This article was originally published in Venable's Political Law Briefing Blog.
The Federal Election Commission recently concluded an investigation into contributions from a Canadian citizen to a candidate for governor. Why would the FEC investigate a state contribution? Because the ban on contributions from foreign nationals applies not just to federal candidates, but to state and local candidates as well.
The FEC dismissed the case because the state candidate did not know the contributions were illegal. In fact, he had checked with state election officials, who told him there was no issue under state law. There wasn’t, but there was an issue under federal law.
Foreign nationals are individuals who are not U.S. citizens or non-citizens who do not have permanent resident (i.e., green card) status, as well as any companies incorporated, organized, or located abroad. U.S. citizens living in other countries are permitted to contribute.
The foreign national ban prohibits not only making contributions, but also having any control over a political committee. Thus, U.S. subsidiaries of foreign companies must be careful to have their PACs run by U.S. citizens or permanent residents. This includes all decisions about which candidates the PAC will support.
Foreign nationals may volunteer for a candidate or political committee. For example, foreign nationals may perform get-out-the-vote activities or solicit contributions for a political committee. Even volunteers, however, may not make decisions for campaigns or political committees.
Ballot measure campaigns are generally not covered by the ban, so foreign individuals and companies may contribute to a ballot measure committee. In certain cases, however, the FEC has held that when a ballot measure effort is controlled by or is very closely related to a candidate, then the contribution would be considered election-related and, therefore, not permissible.
In sum, it is important for foreign nationals to be advised that they are prohibited from making contributions to federal, state, and local campaigns and, on the other side of the coin, that federal, state, and local campaigns and committees, regardless of state law, are also prohibited from accepting contributions from foreign nationals. Remember, the "Federal" in Federal Election Commission can sometimes mean state and local, too.