The Federal Election Commission is set to consider an advisory opinion Sept. 29 reinforcing restrictions on soliciting foreign campaign contributions, following persistent complaints that Donald Trump's campaign and its allies have been asking foreigners for money.
Federal law has long barred U.S. candidates and other political organizations from taking—or soliciting—foreign campaign money.
The new FEC advisory opinion request (AO 2016-10) came not from Trump, the Republican presidential nominee, but from an American living in Canada, Caroline Goodson Parker. Parker asked about the legality of her plan to email or text-message solicitations to people living outside the United States, asking for contributions to U.S. political party committees.
A draft response set to be considered by the FEC said such solicitations would be illegal unless Parker inquires before asking for a contribution whether the person being solicited is an American citizen or legal U.S. resident, and thus legally able to make U.S. campaign contributions.
The draft response cited the same FEC regulations critics say the Trump campaign and its allies have been ignoring in sending numerous email solicitations to foreigners.
Larry Noble, a former FEC general counsel now working with the nonprofit Campaign Legal Center, told Bloomberg BNA that the draft FEC advisory opinion “seems to follow the regulations we cited in our complaint against Trump for soliciting foreign nationals.”
The draft ruling would require the votes of at least four of the six FEC commissioners in order to be adopted. It was not clear if the commissioners would support the draft or if an alternative draft might also be considered.
The commissioners include three recommended by Democrats and three Republicans. They have been deeply divided along party and ideological lines on key legal and enforcement matters.
The Campaign Legal Center, along with the nonprofit Democracy 21, filed an enforcement complaint with the FEC in June charging that Trump's campaign “violated black-letter federal law” by sending campaign fundraising e-mails to foreign nationals, including foreign politicians in Iceland, Scotland, Australia and England. More recently, the Washington Post reported that former Mexican President Vicente Fox had received repeated solicitations to contribute to Trump.
No action on the enforcement complaint against the Trump campaign has been announced, and the FEC often takes months or years to resolve such complaints. The commission is required by law, however, to respond to advisory opinion request within 60 days.
Noble indicated the FEC's consideration of Parker's advisory opinion would have to address the central legal issue raised by critics of the Trump solicitations.
“The rule is that you can’t solicit someone if you have facts that would lead a reasonable person to conclude that there is a `substantial probability' the person is a foreign national or would lead such a person to inquire unless, you conduct an inquiry,” Noble told Bloomberg BNA in an email.
He said the draft advisory opinion set to be considered by the FEC would establish that there is an obligation to inquire about eligibility to contribute if the person being solicited has a foreign residence.
“In the Trump case,” Noble said, “not only were the solicitations sent to persons living abroad, but they were members of the foreign government.”
In announcing its complaint against the Trump campaign in June, the Campaign Legal Center called on the FEC send a clear message that foreign money is not allowed in U.S. elections. It said the FEC should investigate how many of foreign solicitations were sent on behalf of Trump, to whom they were sent, whether any illegal foreign contributions were received or returned.
The complaint said that dozens of prominent Icelandic, Scottish, Australian and British politicians received Trump fundraising e-mails on their official government email accounts, which end in “.is” or “.uk,” clearly indicating that the e-mail recipients lived in Iceland or the United Kingdom. The e-mails reportedly continued to be sent even after foreign press reports began raising questions about the solicitations.
When Trump visited Scotland in June to promote a golf resort, Scottish members of parliament reportedly received e-mails urging them to “make America great again” by donating to his campaign.
The Trump campaign has not commented on charges involving foreign solicitations, but others have suggested that any apparent legal violation could be mitigated if the campaign and its allies did not intend to ask foreigners for money. Campaigns and other political organizations frequently buy or rent mailing lists from others and a large operation, such as a presidential campaign, may not be able to inquire if everyone on such a list is legally able to contribute.
The FEC is set to take up the new advisory opinion on foreign solicitations after months of contentious discussion about whether further action is needed by the agency to curb a broader threat of foreign money influencing U.S. elections.
In a 3-3 vote during the last FEC meeting Sept. 15, the commissioners failed to approve a proposal by Democratic Commissioner Ellen Weintraub to begin writing new rules to address a possible threat of foreign money being funneled into campaigns through corporations (See previous story, 09/16/16). Weintraub has contended that this threat increased after corporations were allowed to spend money in federal campaigns by the 2010 Supreme Court ruling in Citizens United v. FEC.
The party-line FEC vote stalling Weintraub's proposal to draft a new notice of proposed rulemaking (NPRM) followed a similar deadlock over a new proposal by Republican FEC commissioners for a policy statement to guard against foreign campaign money. The Republicans' proposed policy contained a new call for corporations donating to super political action committees and other campaign spending groups to certify that their decisions about campaign contributions are made by U.S. citizens with money earned in the U.S.
FEC officials said Weintraub would raise the foreign-money rulemaking issue again at the Sept. 29 commission meeting with a new proposal to draft rules addressing several specific issues. It was not clear whether her latest proposal would gain any Republican support.
Issues addressed by the new proposal included possible limits on the percentage of foreign ownership of a corporation spending money in U.S. campaigns, as well as the board membership of such a corporation. Weintraub's proposal also would address foreign government ownership of a corporation, the type of corporation involved in campaign spending and implementation measures.
The partisan bickering at the FEC at least partly reflects wider sparring over the issue of foreign influence in this year's presidential campaign. The campaign has been highlighted by complaints from Democrats about possible Russian intervention favoring Trump over Democratic nominee Hillary Clinton.
The candidates, themselves, addressed the issue during their nationally watched debate Sept. 26, with Clinton criticizing Trump for his praise of Russian President Vladmir Putin and Trump pushing back.
During the debate, Clinton accused Putin of being behind cyber attacks on Americans and American organizations, including the Democratic National Committee.
As he has in the past, Trump questioned the threat of Russian computer hacking.
“ I don’t think anybody knows that it was Russia that broke into the DNC,” he said. “I mean, it could be Russia, but it could also be China, it could also be lots of other people. It also could be somebody sitting on their bed who weighs 400 pounds, OK? ”
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