Election Interference: The Real Harm and The Only Solution
Although politicians and intelligence analysts have criticized Russian interference in the 2016 and 2018 elections, international lawyers seem to be at a loss for how to understand the particular harm posed by this interference. In addition to the hacking of email accounts and disclosure of private information, the most salient aspect of the interference was the use of social media platforms, including Twitter and Facebook, to sow division and heighten nativist tendencies within the electorate. Strictly speaking, the goal of the 2016 interference was to delegitimize a potential Clinton presidency or to help elect Donald Trump as president. But far more important was the method used to accomplish these goals: the impersonation of American citizens during participation in the political process. This latter development points to the real harm of election interference, which has less to do with sovereignty and more to do with the collective right of self- determination. Foreign interference is a violation of the membership rules for political decision-making, i.e., the idea that only members of a polity should participate in elections—not only with regard to voting but also with regard to financial contributions and other forms of electoral participation. Outsiders are free to express their opinions but covertly representing themselves as insiders constitutes a violation of these political norms, which are constitutive of the notion of self- determination, just as much as covertly funneling foreign money to one candidate. The only solution to this form of election interference is transparency, i.e., to expose such interventions for what they are: attempts by foreigners to make political statements while pretending to be Americans. This article ends by cataloguing the mistakes of the Obama Administration in failing to expose this interference in real time—which is the only way to nullify its insidious impact. Ex post investigations, prosecutions, and counter-measures designed to deter future misbehavior are all insufficient to nullify the impact of electoral interference. However, recent efforts by the Justice Department and the FBI, including a new policy codified in the US Attorneys Manual, and contemporaneous indictments of Russians for interference in the 2018 election, suggest that some government actors finally understand that transparency is the only solution to election interference.