For the People Act of 2021 (H.R. 1; 117th Congress)/Division B/Title IV/Subtitle E

by John Sarbanes

Part 1 - DETERRENCE UNDER FEDERAL ELECTION CAMPAIGN ACT OF 1971.

SEC. 4401. RESTRICTIONS ON EXCHANGE OF CAMPAIGN INFORMATION BETWEEN CANDIDATES AND FOREIGN POWERS.

Section 319 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30121), as amended by section 4101(b) and section 4209, is further amended by adding at the end the following new subsection:

“(e) Restrictions On Exchange Of Information Between Candidates And Foreign Powers.—

“(1) TREATMENT OF OFFER TO SHARE NONPUBLIC CAMPAIGN MATERIAL AS SOLICITATION OF CONTRIBUTION FROM FOREIGN NATIONAL.—If a candidate or an individual affiliated with the campaign of a candidate, or if a political committee or an individual affiliated with a political committee, provides or offers to provide nonpublic campaign material to a covered foreign national or to another person whom the candidate, committee, or individual knows or has reason to know will provide the material to a covered foreign national, the candidate, committee, or individual (as the case may be) shall be considered for purposes of this section to have solicited a contribution or donation described in subsection (a)(1)(A) from a foreign national.

“(2) DEFINITIONS.—In this subsection, the following definitions apply:

“(A) The term ‘candidate’ means an individual who seeks nomination for, or election to, any Federal, State, or local public office.

“(B) The term ‘covered foreign national’ has the meaning given such term in section 304(j)(3)(C).

“(C) The term ‘individual affiliated with a campaign’ means, with respect to a candidate, an employee of any organization legally authorized under Federal, State, or local law to support the candidate’s campaign for nomination for, or election to, any Federal, State, or local public office, as well as any independent contractor of such an organization and any individual who performs services on behalf of the organization, whether paid or unpaid.

“(D) The term ‘individual affiliated with a political committee’ means, with respect to a political committee, an employee of the committee as well as any independent contractor of the committee and any individual who performs services on behalf of the committee, whether paid or unpaid.

“(E) The term ‘nonpublic campaign material’ means, with respect to a candidate or a political committee, campaign material that is produced by the candidate or the committee or produced at the candidate or committee’s expense or request which is not distributed or made available to the general public or otherwise in the public domain, including polling and focus group data and opposition research, except that such term does not include material produced for purposes of consultations relating solely to the candidate’s or committee’s position on a legislative or policy matter.”.

SEC. 4402. CLARIFICATION OF STANDARD FOR DETERMINING EXISTENCE OF COORDINATION BETWEEN CAMPAIGNS AND OUTSIDE INTERESTS.

Section 315(a) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30116(a)) is amended by adding at the end the following new paragraph:

“(10) For purposes of paragraph (7), an expenditure or disbursement may be considered to have been made in cooperation, consultation, or concert with, or coordinated with, a person without regard to whether or not the cooperation, consultation, or coordination is carried out pursuant to agreement or formal collaboration.”.

SEC. 4403. PROHIBITION ON PROVISION OF SUBSTANTIAL ASSISTANCE RELATING TO CONTRIBUTION OR DONATION BY FOREIGN NATIONALS.

Section 319 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30121), as amended by section 4101(a), section 4101(b), section 4209, and section 4401, is further amended—

(1) in subsection (a)—

(A) by striking “or” at the end of paragraph (2);

(B) by striking the period at the end of paragraph (3) and inserting “; or”; and

(C) by adding at the end the following:

“(4) a person to knowingly provide substantial assistance to another person in carrying out an activity described in paragraph (1), (2), or (3).”; and

(2) by adding at the end the following new subsections:

“(f) Knowingly Described.—

“(1) IN GENERAL.—For purposes of subsection (a)(4), the term ‘knowingly’ means actual knowledge, constructive knowledge, awareness of pertinent facts that would lead a reasonable person to conclude there is a substantial probability, or awareness of pertinent facts that would lead a reasonable person to conduct a reasonable inquiry to establish—

“(A) with respect to an activity described in subsection (a)(1), that the contribution, donation, expenditure, independent expenditure, or disbursement is from a foreign national;

“(B) with respect to an activity described in subsection (a)(2), that the contribution or donation solicited, accepted, or received is from a foreign national; and

“(C) with respect to an activity described in subsection (a)(3), that the person directing, dictating, controlling, or directly or indirectly participating in the decision making process is a foreign national.

“(2) PERTINENT FACTS.—For purposes of paragraph (1), pertinent facts include, but are not limited to, that the person making the contribution, donation, expenditure, independent expenditure, or disbursement, or that the person from whom the contribution or donation is solicited, accepted, or received, or that the person directing, dictating, controlling, or directly or indirectly participating in the decision making process—

“(A) uses a foreign passport or passport number for identification purposes;

“(B) provides a foreign address;

“(C) uses a check or other written instrument drawn on a foreign bank, or by a wire transfer from a foreign bank, in carrying out the activity; or

“(D) resides abroad.

“(g) Substantial Assistance Defined.—As used in this section, the term ‘substantial assistance’ means, with respect to an activity prohibited by paragraph (1), (2), or (3) of subsection (a), involvement with an intent to facilitate successful completion of the activity.”.

SEC. 4404. CLARIFICATION OF APPLICATION OF FOREIGN MONEY BAN.

(a) Clarification Of Treatment Of Provision Of Certain Information As Contribution Or Donation Of A Thing Of Value.—Section 319 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30121), as amended by section 4101(a), section 4101(b), section 4209, section 4401, and section 4403, is amended by adding at the end the following new subsection:

“(h) Clarification Of Treatment Of Provision Of Certain Information As Contribution Or Donation Of A Thing Of Value.—For purposes of this section, a ‘contribution or donation of money or other thing of value’ includes the provision of opposition research, polling, or other non-public information relating to a candidate for election for a Federal, State, or local office for the purpose of influencing the election, regardless of whether such research, polling, or information has monetary value, except that nothing in this subsection shall be construed to treat the mere provision of an opinion about a candidate as a thing of value for purposes of this section.”.

(b) Clarification Of Application Of Foreign Money Ban To All Contributions And Donations Of Things Of Value And To All Solicitations Of Contributions And Donations Of Things Of Value.—Section 319(a) of such Act (52 U.S.C. 30121(a)) is amended—

(1) in paragraph (1)(A), by striking “promise to make a contribution or donation” and inserting “promise to make such a contribution or donation”;

(2) in paragraph (1)(B), by striking “donation” and inserting “donation of money or other thing of value, or to make an express or implied promise to make such a contribution or donation,”; and

(3) by amending paragraph (2) to read as follows:

“(2) a person to solicit, accept, or receive (directly or indirectly) a contribution, donation, or disbursement described in paragraph (1), or to solicit, accept, or receive (directly or indirectly) an express or implied promise to make such a contribution or donation, from a foreign national.”.

Part 2 - NOTIFYING STATES OF DISINFORMATION CAMPAIGNS BY FOREIGN NATIONALS.

SEC. 4411. NOTIFYING STATES OF DISINFORMATION CAMPAIGNS BY FOREIGN NATIONALS.

(a) Requiring Disclosure.—If the Federal Election Commission makes a determination that a foreign national has initiated or has attempted to initiate a disinformation campaign targeted at an election for public office held in a State, the Commission shall notify the State involved of the determination not later than 30 days after making the determination.

(b) Definitions.—In this section the term “foreign national” has the meaning given such term in section 319(b) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30121(b)).

Part 3 - PROHIBITING USE OF DEEPFAKES IN ELECTION CAMPAIGNS.

SEC. 4421. PROHIBITION ON DISTRIBUTION OF MATERIALLY DECEPTIVE AUDIO OR VISUAL MEDIA PRIOR TO ELECTION.

(a) In General.—Title III of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.) is amended by adding at the end the following new section:

“SEC. 325. PROHIBITION ON DISTRIBUTION OF MATERIALLY DECEPTIVE MEDIA PRIOR TO ELECTION.

“(a) In General.—Except as provided in subsections (b) and (c), a person, political committee, or other entity shall not, within 60 days of an election for Federal office at which a candidate for elective office will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

“(b) Exception.—

“(1) REQUIRED LANGUAGE.—The prohibition in subsection (a) does not apply if the audio or visual media includes—

“(A) a disclosure stating: “This _____ has been manipulated.”; and

“(B) filled in the blank in the disclosure under subparagraph (A), the term ‘image’, ‘video’, or ‘audio’, as most accurately describes the media.

“(2) VISUAL MEDIA.—For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

“(3) AUDIO-ONLY MEDIA.—If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than 2 minutes in length, interspersed within the audio at intervals of not greater than 2 minutes each.

“(c) Inapplicability To Certain Entities.—This section does not apply to the following:

“(1) A radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media.

“(2) A radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media.

“(3) An internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

“(4) Materially deceptive audio or visual media that constitutes satire or parody.

“(d) Civil Action.—

“(1) INJUNCTIVE OR OTHER EQUITABLE RELIEF.—A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall be entitled to precedence in accordance with the Federal Rules of Civil Procedure.

“(2) DAMAGES.—A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive audio or visual media. The court may also award a prevailing party reasonable attorney’s fees and costs. This paragraph shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

“(3) BURDEN OF PROOF.—In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

“(e) Rule Of Construction.—This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under section 230 of title 47, United States Code.

“(f) Materially Deceptive Audio Or Visual Media Defined.—In this section, the term ‘materially deceptive audio or visual media’ means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that both of the following conditions are met:

“(1) The image or audio or video recording would falsely appear to a reasonable person to be authentic.

“(2) The image or audio or video recording would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.”.

(b) Criminal Penalties.—Section 309(d)(1) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30109(d)(1)), as amended by section 4004, is further amended by adding at the end the following new subparagraph:

“(G) Any person who knowingly and willfully commits a violation of section 325 shall be fined not more than $100,000, imprisoned not more than 5 years, or both.”.

(c) Effect On Defamation Action.—For purposes of an action for defamation, a violation of section 325 of the Federal Election Campaign Act of 1971, as added by subsection (a), shall constitute defamation per se.

Part 4 - ASSESSMENT OF EXEMPTION OF REGISTRATION REQUIREMENTS UNDER FARA FOR REGISTERED LOBBYISTS.

SEC. 4431. ASSESSMENT OF EXEMPTION OF REGISTRATION REQUIREMENTS UNDER FARA FOR REGISTERED LOBBYISTS.

Not later than 90 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct and submit to Congress an assessment of the implications of the exemption provided under the Foreign Agents Registration Act of 1938, as amended (22 U.S.C. 611 et seq.) for agents of foreign principals who are also registered lobbyists under the Lobbying Disclosure Act of 1995 (2 U.S.C. 1601 et seq.), and shall include in the assessment an analysis of the extent to which revisions in such Acts might mitigate the risk of foreign government money influencing elections or political processes in the United States.