Relevant to Donald Trump Jr., FEC in 2004 Read the Term “Thing of Value” Broadly When It Comes to Foreign Contributions

Following up on this post, there are remaining questions about whether providing “dirt” or files related to Hillary Clinton from Russian government sources could be considered a “thing of value” for purposes of the law barring the solicitation of contributions from foreign entities. I’ve already pointed to a 1990 advisory opinion of the FEC so suggesting, in the context of providing polling information (something intangible) free of charge. Here’s another, from 2007, that is even strong on the question of the breadth of the foreign contribution ban, even as to those things whose value may be “difficult to ascertain” (my emphases added):

Question 4. May your authorized committee accept election materials used in previous Canadian campaigns that are provided without charge by Canadian third party candidates?

No, your authorized committee may not accept election materials used in previous Canadian campaigns that are provided without charge by Canadian third party candidates. Your authorized committee may, however, expend campaign funds to purchase the materials. You may also use personal funds to purchase such materials.

As noted above, the Act and Commission regulations prohibit foreign nationals, directly or indirectly, from making a “contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal State, or local election.” 2 U.S.C. 441e(a)(1)(A); see also

11 CFR 110.20(b). “Anything of value” includes all in-kind contributions, including the provision of goods or services without charge or at a charge that is less than the usual and normal charge. See 11 CFR 100.52(d)(1). “Usual and normal charge” is defined as the price of goods in the market from which they ordinarily would have been purchased at the time of the contribution, or the commercially reasonable rate prevailing at the time the services were rendered. See 11 CFR 100.52(d)(2).

Here, you propose accepting without charge, from Canadian third party and independent candidates, certain printed materials used in previous Canadian campaigns. The materials would include flyers, advertisements, door hangers, tri-folds, signs, and other printed material. You plan to use these items to assist you in your own campaign. Although the value of these materials may be nominal or difficult to ascertain, they have some value. The provision of these items without charge would relieve your campaign of the expense that it would otherwise incur to obtain such materials. Thus, the provision of such items without charge would constitute a contribution and, as such, would be prohibited, particularly in light of the broad scope of the prohibition on contributions from foreign nationals. See, e.g., 120 Cong. Rec. 8782 (Mar. 28, 1974) (statement of Sen. Bentsen, author of the amendment prohibiting foreign national contributions) (“I am saying that contributions by foreign nationals are wrong, and they have no place in the American political system.”); see also Explanation and Justification for Regulations on Contribution Limitations and Prohibitions, 67 Fed. Reg. 69940 (Nov. 19, 2002) (“As indicated by the title of section 303 of BCRA, “Strengthening Foreign Money Ban,” Congress amended 2 U.S.C. 441e to further delineate and expand the ban on contributions, donations, and other things of value by foreign nationals.”).

The situation presented here is similar to that considered by the Commission in Advisory Opinion 1981-51 (Metzenbaum). In that opinion, the Commission concluded that the provision of an original work of art by a foreign national artist to a political committee for use by the committee in fundraising was a contribution and, hence, prohibited by 2 U.S.C. 441e. Similarly here, you plan to use the printed materials from previous Canadian campaigns to assist you in your own campaign. As such, their provision without charge by foreign nationals would constitute a prohibited in-kind contribution to your campaign. Nor may you solicit, accept, or receive such goods from foreign nationals. See 2 U.S.C. 441e(a)(2); 11 CFR 110.20(g) and (h). Your committee may, however, expend campaign funds to purchase such materials because such use of campaign funds would be an otherwise authorized expenditure in connection with your campaign for Federal office and would not constitute a conversion to personal use. See 2 U.S.C. 439a(a)(1); 11 CFR 113.2. You may also use personal funds to purchase such materials. See 11 CFR 110.10.


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