrough a variety of means, including social media campaigns, directing disinformationoperations or conducting disruptive or destructive cyber-attacks on state and localinfrastructure.”1These are just the latest challenges in securing American elections. Traditionally, electionadministration emphasizes policy goals such as ensuring that all eligible voters, and only eligiblevoters, may register and cast ballots; that those ballots are counted properly; and that the votingpublic views that process as legitimate and transparent. Preserving election continuity is a chiefconcern. Election officials therefore have long prepared contingency plans that address variousrisks, such as equipment malfunctions, power outages, and natural disasters.These traditional concerns remain, but have taken on new complexity amid foreign interference inU.S. elections. In addition to managing traditional security concerns about infrastructure andadministrative processes (e.g., counting ballots), mitigating external threats to the accuracy ofinformation voters receive, particularly from foreign sources, is a potential challenge for politicalcampaigns, election administrators, and the public.Addressing any one of these topics might involve multiple areas of public policy or law. Doing soalso can involve complex practical challenges about which levels of government, or agencies, arebest equipped or most appropriate to respond. How those entities can or should interact withpolitical campaigns, the private sector, and voters, are also ongoing questions. Technicalcomplexity in some areas, such as cybersecurity, and the federal structure of shared national, stateor territorial, and local responsibility for administering federal elections make election securityeven more challenging.Election security in general appears to be a shared policy goal, but debate exists in Congressabout which policy issues and options to pursue. Debate over the scope of the federalgovernment’s role in election security shapes much of that debate. State, territorial, and localgovernments are responsible for most aspects of election administration, including security.This report provides congressional readers with an overview that includes how campaign and election security has developed as a policy field;recent legislative activity, especially bills that have advanced beyondintroduction;federal statutes and agencies that appear to be most relevant for campaign andelection security;state, territorial,2 or local roles in administering elections, and federal support forthose functions; andU.S. Department of Justice et al., “Joint Statement from DOJ, DOD, DHS, DNI, FBI, NSA, and CISA on EnsuringSecurity of 2020 Elections,” press release, November 5, 2019, at i-nsa-and-cisa-on-ensuring-security-of-2/.2 In general, campaign and election security policy matters are similar in states and territories, although specific statutes1Congressional Research Service1

Campaign and Election Security Policy: Overview and Recent Developments for Congress highlights of recent policy debates, and potential future questions forcongressional consideration.Defining Election SecurityThere is no single definition of “election security,” nor is there necessarily agreement on whichtopics should or should not be included in the policy debate. Broadly speaking, election securityinvolves efforts to ensure fair, accurate, and safe elections. This can include a variety of activitiesthat happen before, during, and after voters cast their ballots. A narrow definition of election security might address only efforts to protecttraditional election infrastructure, such as voter registration databases, votingmachines, polling places, and election result tabulations.More expansive definitions might also address issues affecting candidates andcampaigns. This includes, for example, regulating political advertising orfundraising; providing physical or cybersecurity assistance for campaigns; orcombating disinformation or misinformation in the political debate.The policy debates discussed herein can affect different kinds of entities uniquely. Perhaps most notably, security concerns affecting campaigns can differ fromthose for safeguarding elections and voting. Campaigns in the United Statesare about persuading voters in an effort to win elections. They are private,not governmental, operations and are subject to relatively little regulationbeyond campaign finance policy.Elections are more highly regulated, although specific practices can vary, astheir administration is primarily a state- or local-level responsibility.Provisions in state or local law, and, to a lesser degree, federal law, regulatehow voters cast ballots and who may do so. Some security discussionsinclude issues related to voter access, while others view access as a separateelections policy matter. This report briefly notes that access can be acomponent of campaign and election security policy debates, but the reportdoes not otherwise address access issues.3This report does not attempt definitively to resolve ongoing policy debates about what campaignand election security entails or should entail, nor does it fully address all aspects of the policyissues discussed. Instead, it provides congressional readers with background information toconsider that debate and decide whether or how to pursue legislation (including appropriations) ordistinguish between states and territories in some cases. A discussion of how federal election law applies to territoriesversus states is beyond the scope of this report. Unless otherwise noted, campaign and election security concernsdiscussed in the text of this report are relevant for territories.3 Because voter access is primarily a state-level responsibility, this report does not address the topic in detail, althoughit does address some Voting Rights Act provisions. For 116th Congress discussion of access issues, see, for example,U.S. Congress, House Committee on House Administration, Subcommittee on Elections, Report on Voting Rights andElection Administration in the United States of America, prepared by Chairperson Marcia L. Fudge, 116th Cong., 1stsess., at ction-administration-united-states-america, which includesdiscussion of misinformation issues that are potentially relevant for election security; and U.S. Congress, HouseCommittee on House Administration, Subcommittee on Elections Voting Rights Act Findings: Minority Views, 116thCong., 1st sess., at t-minority-views. Both documents are undated andwere released in 2019. See also, for example, House debate on H.R. 4, “Voting Rights Advancement Act of 2019,”House debate, Congressional Record, daily edition, December 6, 2019, pp. H9308-H9334. Most issues related to H.R.4 do not specifically address campaign and election security and are thus beyond the scope of this report.Congressional Research Service2

Campaign and Election Security Policy: Overview and Recent Developments for Congressoversight. Because all the topics noted above—and others discussed throughout the report—havebeen components of the recent congressional debate over how to safeguard American campaigns,elections, and voting, this report uses the general term campaign and election security.Scope of the ReportThis report discusses federal agencies, statutes, and policies designed to prevent or respond todeliberate domestic or foreign security threats to campaigns, elections, or voting. Conceptsdiscussed in the report also have implications for some unintentional threats, such as naturaldisasters or other emergencies that could affect campaigns, elections, or voting. Legislation citedin the report contains specific references to campaign and election security. This includes bill textthat uses variations of terms such as campaign, election, or vote near variations of the termsinterference or security. Some readers might view areas addressed herein as more or less directlyrelated to campaign or election security, and alternative methodologies could yield other bills orpolicy topics for consideration.The report does not include detailed attention to more traditional aspects of campaign finance,election administration, or voting, particularly voter mobilization. For example, the reportdiscusses Help America Vote Act provisions that authorize funding states may use to help secureelections, but not provisions that authorize funding for the Election Assistance Commissiongenerally.4 Similarly, the report briefly discusses Voting Rights Act provisions that prohibit voterintimidation, but it does not discuss other federal statutes enacted to make registration and votingeasier.5 In addition, the report briefly notes lobbying statutes that might be relevant for regulatingcertain corporate or foreign activity related to U.S. election interference, but it does notsubstantially address lobbying as a policy area.The report emphasizes domestic implications of campaign and election security. This includesattention to protections for U.S. campaigns and elections from the effects of foreigndisinformation and misinformation efforts. The Appendix at the end of this report includessanctions or immigration legislation that specifically references interference in U.S. elections, andwhich has advanced beyond introduction during the 116th Congress. However, foreign policyimplications of such interference, or a discussion of offensive operations and tactics that theUnited States might or might not use against foreign adversaries, are otherwise beyond the scopeof this report.6Because of the still-developing and complex policy challenges surrounding campaign andelection security, other areas of law, policy, or practice might also be relevant but are notaddressed here. The report references other CRS products that contain additional discussion of4Similarly, the report does not address funds for aspects of election security other than securing election systems, suchas Intelligence Community efforts to identify sources of election disinformation.5 Other CRS products contain additional discussion. See, for example, CRS Report R45302, Federal Role in U.S.Campaigns and Elections: An Overview, by R. Sam Garrett; CRS Report RS20764, The Uniformed and OverseasCitizens Absentee Voting Act: Overview and Issues, by R. Sam Garrett (originally authored by Kevin J. Coleman); andCRS Report R45030, Federal Role in Voter Registration: The National Voter Registration Act of 1993 and SubsequentDevelopments, by Sarah J. Eckman.6 For additional discussion of foreign policy implications and key concepts, see CRS Report R45142, InformationWarfare: Issues for Congress, by Catherine A. Theohary; and CRS In Focus IF10771, Defense Primer: InformationOperations, by Catherine A. Theohary; CRS In Focus IF10694, Countering America’s Adversaries Through SanctionsAct, by Dianne E. Rennack, Kenneth Katzman, and Cory Welt; CRS In Focus IF10779, U.S. Sanctions on Russia: AnOverview, by Dianne E. Rennack and Cory Welt; CRS Report R45415, U.S. Sanctions on Russia, coordinated by CoryWelt; and CRS In Focus IF10694, Countering America’s Adversaries Through Sanctions Act, by Dianne E. Rennack,Kenneth Katzman, and Cory Welt.Congressional Research Service3

Campaign and Election Security Policy: Overview and Recent Developments for Congressseveral such topics. The report does not provide legal or constitutional analysis. It also does notattempt to catalog all alleged or established instances of campaign and election interference orsecurity concerns, or to independently evaluate allegations.Recent Legislative ActivityHighlights of recent legislative activity include the following. Additional discussion appearsthroughout the report. The 115th Congress (2017-2019) appropriated 380 million for FY2018 forimprovements to the administration of federal elections, including upgrades toelection technology and security.The 116th Congress (2019-2021) appropriated 425 million for FY2020 in theconsolidated appropriations bill (H.R. 1158; P.L. 116-93) enacted in December2019. The “Funding for States After the 2016 Election Cycle” section of thisreport contains additional detail.The 116th Congress enacted S. 1790 (P.L. 116-92), the FY2020 National DefenseAuthorization Act (NDAA), in December 2019. The legislation contains severalprovisions related to campaign and election security.Table 1 below lists bills that have passed at least one chamber. The Appendix in this reportbriefly summarizes 116th Congress legislation containing campaign and election securityprovisions that has advanced beyond introduction.Table 1. 116th Congress Legislation, Which Has Passed At Least One Chamber,Related to Campaign and Election SecuritySee the “Scope of the Report” section and the Appendix of this report for additional detail.Bill NumberShort TitleLatest Major ActionH.R. 1For the People Act of 2019Passed House (234-193),03/08/2019H.R. 753Global Electoral Exchange Act of 2019Passed House (voicevote), 05/20/2019H.R. 1158Consolidated Appropriations Act, 2020Became P.L. 116-93,12/20/2019H.R. 2500National Defense Authorization Act for FiscalYear 2020Passed House (220-197),07/12/2019H.R. 2722Securing America’s Federal Elections (SAFE) ActPassed House (225-184),06/27/2019H.R. 3351Financial Services and General GovernmentAppropriations Act, 2020Passed House (224-196),06/26/2019; see also H.R.1158H.R. 3494Damon Paul Nelson and Matthew Young PollardIntelligence Authorization Act for Fiscal Years2018, 2019, and 2020Passed House (397-31),07/17/2019H.R. 4617Stopping Harmful Interference in Elections for aLasting Democracy Act (SHIELD Act)Passed House (227-181),10/23/2019Congressional Research Service4

Campaign and Election Security Policy: Overview and Recent Developments for CongressBill NumberShort TitleLatest Major ActionS. 1321Defending the Integrity of Voting Systems ActPassed Senate (unanimousconsent), 07/17/2019S. 1328Defending Elections against Trolls from EnemyRegimes (DETER) ActPassed Senate (unanimousconsent), 06/03/2019S. 1790National Defense Authorization Act for FiscalYear 2020Became P.L. 116-92,12/20/2019S. 1846State and Local Government Cybersecurity Actof 2019Passed Senate (unanimousconsent), 11/21/2019Source: CRS analysis of bill texts.Notes: Bills in the table specifically reference campaign and election and security. Other legislation not includedin the table could be relevant for campaign or election security once implemented or in practice. See the “Scopeof the Report” section of this report and the Appendix for additional detail. The table excludes resolutions(e.g., proposed constitutional amendments) and routine appropriations bills that propose funding for agenciessuch as the Election Assistance Commission or Federal Election Commission, unless the appropriations bill alsocontains additional provisions specifically addressing campaign and election security. In addition, during the 116th Congress, committees in both chambers have heldhearings on these and related campaign and election security topics.7 TheCommittee on House Administration and Senate Committee on Rules andAdministration exercise primary jurisdiction over federal elections. Several othercommittees oversee related areas, such as intelligence or voting rights issues.Another CRS product contains additional discussion of committee roles infederal campaigns and elections generally.8Development of Federal Role in Campaign andElection SecurityForeign interference is only the highest-profile and latest campaign and election security policychallenge.9 Physical security, to protect voters, ballots, and vote counts, has been an ongoing7See, for example, U.S. Congress, Senate Select Committee on Intelligence, Russian Active Measures Campaigns andInterference in the 2016 U.S. Election, Volume 1: Russian Efforts Against Election Infrastructure with AdditionalViews, 116th Cong., 1st sess., July 25, 2019, at files/documents/Report Volume1.pdf; U.S. Congress, Senate Select Committee on Intelligence, Russian Active Measures Campaignsand Interference in the 2016 U.S. Election, Volume 2: Russia’s Use of Social Media with Additional Views, 116thCong., 1st sess., October 8, 2019, at files/documents/Report Volume2.pdf; U.S. Congress, Senate Committee on Rules and Administration, Oversight of the U.S. ElectionAssistance Commission, 116th Cong., 1st sess., May 15, 2019, S. Hrg. 116-74 (Washington: GPO, 2019); U.S. Congress,House Committee on Homeland Security, Defending Our Democracy: Building Partnerships to Protect America’sElections, 116th Cong., 1st sess., February 13, 2019, Serial No. 116-1 (Washington: GPO, 2019); and U.S. Congress,House Committee on Oversight and Reform, Subcommittee on National Security, Securing U.S. Election Infrastructureand Protecting Political Discourse, 116th Cong., 1st sess., February 13, 2019, Serial no. 116-28 (Washington: GPO,2019). See also, for example, discussion and witness testimony presented during an October 22, 2019, House JudiciaryCommittee oversight hearing, “Securing America’s Elections Part II: Oversight of Government Agencies.” As of thiswriting, the hearing record does not appear to have been published. Video and written materials are available on thecommittee website, nment-agencies.8 See CRS Report R45302, Federal Role in U.S. Campaigns and Elections: An Overview, by R. Sam Garrett.9 According to the Office of the Director of National Intelligence (ODNI), foreign interference with U.S. elections fallsinto “five distinct categories.” Collectively, these include “cyber” or “covert” operations. “Cyber operations” targetCongressional Research Service5

Campaign and Election Security Policy: Overview and Recent Developments for Congressconcern. Specifically, in modern history, the federal government’s first role in securing electionswas primarily about access and voting rights.10 In 1965, Congress enacted the Voting Rights Act(VRA), which protects voters against race- or color-based discrimination in registration,redistricting, and voting.11 More explicitly related to security, the VRA prohibits intimidation,threats, or coercion in voting.12 Congress primarily tasked the U.S. Department of Justice (DOJ)with enforcing the statute and related criminal provisions. Federal law enforcement agencies,especially the Federal Bureau of Investigation (FBI), also support states and localities—whichretain primary responsibility for election administration in the United States—in investigatingelection crimes and providing physical security at the polls.The federal role in election administration expanded after the disputed 2000 presidential election.In response, Congress authorized federal funding for the states, the District of Columbia, andterritories13 to make improvements to the administration of federal elections. It also created theElection Assistance Commission (EAC) to administer those funds. Congress charged the agencywith overseeing a voluntary voting system testing and certification program, and providing statesand localities with voluntary election administration guidance, research, and best practices. Thesedevelopments notwithstanding, securing campaigns and elections historically was not a majorpolicy topic at the federal level, as most security matters were reserved for state- or local-levelpolicy.The policy environment changed dramatically during the 2016 election cycle, when media reportsand subsequent congressional14 and federal-agency15 investigations documented Russianelection infrastructure, campaigns, parties, or public officials. “Covert” operations include efforts to “assist or harm”groups such as campaigns, to influence public opinion or sow social or political division, or covertly influencepolicymakers or the public. See Office of the Director of National Intelligence, National Counterintelligence andSecurity Center, Foreign Threats to U.S. Elections: Election Security Information Needs, at https://www.dni.gov/files/ODNI/documents/DNI NCSC Elections Brochure Final.pdf. The publication is not dated or paginated. The quotedmaterial appears on the first full page of text. For additional discussion on influence operations generally, see CRSReport RL31787, Information Operations, Cyberwarfare, and Cybersecurity: Capabilities and Related Policy Issues,by Catherine A. Theohary.10 For an overview of the issues discussed in this paragraph, see CRS Report R45302, Federal

Federal statutes—such as the Help America Vote Act (HAVA); Federal Election Campaign Act (FECA); and the Voting Rights Act (VRA)—all contain provisions designed to make campaign finance, elections, or voting more secure. Several federal agencies are directly or indirectly involved in campaign and election security.

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