2012 Elections – Foreigners, the U.S. Political Process and Permitted Activities

We are in the peak of the Republican 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.

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, persons with green cards are excluded from the definition of a foreign person and should be 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.   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.”

Conclusion

As the 2012 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.