Foreigners and the U.S. Political Process – Permitted Activities

We are in the peak of the Democratic Party primary season and we are very close to have the general Presidential election campaign under way.  Some of the candidates have expressed opinions on immigration, in connection with the campaign, or previously, and it is natural for some foreign citizens, both living in the U.S. and abroad, to be interested in contributing money and/or services to a candidate’s campaign.  However, there are strict rules that govern what a foreign citizen can do during an election campaign.

The Law
The Foreign Agents Registration Act (FARA) was first enacted in 1966 and aimed to minimize foreign intervention in U.S. elections by establishing a number of limitations on foreign individuals.  In 1974, the prohibitions were incorporated into the Federal Election Campaign Act (FECA).

FECA prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.  It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them.  Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment.

Who Is a Foreign National?
The prohibition is very broad, but there are exceptions.  Although a “foreign national” is defined as broadly as a foreign person or entity, persons with green cards are excluded from the definition of a foreign person and are thus eligible to contribute money and/or services to a political campaign.

Money
Based on the definition of “foreign national” and the exception for green card holders, it follows that only green card holders can contribute financially to the political campaign of a presidential candidate.

It should also be noted that it is unlawful to provide assistance to foreign nationals making contributions to political campaigns in violation of FECA.  It is also illegal to knowingly solicit, accept, or receive contributions or donations from foreign nationals.

Contribution of Services
Some foreign nationals who do not have green cards can nonetheless help a political campaign via voluntary non-monetary contribution of services.  The Act provides that that the “volunteer” exemption applies as long as the foreign national performing the service is not compensated by anyone.

The “non-compensated” rule is very vague, and as a result, the Federal Election Commission has addressed its nuances in a couple of advisory opinions.  In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign.  By contrast, the decision in Advisory Opinion 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign.

The two advisory opinions may be difficult to reconcile.  The positive news is that the FEC is happily providing advisory opinions on whether a specific activity is permitted or not.