Federal law prohibits contributions, donations, expenditures(including independent expenditures) and disbursements solicited, directed, received or made directly or indirectly by or from foreign nationals in connection with any federal, state or local election. This prohibition includes advances of personal funds, contributions or donations made to political party committees and organizations, state or local party committees for the purchase or construction of an office building funds under 11 CFR 300.35, and contributions or disbursements to make electioneering communications.
Foreign nationals are also prohibited from, directly or indirectly, donating to an inaugural committee; and it is a violation of federal law to knowingly accept such donations from a foreign national.
Prohibitions on participation in decision-making
In addition, foreign nationals are prohibited from participating in decisions involving election-related activities. A foreign national may not direct, dictate, control or directly or indirectly participate in the decision-making process of any person (such as a corporation, labor organization, political committeeor political organization) with regard to the person's federal or nonfederal election-related activities. This includes decisions concerning the making of contributions, donations, expenditures or disbursements in connection with any federal state or local election or decisions concerning the administration of a political committee.
Prohibition on providing substantial assistance
Furthermore, it is a violation of federal law to knowingly provide substantial assistance in the making, acceptance or receipt of contributions or donations in connection with federal, state or local elections, to a political party committee or for the purchase or construction of an office building by a state or local party committee. Similarly, it is a violation to provide substantial assistance in the making of a disbursement to make electioneering communications, or an expenditure, independent expenditure or disbursement in connection with a federal, state or local election. This prohibition includes, but is not limited to, acting as a conduit or intermediary for foreign national contributions and donations.
Prohibition of knowing acceptance
For the purposes of this section, knowingly means that a person must:
- Have actual knowledge that the source of the funds solicited, accepted or received is a foreign national;
- Be aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source of the funds solicited, accepted or received is a foreign national; or
- Be aware of facts that would lead a reasonable person to inquire whether the source of the funds solicited, accepted or received is a foreign national, but the person failed to conduct a reasonable inquiry.
Pertinent facts that satisfy the "knowing" requirement include knowledge of:
- Use of a foreign passport or passport number for identification purposes;
- Use of a foreign address;
- A check or other written instrument drawn on an account or wire transfer from a foreign bank; or
- Contributor or donor living abroad.
Definition of foreign national
A foreign national is:
- An individual who is: (1) not a citizen of the United States and (2) not lawfully admitted for permanent residence (as defined in 8 U.S.C. § 1101(a)(20)); or
- A foreign principal, as defined in 22 U.S.C. § 611(b). Section 611(b) defines a foreign principal as a foreign government or political party; or a partnership, association, corporation, organization, or other combination of persons organized under the laws of a foreign country or whose principal place of business is in a foreign country.
"Green Card" exception
An individual who is not a citizen of the United States is eligible to make a contribution if he or she has a "green card" indicating that he or she is lawfully admitted for permanent residence in the United States.
Determining nationality of contributor
In Advisory Opinion (AO) 1998-14, the Commission stated that the use of any surname on a contribution check (or similar instrument) would not, by itself, give any reason to inquire as to the person’s nationality.
Nonetheless, the Commission advised the committee to take the following minimally intrusive steps to ensure that the contributions it received did not come from foreign nationals:
- Ensure that public political ads and solicitations directed to audiences outside the U.S. contain a summary of the foreign national prohibition of 52 U.S.C. § 30121.
- Make further inquiry into the nationality of the contributor if the committee receives a contribution postmarked from any non U.S. territory.
- Make further inquiry into the nationality of the contributor if the committee receives a contribution indicating that either the bank or the account owner has a foreign address.
In all of these instances, if the contribution is submitted along with credible evidence (for example, a copy of a valid U.S. passport) that the contributor is a U.S. citizen, a U.S. national or a permanent resident alien, no further inquiry need be made. However, if the committee has actual knowledge that the contributor is a foreign national, it may not rely on these documents as a defense. See also AO 2016-10 (setting forth the duty of an individual fundraiser to determine the nationality of contributors).
Domestic subsidiaries of foreign corporations
The Commission has said that a foreign corporation may not establish and administer a separate segregated fund. However, a United States domestic corporation that is a subsidiary of a foreign corporation may establish and administer a separate segregated fund which can make contributions to federal candidates as long as:
- The domestic corporation is a discrete entity incorporated under the laws of any state within the United States, and its principal place of business is within the United States.
- The foreign parent does not finance election-related contributions or expenditures either directly or through the subsidiary, including through subsidizing the subsidiary’s business operations, unless the subsidiary can demonstrate by a reasonable accounting method that it has sufficient funds from its own domestic operations to make any contributions or expenditures.
- All decisions concerning the administration of the domestic subsidiary’s separate segregated fund are made by U.S. citizens or permanent residents.
Partnership or LLCs with foreign national partners/members
Similarly, because contributions from foreign nationals are prohibited, a partnership or LLC may not attribute any portion of a contribution to a partner or member who is a foreign national, nor may any partner who is a foreign national participate directly or indirectly in decisions regarding the making of contributions or donations in connection with any federal, state or local election in the United States.