Sept. 29 — Curbs on soliciting foreign campaign contributions were reinforced by an advisory opinion ( AO 2016-10) approved by the Federal Election Commission, though the FEC commissioners were divided over such details as when someone asking for campaign money must ask about citizenship or warn that foreign contributions are illegal.
Approval of the advisory opinion by a 4-2 vote came at an FEC meeting Sept. 29 where the commissioners repeated familiar arguments about whether to take a more active role protecting U.S. election campaigns from threats including foreign money and deceptive fundraising practices. Despite continuing divisions between Democratic and Republican commissioners, they were able to reach some rare agreements.
In addition to approving the advisory opinion on foreign solicitations, the FEC also agreed to form a new staff working group to come up with ideas to combat deception by political action committees widely known as scam PACs. These PACs purport to raise money to support candidates but have been disavowed by the candidates.
The proposal for a new working group on scam PACs was suggested by Democratic FEC Commissioner Ellen Weintraub and backed by FEC Chairman Matthew Petersen following a discussion of new proposals for FEC action on the issue by Weintraub and fellow Democratic Commissioner Ann Ravel.
In a rare move, the FEC unanimously advanced a proposed rulemaking to update outmoded regulations and codify policies regarding new technologies, including internet campaign contribution systems. The proposed new rules, set to be published for public comment, would seek to move the FEC from the age of direct mail and check-writing to the age of e-mail, text messages and online fundraising, according to Petersen, who has pushed to complete the long-pending regulatory project.
The FEC is “more than overdue” to update rules in this area, Petersen, a Republican, said in calling for a vote on the 112-page notice of proposed rulemaking on “ technological modernization.”
The notice approved by the FEC set a 30-day time limit from the time of publication in the Federal Register for public comments. The rulemaking seeks to integrate numerous advisory opinions and enforcement cases that the FEC has ruled on in recent years regarding fundraising technology issues, though it doesn't necessarily break any new ground on the issues.
In a related move, the FEC also unanimously advanced a rulemaking notice asking for additional comments on whether new rules are needed regarding political communications on the internet. The notice said existing FEC disclaimer rules requiring statements about who is paying for a communication and authorization by a candidate were written for print and broadcast communications and do not necessarily fit digital communications.
The advisory opinion approved by the FEC regarding soliciting campaign contributions came after highly publicized accusations that Republican presidential nominee Donald Trump's campaign and its allies have been asking foreigners for money. The requested ruling, however, came not from Trump but from an American citizen living in Canada, Caroline Goodson Parker (See previous story, 09/29/16).
Federal law has long barred U.S. candidates and other political organizations from taking—or soliciting—foreign campaign money. Acknowledging this, Parker asked about the legality of her plan to e-mail or text-message solicitations to American expatriates and others living outside the U.S.—including some who may not be Americans—and ask for contributions to U.S. political party committees.
An initial draft response set to be considered by the FEC said such solicitations could 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, highly publicized e-mail solicitations to foreigners.
The final version of the advisory opinion approved by the FEC left open areas of disagreement regarding how far someone soliciting campaign contributions must go to determine if the person being solicited is a foreigner and thus ineligible to contribute in U.S. elections. For example, the final advisory opinion said the commissioners could not agree whether Parker must inquire into the citizenship status of people who told her several years ago that they were U.S. citizens but who reside abroad.
There also was disagreement among the commissioners regarding whether solicitations sent to people living overseas—including a request to pass along to others a plea for U.S. campaign contributions—must include a warning that foreigners are prohibited from contributing in U.S. elections. Two commissioners holding Democratic seats—Ellen Weintraub and Steven Walther—said such a warning should be included.
FEC Democratic Commissioner Ann Ravel, however, voted with the three FEC Republicans for the final advisory opinion, which said Parker was not required to warn the individuals she solicits that they are prohibited from soliciting foreign nationals.
The wide-ranging Sept. 29 FEC meeting also included discussion of a new proposal by Weintraub to control campaign money in U.S. elections originating from foreign corporations. The new proposal focused solely on direct corporate money and avoided the hot-button issue of how to treat corporate PACs of U.S. subsidiaries owned by foreign parent companies. Discussion of the new proposal was put off after Petersen asked for more time to study it.
Also discussed briefly was a new proposal from Ravel for legislative recommendations to update the Watergate-era voluntary public financing system for funding presidential campaigns. Ravel noted that the current system is outmoded and largely unused and said that the FEC should take an active role in revamping it.
A proposal from Republican Commissioner Caroline Hunter for greater FEC outreach to promote voluntary compliance with campaign finance law also was discussed. Hunter said she hoped to have the commission publicize through a newspaper op-ed article tips for compliance with rules on foreign influence, contribution limits and restrictions and coordination.
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