US Elections – How Can Foreign Nationals Be Involved in the Political Process?

As we are about to get into the peak of the U.S. election season, some of the U.S. presidential 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 and these restrictions apply to all U.S. elections – federal, state and local.

Our office receives an increasing number of inquiries about what kind of activities by foreign nationals are permitted in connection with the U.S. elections and this article seeks to provide some general guidance.   Please note that this general information article is not legal advice and we are happy to provide individual consultations and to analyze a specific case.

The Law

The relevant law is the Foreign Agents Registration Act (FARA) which was first enacted in 1966 and initially 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 (corporation), persons with green cards are excluded from the definition of a foreign person and are, therefore, legally eligible to contribute money and/or services to a U.S. 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 (including political action committees, or PACs).   The limits of such financial contributions are outside of the scope of this article.

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.    During the 2008 campaign, FEC ruled that Sir Elton John (a foreign national) organizing a $2.5 million fundraiser for Hillary Clinton’s campaign was “volunteer service.”    The fact that the definition of what kind of service is allowed is vague, we would like to caution foreign nationals (who are not green card holders) to exercise great caution and to seek legal counsel before they get involved in the U.S. election process.

All U.S. Elections Are Covered

It should be noted that the federal election prohibition against contributions by foreign nationals apply to all U.S. elections – federal, state or local.   Most of the time the focus is on the 2/4-year presidential and congressional election cycle, but the rules apply to all elections.

Claiming to be a U.S. Citizen

As a result of the severe penalties imposed to U.S. political actors for accepting contributions from foreign nationals, political actors routinely ask whether the donor is a U.S. citizen or a permanent resident holder.     In this context, it is conceivable for a foreign national donor to simply check the “Yes” box indicating that they are a U.S. citizen just to simply move along the political contribution process.    This act, however simple it may appear, has the potential of very severe consequences.      Similarly, registering to vote in a U.S. election almost always involves a false claim of U.S. citizenship.

Under federal law (§237(a)(3)(D) of the Immigration and Nationality Act, or INA), if a person falsely claims to be a U.S. citizen, he or she may be deportable from the U.S.    A person may be placed in removal proceedings even if the false claim was made unintentionally or to certain private parties administering a government benefit.     Removal on this basis of false claim of U.S. citizenship is also not waivable in most cases.

Conclusion

As the election season gets underway and more and more people are engaged in some capacity for some of the candidates’ campaigns, it is important to understand the restrictions imposed on foreign nationals from engaging and contributing to the political process.

Our office is happy to provide consultations or to help analyze a specific situation pertaining to a foreign national and the U.S. election process.   We will also monitor the election process and report on immigration-related developments – please feel free to to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.