Playing by the Rules? Clinton flouts the FEC
Mon Mar 17, 2008 at 05:45:39 PM PDT
Ordinarily, this would be the type of thing I'd roll my eyes about -- part and parcel of the "silly season".
However, we do not reside in ordinary times. We're faced with a close primary and we're increasingly finding ourselves arguing over the seemingly small things. Even though I'm an Obama supporter, I do believe that at least part of the reason we argue over the small things is because the candidates are so closely matched on their potential for providing America with a new, better direction.
Soooo... if you'll indulge me, follow the flip and we'll examine my contributions to the silly season for what they're worth.
I actually stumbled across this via a MyDD diary, but the main citation for the news comes from a WaPo blog posting titled "Move Over, Oprah; Hillary has Elton John".
Per the blog:
"There is nothing I like better than throwing a party for a good friend. Will you come out to support my friend Hillary Clinton at a special, one-night-only solo concert in New York?" John wrote in an email sent far and wide by the Clinton campaign to would-be supporters."
So far so good, Elton John is actually free to advocate for any candidate he wishes. I don't begrudge him his opinion - however, here's where the trouble starts:
Tickets, which go on sale March 19, go for anywhere from $125 to $2,300 a seat, depending on whether you're more interested in seeing Elton John sing "Candle in the Wind" live or helping Hillary Clinton become president.
And those who help raise $10,000 for Clinton's presidential campaign "will be invited to a private reception with Elton John and the Clintons," according to the Clinton campaign Web site.
.
Now -- less you think Elton has gone off the reservation and attempted an end-run around U.S. election law on his own, this is clearly a campaign sanctioned event...
{D'OH! -- late note - it appears DK doesn't allow me to embed images directly from the Clinton website}
The problem, as you might have guessed, is that foreign citizens are barred from contributing financially to U.S. federal, state, or local elections.
The FEC does walk a fine linein regards to the aid that can be contributed by foreign nationals.
Assuming John is volunteering his show -- we have to ask what sort of volunteer work is allowed by citizens of foreign nations, and which is not. Perhaps Adam B could jump in on the interpretation - but my reading of the statutes and FEC guidance on the matter actually seems to indicate that Elton John cannot simply volunteer to hold a fundraiser, even a fundraiser wherein the contributions will come from US citizens, for Hillary Clinton.
From the FEC
Generally, an individual may volunteer personal services to a federal candidate or federal political committee without making a contribution. The Act provides this volunteer "exemption" as long as the individual performing the service is not compensated by anyone. 11 CFR 100.74. The Commission has addressed applicability of this exemption to volunteer activity by a foreign national, as explained below.
In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign. By contrast, the decision in AO 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign. [2]
Now -- you can read Advisory Opinion 1987-25 if you like, but it doesn't seem to apply here. The matter in question for AO 1987-25 basically allowed for a student who was clearly defined as foreign national to volunteer for a campaign. The student wrote the FEC asking for an AO on whether he could legally volunteer for a campaign, as he had gotten interested in US politics.
The FEC made clear that "contributions" were of a FINANCIAL nature were not allowed, but simple 'services' to a campaign were legal.
AO 1981-51 is much clearer on the matter of whether a foreign national can ply his or her art directly for purposes of securing financial contributions (even those from US citizens).
In AO 1981-51, Howard Metzenbaum's senate committee asked for AO concerning an artist -- a "foreign national" who wished to donate his/her art for purposes of a fundraising initiative
Your letter indicates that the Committee contemplates
obtaining a donation of volunteer services from an artist who is a
foreign national. The artist will create for the Committee an
original work of art that will be used for fundraising purposes
by the Committee. You explain that the artist will create for the
Committee "an original work of art by handpainting a number of
gouaches which are then reproduced in limited editions as a unique
Work of art by a unique process by persons working under the
artist's supervision." The artist proposes to allow the
Committee to produce a limited edition from the original works of
art (gouaches) created him, with the Committee to pay all costs of
production.
The FEC responds with a clear "NO" -- our interpretation would that this would be illegal
The scope of the current
statute, 2 U.S.C. SS 441e, clearly reaches beyond elections for
Federal office, and the term contribution as used here expressly
includes "money or other thing of value." Compare 2 U.S.C.
SS 441a. Accordingly, the Commission concludes that a foreign
national artist would be prohibited by 2 U.S.C. SS 441e from
donating his uncompensated volunteer services to the Committee to
create an original work of art for the Committee's use in
fundraising.
Now -- 2 USC 441e HAS been amended since this original FEC AO -- however, it doesn't appear that, if anything, the amendments actually CLARIFY directly along the lines of how the FEC originally interpreted the law.
Technically, we'd need a new Advisory Opinion on the FEC (and even then, an AO is interpretation -- or really, kind of a "highly educated interpretation" of how an agency views a law) -- but since the FEC still cites this AO regarding the question of 'contributions' by foreign nationals, we can safely assume that they still believe it valid.
Of course - if you read the original WaPo blog post, you'll notice there's mention of an Elton John "fundraiser" for Al Gore back in 2000.... but here's the key difference.
This from the CNN article cited:
The fund-raiser, at the home of Novell Corp. Chief Executive Eric Schmidt, raised $3.25 million for the Democratic National Committee.
Before John's performance, Silicon Valley venture capitalist John Doerr thanked Gore for his role in securing a landmark trade agreement with China.
Two key differences:
- The fundraiser was NOT a "concert" - rather, it was one of those infamous "per plate" dinners, hosted by and at the home of a US citizen.
- The fundraiser was for the DNC -- while foreign national contributions are not allowed to parties, either -- the FEC has differentiated between candidates, "issue ads", and party donations.
In other words - we're not talking apples and oranges, but we might be talking McIntosh and Granny Smiths... which matters.
Of course - one thing I haven't been able to confirm is that Elton John remains a UK citizen. He was born in England, continues to reside in England, and has been knighted (which, I believe, can only bestowed upon UK citizens), so I'm going to assume Sir Elton remains a British citizen. If someone can provide information to the contrary -- you can safely ignore this entire diary:-)
Like I said, this stuff sort of gets into the 'silly season' -- but the race now is what it is...
I'm not personally going to file an FEC complaint, but hey -- if someone else wants to do so, who am I to advise against it!
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