Campaign and Election Security Policy: Brief Introduction

Campaign and Election Security Policy: Brief Introduction

July 9, 2019
Campaign and Election Security Policy: Brief Introduction
Introduction
degree, federal law, regulate how voters cast ballots and
Securing U.S. elections is a complex policy challenge that
who may do so.
involves multiple concepts, statutes, and agencies.
Federalism principles embodied in the U.S. Constitution;
Issues: Access, Integrity, and Security
the distinction between government agencies and
“Election security” can mean different things to different
nongovernmental political entities; and the unique needs of
people and in different contexts. Broadly speaking, the
election administrators, voters, and political campaigns and
concept can involve at least three policy goals.
related groups all affect policy choices. This CRS In Focus
introduces selected issues and policy matters that frame the
 Access—ensuring that eligible individuals can register
debate.
to vote, receive ballots, and vote privately
Recent Congressional Activity
 Integrity—ensuring that election administration and
During the 116th Congress, at least 40 bills related to
voting are perceived as legitimate across the political
security for campaigns and elections have been introduced.
spectrum, with accurate, fair and transparent
Provisions in these bills range from altering current
participation and results
practices or policies, such as changing disclaimers and
disclosures for online political advertising, or federal
 Security—ensuring that campaigns and elections are
funding to support state election administration; to
free from criminal or other malicious activity, foreign or
establishing new ones, such as notification requirements for
domestic disinformation or cyber-interference
election interference. In the 115th Congress, the FY2018
omnibus appropriations law (P.L. 115-141) provided states
Different audiences sometimes prioritize these policy
$380 million in election-security funding. The 116th
goals—which are not necessarily mutually exclusive—
Congress is considering additional funding. Oversight
differently. For example, what one observer views as a
hearings in both chambers have addressed various security
reasonable provision to safeguard elections, such as a voter-
matters.
identification requirement, another might perceive as
deliberate disenfranchisement. In addition, election roles
On March 8, 2019, the House passed (234-193) H.R. 1, the
and goals can affect security choices. A local election
For the People Act, sponsored by Representative Sarbanes.
administrator, for example, must decide how to balance
The bill contains multiple provisions affecting campaign
access, integrity, and security with a limited budget and
finance, elections, voting, and ethics and lobbying.
deadlines set in law. A campaign manager likely is
Security-related provisions would codify a Department of
concerned with all three goals, but is responsible primarily
Homeland Security (DHS) designation of election
for securing the campaign operation and turning-out
infrastructure as “critical”; authorize federal funding to
supporters—also with a limited budget and, likely, limited
assist states in upgrading their election equipment or
in-house security expertise.
otherwise enhancing security, including by implementing
risk-limiting audits; require paper ballots in federal
Policy: Federal Statutes and Agencies
elections; require various election-threat reports among
The U.S. Constitution and federal statute regulate the
federal and state governments; and require developing a
division of governmental responsibility for election
national strategy to safeguard democratic institutions.
security, although no statute is devoted specifically to the
Several similar provisions appear in H.R. 2722, the
topic. Most broadly, the Constitution’s Elections Clause
Securing America’s Federal Elections (SAFE) Act. The
assigns states with setting the “Times, Places and Manner”
House passed (225-184) H.R. 2722 on June 27, 2019.
for House and Senate elections, and also permits Congress
to “at any time…make or alter such Regulations” (Art. I,
Issues: Campaigns, Elections, and Voting
§4).
Campaigns, elections, and voting are related but separate
concepts. They are defined and regulated differently, and
Historically, the federal government has played little role in
each raises unique and even potentially competing security
election security, deferring to states, which are responsible
concerns. Campaigns are about persuading voters in an
for most U.S. election administration. Congress first
effort to win elections. Voters express their campaign
enacted legislation affecting and funding election security
preferences by casting ballots in elections. Except for
in the 2002 Help America Vote Act (HAVA; 52 U.S.C.
campaign finance policy, U.S. campaigns are subject to
§§20901-21145). Federal law is relatively silent on
relatively little regulation. Elections in the United States are
campaign security, although some Title 18 criminal
more highly regulated and primarily a state-level
provisions apply, as do some Federal Election Campaign
responsibility. Provisions in state law and, to a lesser
Act (FECA; 52 U.S.C. §§30101-30146) campaign finance
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link to page 2 Campaign and Election Security Policy: Brief Introduction
provisions. The Voting Rights Act (VRA; 52 U.S.C.
Source: Adapted from CRS Report R45302, Federal Role in U.S.
§§10101-10701) is the primary federal statute covering
Campaigns and Elections: An Overview, by R. Sam Garrett.
access.
Two major categories of federal election-security assistance
Selected Agency Roles
are available to states, territories, and localities that
No single federal agency has responsibility specifically for
administer elections. First, federal agencies such as DHS
providing election or campaign security. Only two federal
and the Federal Bureau of Investigation (FBI) offer states
agencies are devoted entirely to campaigns and elections.
assistance, such as consultations and investigations, on
The Election Assistance Commission (EAC) disburses
election security issues. A 2017 DHS “critical
congressionally appropriated federal funding and
infrastructure” designation for U.S. election infrastructure
coordinates information-sharing about elections practices
permits the agency to prioritize support for election
(such as voting-system guidelines, which affect security)
jurisdictions. This includes information-sharing on threats;
among the states. The Federal Election Commission (FEC)
monitoring election systems; conducting vulnerability
is responsible for administration and civil enforcement of
assessments; and assistance identifying or responding to
FECA.
threats. Second, Congress periodically has authorized
appropriations under HAVA, and appropriated funds
Other departments and agencies—such as component
(typically in omnibus or Financial Services and General
organizations comprising the Intelligence Community (IC,
Government [FSGG] appropriations legislation) to assist
e.g., the Central Intelligence Agency [CIA] and National
states to upgrade voting equipment and strengthen election
Security Agency [NSA])—primarily with responsibilities
security.
for other areas of public policy also support campaign or
election security in specific cases. Table 1 provides a brief
Unique Challenges for Campaigns
overview of selected agency roles in campaign and election
Most campaigns are short-lived with transient staffs. This is
security.
especially true for candidate committees, most of which
have limited budgets, have small professional staffs, and
Table 1. Selected Agency Roles in Election Security
depend heavily on volunteers. All these factors can weaken
security. Recent FEC advisory opinions have granted
Agency
Brief Security Role
corporations, including Microsoft, permission to provide
Department of
National Institute of Standards and
reduced-rate cybersecurity services to political committees
Commerce
Technology (NIST) advises
in specific circumstances. Debate remains about how to
Election Assistance Commission
balance protecting campaigns from unlawful interference
(EAC) on technical and scientific
with upholding the FECA ban on corporate contributions.
matters
For additional discussion, see, for example, CRS Report
Department of Defense
Provides cybersecurity and
R45302, Federal Role in U.S. Campaigns and Elections:
intelligence in some cases; Federal
An Overview, by R. Sam Garrett; CRS Report R41542, The
Voting Assistance Program
State of Campaign Finance Policy: Recent Developments
director included in EAC Board of
and Issues for Congress, by R. Sam Garrett; CRS Report
Advisors
R45320, Campaign Finance Law: An Analysis of Key
Department of Homeland
Assists states on cybersecurity;
Issues, Recent Developments, and Constitutional
Considerations for Legislation, by L. Paige Whitaker; CRS
Security
Sector-Specific Agency for
Elections Infrastructure Subsector;
Report R45770, The U.S. Election Assistance Commission:
Secret Service protects major
Overview and Selected Issues for Congress, by Karen L.
Shanton; CRS In Focus IF10677, The Designation of
presidential candidates
Election Systems as Critical Infrastructure, by Eric A.
Department of Justice
Enforces criminal law and civil
Fischer; CRS In Focus IF10925, State Election Reform
aspects of some elections statutes;
Payments: FY2018 Appropriations, by Karen L. Shanton;
DOJ included in EAC Board of
CRS In Focus IF10697, Foreign Money and U.S. Campaign
Advisors; Federal Bureau of
Finance Policy, by R. Sam Garrett; CRS In Focus IF10683,
Investigation investigates election
DHS’s Cybersecurity Mission—An Overview, by Chris
crimes and participates in
Jaikaran; and CRS Report R45142, Information Warfare:
Intelligence Community
Issues for Congress, by Catherine A. Theohary.
Election Assistance
Distributes HAVA funds and
Commission
coordinates certain election
R. Sam Garrett, Specialist in American National
information with states
Government
Federal Election
Administers and enforces civil
IF11265
Commission
campaign finance law
Intelligence Community
Assesses foreign efforts to
influence U.S. campaigns and
elections

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Campaign and Election Security Policy: Brief Introduction

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