March 2, 2020

Eric Williamson

Editor’s Note: In honor of Super Tuesday, we bring you an advance look at the spring issue of UVA Lawyer, featuring professors and alumni giving some of their current thoughts on the state of our democracy. Trevor Potter ’82 is among those featured. Potter will also be the keynote speaker Thursday at the Ele(Q)t Project symposium.

It has been eight years since the University of Virginia School of Law’s alumni magazine, UVA Lawyer, caught up with Trevor Potter ’82, the former chairman of the Federal Election Commission who founded, and serves as president of, the Campaign Legal Center in Washington, D.C.

Back then, Potter was fresh off his appearances on “The Colbert Report,” where he famously helped host Stephen Colbert demonstrate to a mass audience the dangers to democracy posed by super PACs — those political action committees that, since the 2010 ruling by the U.S. Supreme Court in Citizens United v. Federal Election Commission, can raise unlimited amounts of money from corporations, unions and individuals. That is, just so long as they don’t coordinate directly with candidates or their campaigns.

Potter and Colbert formed the super PAC “Americans for a Better Tomorrow, Tomorrow,” which used real dollars to show how shadowy actors can, and do, circumvent campaign finance laws.

Since then, the challenges in election oversight have multiplied. From Russian interference in the 2016 election and questions over the role social media played, to more recently, concerns over whether President Donald Trump invited Ukraine to interfere in the 2020 presidential race, the electorate is left to wonder what will happen next.

Regarding Ukraine, the watchdog efforts of the Campaign Legal Center led to the indictment of four associates of Rudy Giuliani, the president’s personal attorney, on campaign finance law violations. The charges involved large contributions of apparently foreign-sourced money to a super PAC tied to the Trump campaign.

Potter is a Republican who served as general counsel to John McCain’s two presidential bids, but he puts his political hat in a box for the sake of the nonpartisan, nonprofit organization he runs. The center “holds candidates and government officials accountable regardless of political affiliation,” according to its website.

In the midst of the confusion generated by the Iowa caucuses in February, we asked Potter about his concerns for the next election.

What are your thoughts on the voting app snafu at the Democrats’ Iowa caucus, and voting technology in general?

There were a number of warnings going into Iowa that relying on untested apps and new systems could have this result.

There is a real risk that voters won’t trust the system because of technology problems. We at the Campaign Legal Center, for instance, have focused on the need for paper trails of ballots that are auditable. If there is a technological problem, which occurs all the time in modern life, never mind the possibility of malign outside actors, it is really important that there be a way for humans to verify the results. We also favor automatic random audits of election results. I think those are all important. But caucuses are run by political parties, not by government entities, so they are not governed by such rules, which puts the onus on them to get it right.

Can voting integrity be ensured with online systems?

There’s a lot of pressure from both citizens and the news media to speed up the process, to be able to do things easier by doing things online. And that has in it the inherent possibility that there will be problems — hacking, and human error in the programming side.

There has been, for a while, pressure to vote online on the theory that if you can bank online, and that’s secure, why can’t you vote that way. I am very skeptical of that. Everything online seems more vulnerable than we thought it was 10 years ago.

Commercial transactions online are, by their very nature, not confidential. The whole point is your bank can see what you’ve done; you can see what you’ve done; everyone can review what you’ve done. Voting is quite different because it is supposed to be confidential. That’s radically different from buying something on Amazon or moving money in a bank.

Does our decentralized voting system help or hurt matters?

The dispersed and decentralized nature of our system is, on one hand, an advantage, because it means a malign actor can’t hack into the central national election database, because there isn’t one. But on the other hand, it makes us more vulnerable, because a malign actor could affect an election by just hacking into one city in one state and potentially swing an election.

If a major city goes down, it will affect the vote in that state, and that state may well affect the vote in the electoral college.

There are approximately 10,000 jurisdictions that run elections. So when something goes wrong in Broward County, Florida [which was involved in the 2000 election recount], it can have a national effect. But the organization of the election process there is under the control of local authorities.

Now, of course, there is a provision in the Constitution that allows the federal government to supersede state election rules and processes, but Congress is loath to do that. It takes a real problem for the federal government to intervene.

What has changed since the voting issues in the 2000 presidential election?

After Florida in 2000, the federal decision was that states needed to update their machinery. I think, not surprisingly, states were happy to take the federal money. They were unhappy to have to meet the federal standards. They preferred to make their own decisions. Over time, the Election Assistance Commission, which was created by Congress after the Florida recount, has been hobbled and not really done what it was intended to do in terms of establishing nationwide minimum standards for election machinery.

So when we talk about election technology issues, foreign interference, vulnerability, on the technical side of running elections, we deal with a couple of realities. One is that you have to work with the states, you have to work with the localities. They don’t have funding for a lot of this. Elections occur once a year in most places, if that often — and roads need repair and garbage collected all year. Though no one wants elections to go badly, voting and elections are also usually not the top budget priority for any governmental entity.

What has changed since the last election? Have we made progress to prevent hacking?

There has been progress, it’s just been within a context that makes progress difficult, slow and incomplete.

I think we have the unfortunate political reality that officials in the current administration have been very leery of talking about foreign interference because the president himself feels the discussion of foreign intervention in the previous elections is implicitly, if not explicitly, an attack on the legitimacy of his 2016 victory.

The House has repeatedly voted for extra funding for election security, and in the Senate, [Majority Leader] Mitch McConnell has refused to consider most of those. He finally, after an enormous amount of pressure, allowed a couple hundred million in extra funding for new machinery, but Republicans just blocked the Senate from considering several other important security proposals.

Voting officials, on their own, are addressing some of the machine issues. I think every state is now more focused on this than they were in 2016. And there is a much higher level of information and expertise in cybersecurity for local officials from federal agencies.

What about social media? Is the spread of misinformation from anonymous actors going to continue to be a major factor?

All the signs are that it will be worse in 2020. One of the things we saw last fall in the Kentucky governor’s election [won by Andy Beshear ’03] was rapidly spreading social media claims that there was illegal/fraudulent activity in the election. There was a tweet from a self-described “Democratic election official” that he was tearing up Republican absentee ballots. That went viral. The governor [Matt Bevin] used that as evidence that he hadn’t actually lost, that there had been fraud in the election. He refused to concede. Two days later, it became clear that it was all false, that the tweet was from a fake account and that the retweets were largely from foreign bots. I don’t know that we know who was behind all that, but it was a clear attempt to cast doubt on the election results.

It is exactly the sort of thing we can expect countries or actors who dislike the U.S. to do. Not necessarily to affect the election results, but to create chaos in our democracy. Having seen that model in Kentucky, the question is: How do we prepare for it elsewhere? The answer is, we can be aware that it’s a possibility, but that it takes a couple days to figure out if the account is a fake account. Then, of course, there is the world of misinformation and disinformation and deep fakes, promoted by partisans on both sides.

Does the center have any initiatives on that front?

We’re part of coalition with social media experts in New York who have put out a statement on things we think social media companies can do voluntarily now. Chris Hughes, who is one of the co-founders of Facebook, led that group. It’s really too late for legislation this year. It’s not realistic to think that Congress is going to act on this between now and next fall. What we have left is voluntary actions by responsible social media companies.

Is greater transparency part of the solution?

That’s very much part of the solution. What we’re saying is, there ought to be ways for people looking at ads to figure out who has paid for them. There ought to be a database they can go to of advertising that has been run, with information on who is funding it, so they can put it in context.

On the topic of transparency, has there been any progress with campaign finance?

I think we continue to build the record and make the case that there are ongoing problems with how our elections are currently financed.

There is the danger of corruption, and the appearance of corruption, in huge contributions to groups closely aligned with, and coordinating with, a candidate. The Supreme Court decision in Citizens United and in other cases presumes that this “outside” spending is completely independent of parties and candidates, because otherwise it would be strictly limited in amount as a contribution to a candidate.

What we need is disclosure of what’s going on, and enforcement of the rule so that only truly independent spending has the right to unlimited funding. And we need alternative ways for candidates to raise money and finance elections, so that they can run without being wealthy or relying on wealthy sponsors.

Finally, the center recently found itself in the news related to the Ukraine scandal. Can you explain how that played out?

We probably will bring 10-12 cases that we research to the FEC over the course of a year. The FEC has unfortunately been effectively dysfunctional for some time, as it has been deadlocked on partisan lines. So part of our role at Campaign Legal Center is to file complaints and give the FEC the opportunity to act. If it doesn’t, we have the statutory right to take those complaints to court and get a judge to rule that the evidence is such that the commission should have acted, and require them to do so.

In this case, we didn’t know that these were people [Lev Parnas and Igor Fruman] who were meeting with Trump personally or working with Giuliani to get the U.S. ambassador to the Ukraine recalled, or any of that. What we knew was, a very large contribution had come in to a federal super PAC. When we see large contributions from sources we’ve never heard of, we usually take a closer look — which in this case revealed that the reported source was a new corporation created only weeks before the contribution, with essentially no public record and no sign that it had any actual business activity.

The red flag then goes up that this is likely to be what is known as “a contribution in the name of another.” Which is the fancy way to say this is a conduit, this is a shell entity, that the money came from somewhere or someone else. That’s relevant because, under federal law, corporations are required to report the true source of the funds when they make a contribution, and super PACs are required to report that source on their FEC reports.

Here, we had the good luck that our complaint was read by some creditors of the Ukrainians who contacted us and said, “Wait a minute, they just swore in court they don’t have any money! You’re saying they just gave hundreds of thousands of dollars to a federal political committee!”

From that, they got the judge to order the disclosure of the money trail of the contributions, which turned out to involve wire transfers, and learned it wasn’t even their money. It had come from somewhere else. So then we’re on the track of money laundering.

The U.S. attorney’s office obviously read about it on our website and decided the false statements and apparent foreign funding of this contribution to the Trump super PAC was worth their pursuing. However, the FEC has still not resolved our original complaint.

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