Foreign Political Help: Constitutional Or Not?

The question of whether soliciting foreign help in a political campaign is constitutional has been a highly debated topic, especially in the context of recent US elections. Federal law and the Federal Election Campaign Act prohibit individuals, organizations, and foreign nationals from soliciting, accepting, or making contributions or donations in connection with any US election. This includes both direct and indirect financial support, with specific provisions for various entities such as partnerships, LLCs, and unincorporated tribal entities. However, loopholes exist, such as Social Welfare Organizations (SWOs) being exempt from disclosing their donors, allowing for indirect foreign influence. The consequences of violating these laws can range from civil fines to criminal prosecution, with the severity depending on the specific circumstances and the intent of those involved. This issue has gained prominence due to allegations against former US President Donald Trump, who was accused of soliciting foreign interference in US elections, particularly in his communications with Ukrainian President Volodymyr Zelenskyy.

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Foreign nationals and governments cannot contribute money directly to US political campaigns

Foreign nationals and governments are prohibited from contributing money directly to US political campaigns. This is enforced by the Federal Election Campaign Act, which makes it illegal for foreign nationals to contribute to any American election, be it federal, state, or local. The term "foreign national" refers to any individual who is not a US citizen or permanent resident. The Federal Election Commission (FEC) is responsible for enforcing this statute and typically does so by imposing civil fines. However, criminal liability is also possible, and the FEC can refer cases to the Department of Justice (DOJ) for criminal prosecution.

Despite this prohibition, there is a significant loophole. Federal law exempts Social Welfare Organizations (SWOs), such as the NRA and AARP, from disclosing their donors as long as at least half of their activities are non-political. This allows SWOs to accept donations from foreign sources and then donate to political organizations like Super PACs. While the Super PAC must disclose the SWO as a donor, the original foreign donor remains anonymous. However, foreign nationals violate the law if they donate to an SWO and specify that the donation is for a particular candidate's campaign.

The FBI has also recognized the threat of foreign influence operations, which are not a new phenomenon. The interconnectedness of the modern world and the anonymity provided by the internet have amplified this threat. In 2017, the FBI established the Foreign Influence Task Force (FITF) to identify and counteract these operations. This task force includes representatives from the Counterintelligence, Cyber, Criminal, and Counterterrorism Divisions, and it coordinates with other FBI divisions and international partners as needed.

The 2024 US elections have already been targeted by foreign and domestic entities seeking to spread disinformation and create discord. Voters are encouraged to exercise caution and common sense when evaluating information from partisan or foreign sources.

US federal law prohibits a person from soliciting, accepting or receiving a contribution or donation of money or other thing of value from a foreign national

US federal law prohibits any person from soliciting, accepting or receiving a contribution or donation of money or other things of value from a foreign national. This law applies to any federal, state, or local election.

The Federal Election Campaign Act (FECA) makes it illegal for a foreign national to contribute to a candidate's campaign in any American election. A foreign national is defined as any person who is not a US citizen or a lawful permanent resident. This includes foreign individuals, foreign corporations, and foreign governments. The FECA is enforced by the Federal Election Commission (FEC), which can impose civil fines or refer cases to the Department of Justice (DOJ) for criminal prosecution.

The FEC has issued advisory opinions that provide guidance on how to interpret and apply the law. For example, in one case, the FEC determined that a foreign national could attend and speak at campaign events for a federal candidate and even solicit contributions for the campaign, as long as they did not participate in any decision-making processes. In another case, the FEC concluded that a political action committee (PAC) could accept assistance from a foreign national in developing intellectual property, such as trademarks and website design, as this fell under the volunteer exemption.

Despite these laws and regulations, there are still loopholes that allow foreign influence in US elections. One significant loophole involves Social Welfare Organizations (SWOs), which are exempt from disclosing their donors as long as at least half of their activities are non-political. As a result, foreign nationals can donate to an SWO, which can then donate to a political Super PAC without disclosing the original source of the funds, a practice known as "dark money." While foreign nationals are prohibited from earmarking donations to SWOs for specific candidates, the anonymous nature of these contributions makes it difficult to trace the source of the funds.

The Federal Election Commission (FEC) enforces this statute by imposing civil fines, but criminal liability is also possible

The Federal Election Campaign Act makes it illegal for a foreign national to contribute to a candidate's campaign in any American election – federal, state, or local. The Federal Election Commission (FEC) enforces this statute by imposing civil fines on people who violate the law. However, criminal liability is also a possibility.

The FEC has exclusive jurisdiction over the civil enforcement of the federal campaign finance law. The Administrative Fine Program assesses civil monetary penalties for late or non-filed reports. Fines are established by a pre-existing formula. Most reports that committees file are covered under the Administrative Fine Program. This includes semi-annual, quarterly, monthly, pre-election, 30-day post-general, and special election reports, as well as 48-hour notices. If the FEC finds “reason to believe” that a committee failed to file on time, it will notify the committee in writing of the finding and the penalty amount. Committees then have 40 days to either pay the fine or submit a written challenge.

The FEC can also refer criminal cases to the Department of Justice (DOJ) for prosecution. For example, if a person knowingly and willingly accepts foreign contributions, the FEC can refer the case to the DOJ for criminal prosecution. However, the DOJ can also prosecute these cases on its own without a referral from the FEC.

It is important to note that there is a significant loophole in the law. Federal law exempts organizations known as Social Welfare Organizations (SWOs), like the NRA and the AARP, from disclosing their donors as long as at least half of the SWO's activities are non-political. As a result, SWOs could accept donations from foreign nationals and governments and then donate to another organization, such as a political Super PAC. While the Super PAC would have to disclose the SWO as a donor, the SWO's foreign donors would remain undisclosed.

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One loophole exists: Federal law exempts Social Welfare Organisations (SWOs) from disclosing their donors

The Federal Election Campaign Act makes it illegal for foreign nationals to contribute to a candidate's campaign in any American election – federal, state, or local. Similarly, American candidates are prohibited from receiving, soliciting, or accepting foreign contributions. In this context, a foreign national is any person who is not a US citizen or a permanent resident.

Despite this, one significant loophole exists: Federal law exempts Social Welfare Organisations (SWOs) from disclosing their donors, so long as at least half of the SWO's activities are non-political. This means that SWOs can accept donations from foreign nationals and governments and then donate to another organisation, such as a political Super PAC. The Super PAC would only need to disclose the SWO as a donor, not the SWO's foreign donors.

However, foreign nationals violate the law if they donate money to an SWO and earmark the donation for a specific candidate. This type of "dark money" is hard to trace due to the lenient disclosure laws applicable to SWOs.

In 2021, the US Treasury Department announced that certain nonprofits, including trade associations and 501(c)(4) social welfare organisations, would no longer be required to disclose the names and addresses of their donors on the annual "Form 990" filed with the Internal Revenue Service. While this change does not affect 501(c)(3) charities or 527 political organisations, it represents a significant shift in donor transparency for certain groups.

Despite this change, states are finding innovative ways to obtain donor information from nonprofits. Some states, such as New York and California, require certain 501(c)(4) social welfare organisations to register as charitable organisations and file detailed reports, including donor information. As a result, we can expect regulators in states that promote donor transparency to continue pushing for new donor disclosure laws or regulations.

A foreign national can attend, speak at campaign events for a federal candidate, and solicit contributions to the campaign

Federal law prohibits foreign nationals from contributing, donating, or participating in decisions involving election-related activities in connection with any federal, state, or local election. This includes soliciting, directing, receiving, or making contributions, as well as providing "substantial assistance" in the making of any expenditure or disbursement.

However, in AO 2004-26 (Weller), the Commission made an exception, allowing a foreign national to attend, speak at campaign events for a federal candidate, and solicit contributions to the campaign. The Commission clarified that the foreign national could not manage or participate in any of the campaign committee's decision-making processes.

In another case, MUR 5987, the Commission examined a situation where a foreign national provided an uncompensated musical performance as a volunteer for a federal candidate's campaign during a fundraising event. The Commission found no violation as the performer had not participated in any decision-making and had merely provided volunteer services.

Additionally, in AO 2014-20 (Make Your Laws PAC), the Commission allowed a foreign national to provide assistance in developing intellectual property, such as trademarks, graphics, and website design for a political action committee, under the volunteer exemption.

Despite these exceptions, it is important to note that foreign nationals are generally prohibited from contributing to political campaigns in the United States. This includes direct contributions to candidates or indirect contributions through organizations.

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