“Things of Value” and the Foreign Contribution Ban

“Things of Value” and the Foreign Contribution Ban

Legal Sidebari

“Things of Value” and the Foreign
Contribution Ban
October 28, 2019
The Federal Election Campaign Act (FECA), as amended, prohibits foreign nationals from contributing
money “or other thing[s] of value” in connection with a federal, state, or local election. A “thing,” as one
dictionary has it, is some entity that “cannot be specifically designated or precisely described.” Sure
enough, the scope of this ban has largely proven blurry, inconsistent, and frequently contested. FECA’s
prohibition has been the subject of much debate in the wake of congressional inquiries over the Trump
Administration’s dealings with Ukraine earlier this year. This Sidebar introduces the debate in three parts:
first, it provides an overview of historical developments that led to the present statutory language; second,
it discusses the relevant code and regulatory sections that compose the ban; and third, it reviews patterns
and practical difficulties arising in the interpretation and enforcement of this prohibition, with special
attention to opposition research and the contribution of information. The post concludes with
considerations for Congress.
History of the Foreign Contribution Ban
Concerns over foreign interference in domestic affairs date to America’s founding, when delegates to the
constitutional convention feared that the new nation would make a tempting target for European powers
willing to pay for influence and compliance. Alexander Hamilton warned, “One of the weak sides of
republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”
In response, the Constitution’s drafters tried to inoculate federal leaders and institutions from outside
meddling. Members of Congress and the President, for example, must satisfy U.S. residency and
citizenship requirements, and officeholders are prohibited from accepting presents, emoluments, offices,
or titles of nobility from foreign states without the consent of Congress.
These concerns extended to more modern times. Fearful on the eve of World War II that “the Nazi
German government had established an extensive underground propaganda apparatus,” in 1938 Congress
enacted the Foreign Agents Registration Act (FARA), which in its original form required agents of foreign
entities engaged in political work in the United States to register with the federal government and to
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disclose payments made from and on behalf of the foreign principal. In 1966, Congress amended FARA
to make it a felony for a foreign principal to use an agent to make “any contribution of money or other
thing of value . . . in connection with an election to any political office.” But while FARA also made it
illegal for candidates to solicit, accept, or receive such a contribution, it only governed contributions from
agents of foreign entities. Congress did not prohibit foreign nationals from making direct campaign
contributions to candidates until 1974, when it amended FECA in response to allegations that President
Nixon’s reelection campaign had accepted millions of dollars in foreign contributions. In 1989, the
Federal Election Commission (FEC) broadened the ban by regulation to cover all expenditures—
including “a gift of money or anything of value”—made for the purpose of influencing a federal election.
Congress adopted this prohibition and extended it to state and local elections through the Bipartisan
Campaign Reform Act of 2002.
Legal Definitions
The contemporary ban on foreign contributions is codified at 52 U.S.C. § 30121(a)(1), which makes it
unlawful for a foreign national, directly or indirectly, to make an expenditure or “a contribution or
donation of money or other thing of value” in connection with a federal, state, or local election. It is also
illegal for a person to “solicit, accept, or receive a contribution” from a foreign national, or to provide
substantial assistance in the solicitation or making of a contribution or expenditure by a foreign national.
Violators are subject to criminal penalties, including prison time up to five years and fines up to $250,000,
and civil penalties proportionate to the value of the illegal contribution.
The technical definitions of “contribution” and “thing of value” are, on their face, seemingly circular. A
contribution is “any gift, subscription, loan, advance, or deposit of money or anything of value made by
any person for the purpose of influencing any election for Federal office.” Expenditure is defined the
same way. And by regulation, “the term anything of value includes all in-kind contributions.” Thus, the
FEC has recognized, “Congress has limited the scope of the foreign national prohibition as to the meaning
of the term ‘contribution.’”
Tangible and Intangible Things of Value
In 1979 the Second Circuit recognized that the words “thing of value” “are found in so many criminal
statutes throughout the United States that they have in a sense become words of art.” The court catalogued
a broad range of applications. For example, amusement is a thing of value under gambling statutes, and
the testimony of a witness is a thing of value under extortion statutes. In the case before it, the court held
that information about whether a potential co-conspirator is a government informant is a thing of value
under a statute prohibiting the selling of any “thing of value” of the United States for personal gain.
Under bribery statutes, as yet another example, courts have construed “anything of value” to include a
promise of future employment, reduced police investigation of drug trafficking, an extended curfew
during a defendant’s pretrial release, and an agreement not to run in a primary election.
As this list suggests, “[t]he word ‘thing’ notwithstanding, the phrase is generally construed to cover
intangibles as well as tangibles.” Tangible things of value tend to be easier to recognize, value, and
categorize under campaign finance law. FEC regulations list several common examples: securities,
facilities, equipment, supplies, membership lists, and mailing lists are all things of value that foreign
nationals may not contribute for free or reduced charge to American campaigns. In an advisory opinion,
the FEC has recognized that printed materials including flyers, advertisements, door hangers, tri-folds,
and signs are all things of value for purposes of FECA and thus may not be accepted from foreign
nationals, even if those materials were originally produced for foreign campaigns. Notably, this
prohibition extends even to materials whose value “may be nominal or difficult to ascertain.” Campaigns

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do, however, remain free to purchase these materials—and any other thing of value from a foreign
national—at the market price or an otherwise commercially reasonable rate.
Intangible things of value, such as services and information, require a more complicated inquiry that has
resulted in confusion and inconsistency even within the FEC. As with the provision of tangible goods,
foreign nationals may offer services to a U.S. campaign if they are appropriately compensated by the
campaign. And the statute also allows foreign nationals to volunteer by providing services without
compensation on behalf of a candidate or political committee. Because Congress did not appear to intend
to leave campaign services by foreign nationals completely unregulated, the difficulty presents in
demarcating the boundaries of this volunteer exemption.
FEC Advisory Opinions provide some guidance. Traditional volunteer activities, such as “lit drops, door
to door canvassing, handing out literature at transit stations, telephone banking, and get out the vote
activities” plainly fall within the exemption and may be provided by foreign nationals, who are similarly
free to attend campaign rallies and events and give speeches endorsing their chosen candidate or cause.
The FEC has also permitted foreign nationals to design a political committee’s website code, logos, and
trademarks without compensation.
Other kinds of activities have received inconsistent treatment. In 1981, for example, the FEC determined
that the foreign contribution ban prohibited a foreign artist from donating a painting to a campaign
committee for fundraising. In a subsequent deliberation, the FEC indicated that the 1981 donation did not
qualify for the volunteer exemption because it was created and bestowed for a fundraising purpose. But a
later Advisory Opinion specifically allowed foreign nationals to participate in fundraising activity,
including in the direct solicitation of funds.
In 2009 the FEC reviewed a complaint against musician Elton John and the Hillary Clinton for President
Committee after Elton John performed a fundraising concert for the campaign. The campaign paid for the
concert venue and related expenses such as airline travel, hotel incidentals, security, wardrobe, and license
fees, but Mr. John was not otherwise remunerated for his efforts. The FEC determined notwithstanding
the fact that Mr. John and the painter reviewed in the 1981 Advisory Opinion were each artists who
sought to donate their services to a political fundraising event, “Elton John’s uncompensated concert
performance would constitute the donation of service, not a tangible good, and is, therefore, significantly
different from the activity considered in the” 1981 Advisory Opinion. But this distinction was soon
discarded as well. In a 2014 Advisory Opinion, the FEC expressly superseded its 1981 opinion and
rejected any inference that donations of services are analyzed differently than donations of goods.
Thus, the volunteer exemption for foreign nationals who seek to influence American elections does not
turn on whether the volunteer produces something tangible or whether the volunteer participates in
fundraising activities. Instead, what seems to matter is whether the foreign national participates in a
political organization’s “decision-making process,” which includes “decisions concerning the making of
contributions, donations, expenditures, or disbursements in connection with elections” as well as
“decisions concerning the administration of a political committee.” Notably, this prohibition applies
regardless of whether the foreign national is compensated for his activities.
Applying this distinction, the FEC determined that it was lawful for Hillary Clinton’s Committee to use
Elton John’s name and likeness in an email solicitation for the concert because Mr. John did not
participate in any decision-making process related to the fundraiser. Similarly, the FEC has advised that
the foreign-national wife of a U.S. congressman was permitted to attend the re-election committee’s
meetings regarding committee events and political strategy, but she was prohibited from “managing or
participating in the decisions” of the committee.

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Contributions of Information as a “Thing of Value”
FECA’s prohibitions have also been interpreted by the FEC to extend to a foreign national’s
uncompensated contribution of information to a political campaign—at least in certain instances. For
example, the FEC has determined that polling information and opposition research provided to political
campaigns comprise in-kind contributions, even where the poll was commissioned for a separate
candidate and where the opposition research was used only to preemptively warn candidates about issues
that opponents might raise against them. However, it is unclear how far the prohibition on foreign entities’
provision on information to a campaign extends.
The Special Counsel’s Report on the Investigation into Russian Interference in the 2016 Presidential
Election brought new attention to whether the foreign contribution ban reaches the provision of
opposition research. The Report cautiously recognized that “candidate-related opposition research given
to a campaign for the purpose of influencing an election could constitute a contribution to which the
foreign-source ban could apply,” and summarized the arguments in favor of this view:
A campaign can be assisted not only by the provision of funds, but also by the provision of
derogatory information about an opponent. Political campaigns frequently conduct and pay for
opposition research. A foreign entity that engaged in such research and provided resulting
information to a campaign could exert a greater effect on an election, and a greater tendency to
ingratiate the donor to the candidate, than a gift of money or tangible things of value.
But the Report acknowledged that the matter remains uncertain: “At the same time, no judicial decision
has treated the voluntary provision of uncompensated opposition research or similar information as a
thing of value that could amount to a contribution under campaign-finance law.” Although the Supreme
Court summarily affirmed in 2012 a lower court opinion (authored by then-Judge Brett Kavanaugh)
holding that foreign citizens do not have a constitutional right to contribute to American candidates or
political parties, some scholars have warned that the limited First Amendment rights of noncitizens and
the rights of Americans to receive information from foreign speakers ought to allow certain kinds of
communication between campaigns and foreigners without any scrutiny of the information’s value.
Otherwise, they warn, it might be virtually impossible for campaigns—and voters—to learn about a rival
candidate’s foreign misconduct.
As with other things of value, political information may be purchased from foreign nationals with
campaign funds. In a 2007 Advisory Opinion, the FEC determined that it was permissible for a candidate
to “use campaign funds or personal funds to purchase information form Canadians about Canada’s multi-
party system and how third party and independent candidates win elections in Canada.”
Considerations for Congress
Significant questions are likely to persist in interpreting and applying the “thing of value” ban in
this context. In its Advisory Opinion forbidding a candidate from accepting flyers, door hangers,
and the like, the FEC recognized that the situation was similar to that in the Advisory Opinion
forbidding the provision of original artwork. But now that the artwork opinion has been
expressly superseded, what remains of the prohibition as it relates to other donated materials?
Would the ban apply differently if a foreign national used her time to hand paint a yard sign, or
digitally design a campaign brochure? Such “things” might hold even more value than leftover
flyers and brochures that were originally designed for foreign campaigns. And as the Special
Counsel’s Report reveals, the rules governing uncompensated services related to opposition
research and the sharing of negative information about domestic candidates remain murky. One
bill introduced this session would explicitly include “information sought or obtained for political

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advantage” as a prohibited thing of value, but the constitutionality of such an approach may
ultimately rest with the judiciary.

Author Information

Jacob D. Shelly

Legislative Attorney

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