In June 2016, a number of officials from Donald Trump’s presidential campaign—including Donald Trump, Jr., Paul Manafort, and Jared Kushner—attended a meeting with Natalia Veselnitskaya, a Russian lawyer who offered to share documents that “would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to [Donald Trump] . . . [as] part of Russia and its government’s support for Mr. Trump.”
The meeting’s public disclosure a year after its occurrence immediately sparked a debate over the legality of what had transpired.
This Note joins that debate by examining several of the questions arising from the meeting’s circumstances. Federal law prohibits foreign nationals from contributing any “money or other thing of value” to a campaign and bars anyone from soliciting such contributions.
However, “thing of value” is not defined in the relevant statute, and it is not immediately clear whether it can be construed so broadly so as to cover information about a political opponent. If it can, then the statute may purport to prohibit or chill speech protected by the First Amendment. Moreover, the debate itself highlights the need for additional clarity in this area of campaign finance law.
In order to examine whether and how the foreign national spending ban can apply to information, this Note proceeds in three Parts. Part I examines the circumstances of the June 2016 meeting, the relevant background law covering the prohibition on foreign nationals’ campaign contributions and expenditures, and relevant First Amendment precedent. Part II examines and grapples with the statutory and constitutional questions raised by the June 2016 meeting. Part III proposes a framework for how courts, Congress, and the Federal Election Commission (FEC) should consider the issue of information from foreign sources in an election context going forward.
I. The June 2016 Meeting and Relevant Background Law
This Part introduces the Trump campaign’s June 2016 meeting and relevant background law. Section I.A describes the publicly known facts about the June 2016 meeting. Section I.B discusses the campaign finance law governing campaign contributions or expenditures by foreign nationals, or the solicitation thereof. Section I.C outlines the First Amendment interests at stake and the overbreadth doctrine.
A. The June 2016 Meeting
On June 3, 2016, Donald Trump, Jr., son of the then-presumptive Republican presidential nominee, received an email from Rob Goldstone, a British publicist with whom Trump, Jr. had a “casual relationship,”
which stated, “The Crown prosecutor
of Russia met with . . . Aras [Agalarov]
this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to your father.”
Goldstone continued, explaining, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”
Trump, Jr. replied, “If it’s what you say I love it especially later in the summer.”
The email exchange continued until Goldstone offered to schedule a “meeting with you and [t]he Russian government attorney who is flying over from Moscow for this Thursday.”
The meeting took place on June 9, 2016, in Trump, Jr.’s office in Trump Tower in New York City and included eight participants.
The New York Times first publicly revealed the meeting’s occurrence in July 2017, over a year later.
As new details emerged over the ensuing days, Trump, Jr. issued a series of evolving statements explaining the meeting.
He later claimed to have attended the meeting believing that he would receive “[p]olitical [o]pposition [r]esearch” about Hillary Clinton, the then-presumptive Democratic presidential nominee.
However, he also explained that although Veselnitskaya began the meeting by “stat[ing] that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton . . . [i]t quickly became clear that she had no meaningful information.”
Furthermore, “[i]t became clear . . . that [the Magnitsky Act, a sanctions package targeting several Russian officials,] was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting,” which, according to Trump, Jr., concluded after twenty to thirty minutes.
In written testimony submitted to the U.S. Senate Judiciary Committee, Veselnitskaya claimed that Trump, Jr. “asked if I had any financial documents proving that what may have been illegally obtained funds were also being donated to Mrs. Clinton’s foundation.”
In a media interview, she also stated that Trump, Jr. responded to the concerns she raised about the Magnitsky Act by saying, “Looking ahead, if we come to power, we can return to this issue and think what to do about it,”
although she testified that she understood this statement to be simply a polite farewell.
Ultimately, irrespective of what may or may not have actually been exchanged at the June 2016 meeting, it appears from his own statements that Trump, Jr. arranged the meeting under the impression he was to receive “[p]olitical [o]pposition [r]esearch” from a Russian attorney—which he was told was part of the Russian government’s support for his father—and, according to Veselnitskaya, asked her directly for that information at the meeting itself.
B. Foreign Influence in American Elections
This section covers the campaign finance laws implicated by the June 2016 meeting, which today prohibit foreign campaign contributions or expenditures of “money or other thing[s] of value.”
Section I.B.1 discusses historical concerns over foreign influence in American policymaking and the development of relevant campaign finance law. Section I.B.2 reviews current statutory and regulatory limitations on the rights of foreign nationals to participate in the electoral process. Finally, Section I.B.3 turns to a discussion of Bluman v. FEC, which upheld the statutory ban on campaign contributions and expenditures by foreign nationals against a First Amendment challenge.
1. Development of Campaign Finance Law. — A distrust of foreign interference in elections was present in the American constitutional design at the Founding. Attendees at the Constitutional Convention “were concerned that the small size of the young country (compared to the great European powers) would open it up to foreign corruption.”
Several provisions were included in the Constitution specifically to address this concern, such as residency requirements for members of Congress,
the Emoluments Clause,
and the Natural-Born Citizen Clause.
Concerns over foreign influence would wax and wane over the ensuing decades, peaking at moments such as the Quasi-War with France in the late 1790s, which resulted in the enactment of the Alien and Sedition Acts.
The years preceding World War II saw a resurgence in concern regarding foreign influence over American policy; Congress responded by passing the Foreign Agents Registration Act (FARA) in 1938,
which “established disclosure requirements for certain kinds of political expression sponsored by foreign principals but did not place any restrictions on the speech itself.”
In 1966, Congress strengthened FARA by making it a felony for any “agent of a foreign principal” to directly or indirectly, on behalf of the foreign principal, “knowingly make[ ] any contribution of money or other thing of value . . . in connection with an election to any political office.”
The law also prohibited “knowingly solicit[ing], accept[ing], or receiv[ing]” such a contribution.
It was riddled with loopholes, however, and remained focused on agents of foreign principals rather than the principals themselves.
Efforts to constrain foreign influence over American officeholders would eventually intersect with the laws governing the financing of American campaigns. In 1971, after decades of taking a piecemeal approach, Congress enacted comprehensive legislation to address the rapidly rising cost of presidential and congressional elections and enhance disclosure of campaign spending and sources of fundraising.
But the initial version of the Federal Election Campaign Act (FECA) proved as ineffective as previous attempts to regulate campaign finance had—“[i]ndeed, from 1910 to 1974 federal campaign finance law was honored more in the breach than in the observation.”
Over the next few years, however, as revelations stemming from the break-in at the Watergate Hotel unfolded, a groundswell of political pressure led Congress to address the outsize influence of money in politics.
Congress responded by enacting the Federal Election Campaign Act Amendments of 1974 (“1974 FECA Amendments”),
which “transformed American campaign finance law” by establishing limits on contributions to federal candidates, total campaign expenditures by presidential and congressional campaigns, and independent campaign expenditures by individuals; mandating disclosure of campaign contributions; creating a public financing system for presidential campaigns; and establishing an independent agency, the Federal Election Commission, to enforce federal campaign finance law.
Scholars have pointed to the Watergate scandal and ensuing reforms—specifically the 1974 FECA Amendments and Buckley v. Valeo,
the subsequent landmark Supreme Court case that considered FECA’s constitutionality—as commencing the “modern era” of campaign finance regulation.
In Buckley, the Supreme Court struck down the 1974 FECA Amendments’ limits on expenditures as unconstitutionally infringing on the right to political speech protected by the First Amendment,
thereby drawing a distinction between contributions and expenditures
that persists “[a]t the heart of American campaign finance law” to this day.
The Court reasoned that whereas expenditure limits “necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,”
contribution limits are lesser restraints on political speech because they “permit[ ] the symbolic expression of support evidenced by a contribution but do[ ] not in any way infringe the contributor’s freedom to discuss candidates and issues.”
Indeed, the Court ruled that contribution limits were “only a marginal restriction” on free speech rights, since “[a] contribution serves as a general expression of support . . . but does not communicate the underlying basis for the support.”
FECA’s contribution restrictions and disclosure requirements were therefore justified by the government’s compelling interest in preventing corruption and the appearance of corruption.
Among the provisions of the 1974 FECA Amendments that survived Buckley was a ban on foreign contributions sponsored by Texas Senator Lloyd Bentsen.
Bentsen introduced the amendment after reports revealed that President Nixon had accepted over $10 million in foreign contributions during his 1972 reelection campaign.
The amendment prohibited foreign nationals, except U.S. permanent residents, from making campaign contributions and prohibited candidates from “knowingly solicit[ing] or accept[ing] a [campaign] contribution” from foreign nationals.
While introducing the amendment, Senator Bentsen explained, “I do not think foreign nationals have any business in our political campaigns . . . . Their loyalties lie elsewhere; they lie with their own countries and their own governments.”
In 1976, the FEC was granted jurisdiction to enforce this provision.
In 1989, the FEC promulgated a rule that extended the ban on foreign contributions to “expenditures” by foreign nationals, meaning “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made . . . for the purpose of influencing any election for Federal office.”
Following the 1996 election, legal permanent residents were implicated in funneling contributions from the Chinese government to the Democratic National Committee.
The ensuing controversy provided part of the impetus for comprehensive campaign finance reform legislation,
championed by Senators John McCain and Russ Feingold, which included a section titled “Strengthening Foreign Money Ban.”
That bill failed to overcome a filibuster in the Senate,
but a subsequent version was enacted five years later as the Bipartisan Campaign Reform Act of 2002 (BCRA).
One of “BCRA’s goals was to provide enhanced criminal penalties for knowing and willful FECA violations . . . [and] to put in place a strong sentencing guideline for FECA crimes.”
BCRA therefore increased FECA’s criminal penalties,
extended the statute of limitations for all causes of action,
and added the involvement of “a contribution, donation, or expenditure from a foreign source” as an aggravating factor to be considered at sentencing.
It also clarified that the foreign national spending ban extended to state and local elections and expanded the ban on foreign national contributions to expenditures, independent expenditures, contributions to political parties, and electioneering communications, thereby codifying and expanding the FEC’s 1989 rule.
2. Current Law. — The current statutory language of FECA makes it illegal for “a foreign national, directly or indirectly, to make . . . 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.”
Foreign nationals are also prohibited from making “contribution[s] or donation[s] to a committee of a political party” and “expenditure[s], independent expenditure[s], or disbursement[s] for an electioneering communication.”
In addition, the law bars any person from “solicit[ing], accept[ing], or receiv[ing] a contribution or donation . . . from a foreign national.”
The term “foreign national” is statutorily defined in this context as foreign governments; foreign political parties; foreign partnerships, associations, corporations, and organizations; and individuals who are not U.S. citizens, U.S. nationals, or lawful permanent residents.
The FEC defines “solicit” as “ask[ing], request[ing], or recommend[ing], explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”
FEC regulations also prohibit “provid[ing] substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation” by a foreign national or “provid[ing] substantial assistance in the making of an expenditure, independent expenditure, or disbursement” by a foreign national.
There are some important exceptions relevant to the foreign national spending ban. The “media exemption” provides that “[a]ny cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station . . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication, is not a contribution.”
This exemption applies quite broadly to the activities of a person or organization determined to be a “press entity.”
Debate over the outer limits of who qualifies as a press entity remains ongoing,
but the general trend appears to favor an increasingly expansive interpretation of the exemption.
There is also an exemption for volunteer services.
The key question in applying this exemption is whether the services provided are voluntary and uncompensated, whether by the campaign or any other person or entity;
establishing a formal “volunteering” relationship with a campaign is not a prerequisite.
FECA’s provisions are civilly enforceable by the FEC, but “knowing and willful” violations are also criminally enforceable and can be referred to the Department of Justice (DOJ) for investigation and prosecution.
“Knowingly” here means that a person either (1) has “actual knowledge that the source of the funds solicited, accepted or received is a foreign national”; (2) is “aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source” of such funds is a foreign national; or (3) is “aware of facts that would lead a reasonable person to inquire whether the source” of such funds is a foreign national, but failed to make a reasonable inquiry.
3. A Challenge to the Foreign National Spending Ban: Bluman v. FEC. — The above-mentioned provisions were challenged on First Amendment grounds in Bluman v. FEC.
The plaintiffs, Benjamin Bluman and Asenath Steiman, were Canadian and Canadian Israeli citizens living in the United States on temporary work visas.
Bluman sought to make contributions to federal and state campaigns and to print and distribute flyers supporting President Obama’s reelection; Steiman wanted to contribute to federal campaigns, the National Republican Senatorial Committee, and the Club for Growth, an independent advocacy organization.
Then-Judge Brett Kavanaugh, writing for a three-judge panel of the U.S. District Court for the District of Columbia, acknowledged that “foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do,”
but nevertheless, the “government may exclude foreign citizens from activities ‘intimately related to the process of democratic self-government.’”
This is because “the ‘exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition.’”
Concluding that political contributions and express-advocacy expenditures are integral to the process of democratic self-government, the court upheld the foreign national spending ban.
It noted that its holding did not mean Congress could extend the ban to cover lawful permanent residents or bar foreign nationals from other forms of speech, such as issue advocacy, and cautioned that criminal convictions for violating this provision required proof of knowledge of the law.
The plaintiffs appealed, but Judge Kavanaugh had the last word as the Supreme Court summarily affirmed the decision.
C. The First Amendment and the Overbreadth Doctrine
Litigators seeking to challenge a statute as violating the First Amendment may argue that it is unconstitutionally overbroad. Scholars trace the origins of First Amendment “overbreadth doctrine” to the Supreme Court’s 1940 decision in Thornhill v. Alabama.
Overbreadth challenges are unusual in several respects. First, they allow for third-party standing,
relaxing the typical requirement “that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”
Additionally, under overbreadth doctrine, facial challenges to a law or regulation may be brought under a less stringent standard than usual. Normally, a plaintiff “would have to establish ‘that no set of circumstances exists under which [the law] would be valid.’”
A law restricting speech, however, “may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”
The overbreadth doctrine allows parties to bring facial challenges to laws that restrict or chill constitutionally protected speech, out of a recognition “that the First Amendment needs breathing space.”
For this reason, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.”
Acknowledging that this is “strong medicine,” the Court has stated it should be applied “sparingly and only as a last resort.”
Therefore, to be declared facially invalid, a law must be substantially overbroad.
While this concept “is not readily reduced to an exact definition[,] . . . the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”
Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.”
In practice, this analysis often comes down to how prevalent the situations are in which the court believes the law could be applied to prohibit protected speech.
Professor Richard Fallon has argued for a balancing test that weighs the state’s interest in sanctioning a particular kind of speech against the First Amendment interest in avoiding chilling protected conduct, such that “[t]he more weighty the state’s context-specific interest . . . [and] the farther that chilled conduct lies from the central concerns of the First Amendment[,] . . . the more a federal court should hesitate about” invalidating a statute.
Courts can employ various tools to temper this “strong medicine.” They may construe a statute narrowly to avoid overbreadth problems.
They may also sever an overbroad portion of a law from the rest of the statute and strike down only the overbroad provision while upholding the rest.
The Supreme Court has typically been more willing to adopt statute-saving interpretations—thereby upholding laws against overbreadth challenges—in the criminal, rather than civil, context.
Of course, in addition to the facial-challenge route allowed by overbreadth doctrine, a litigant can still argue that application of the law to her would be unconstitutional in the more conventional manner: as applied. This type of claimant “‘attacks the validity of [the statute] not facially, but as applied to his acts of solicitation,’ whereas the person invoking overbreadth ‘may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him.’”
II. Evaluating the Legality of the Trump Tower Meeting
This Part examines the legal questions raised by the June 2016 meeting between members of the Trump campaign and Russian officials by applying the law discussed in Part I. Section II.A examines the scope of the phrase “thing of value” in the context of 52 U.S.C. § 30121. Section II.B considers the constitutional implications of a broad interpretation of the foreign national spending ban.
A. What Does “Thing of Value” Mean?
This section explores the range of activities that could be considered an illegal contribution or expenditure by a foreign national under the statutory language. Section II.A.1 discusses the relevant regulatory definitions. Section II.A.2 looks at past FEC precedent in handling intangible goods or services, such as information. Section II.A.3 examines how “thing of value” is interpreted in other legal contexts. Section II.A.4 considers how canons of statutory interpretation should inform the analysis.
1. Regulatory Definitions. — Under current campaign finance law, foreign nationals are prohibited from making campaign contributions and it is illegal to solicit such a contribution.
But a contribution need not be in the form of money. Rather, a “contribution” can be “[a] 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.”
“[A]nything of value includes all in-kind contributions . . . [u]nless specifically exempted . . . .”
Providing goods or services for free, or for “less than the usual and normal charge”—meaning less than the market price at which goods would be ordinarily purchased or the prevailing commercially reasonable rate for services—constitutes a contribution.
Nearly identical language is used in the definition of “expenditure.”
On its face, therefore, the statutory and regulatory language indicates a very broad application.
2. FEC Precedent. — Indeed, when faced with the question, the FEC has found that the foreign national spending ban covers a broad range of in-kind goods and services. In 1982, in one of the first advisory opinions (AOs) addressing this provision, the FEC held that a foreign national artist could not donate an original work of art to a U.S. Senate campaign for fundraising purposes.
The FEC determined that such a donation would be a “thing of value” provided in connection with an election and would therefore violate the foreign national spending ban.
The FEC has also held that oral communications about valuable, campaign-related information can constitute a contribution. In 1990, a U.S. House of Representatives candidate, Sean Strub, sought guidance on accepting part-time volunteer services from a former rival for the same seat who had decided to drop out.
That rival had commissioned a poll for his own campaign while still a candidate.
The FEC determined that because the rival had commissioned the poll for his own candidacy and not in contemplation of working for the Strub campaign, the rival’s receipt of the poll results was a completion of the original transaction and his newly gained knowledge was therefore not a contribution to the Strub campaign.
However, if the volunteer “impart[ed] poll result information” to anyone involved with the Strub campaign or “use[d] the poll information to advise [the Strub] campaign on matters such as campaign strategy or creating media messages,” then it would be considered a contribution.
Similarly, in a 2001 enforcement matter, the FEC’s general counsel determined that sharing the findings from opposition research with a campaign free of charge constituted an in-kind contribution.
In 2007, the FEC advised a U.S. House candidate that he could not accept, free of charge, printed materials such as “flyers, advertisements, door hangers, tri-folds, [and] signs” from former Canadian political candidates who had previously used those items in their own campaigns.
The FEC determined that this transaction would constitute an illegal contribution, “particularly in light of the broad scope of the prohibition on contributions from foreign nationals.”
The FEC may consider a good or service to be a “thing of value” for the purposes of campaign finance law even when “the value . . . may be nominal or difficult to ascertain.”
In fact, “[t]he lack of a market, and thus the lack of a ‘usual and normal charge,’ . . . does not necessarily equate to a lack of value.”
In some circumstances, however, the FEC has found that foreign nationals may provide uncompensated volunteer services, which fall within the volunteer services exemption
and therefore do not count as a “contribution.” The same FEC AO that found that accepting printed campaign materials from Canadians would be prohibited also concluded that the U.S. House campaign could accept Canadian citizens as volunteers to engage in canvassing and get-out-the-vote activities.
It seems unlikely that what Veselnitskaya offered—as characterized by Goldstone
—could be deemed uncompensated volunteer services. “Political [o]pposition [r]esearch”—what Trump, Jr. believed he was being offered
—is a resource-intensive product that campaigns regularly pay for.
While the market value for such information might be difficult to ascertain, the FEC has indicated that valuation challenges do not prevent a good or service from constituting something of value and thus qualifying as a contribution.
Even if what was shared was simply orally conveyed information about the findings of an opposition research operation, the information could likely constitute a banned contribution under AO 1990-12 if it were used to shape campaign strategy or messaging.
3. Other Legal Contexts. — “Thing of value” is a term that appears in other areas of the law, most notably the federal laws that prohibit giving bribes or gratuities to public officials.
Courts have construed “anything of value” in the bribery context very broadly, covering intangibles such as sex,
expungement of convictions,
a promise of future employment,
reduced police investigation of drug trafficking,
and incremental increases in freedom while incarcerated.
The objective value of a “thing of value” in this context is less relevant than the subjective value attached to it by the recipient.
“Thing of value” also appears in a range of other statutory contexts in which courts have interpreted the language broadly to encompass intangibles, including federal laws prohibiting influencing trustees of employee benefit plans,
false impersonation of an officer of the United States,
conversion of federal property,
certain financial transactions between labor organizations and employer representatives,
mailing threatening communications,
and extortion across state lines.
As early as 1979, the Second Circuit recognized that the phrase “thing of value” could be “found in so many criminal statutes throughout the United States that [the words] have in a sense become words of art” that courts consistently construe broadly.
To be sure, these laws occupy a different legal field than campaign finance, and there are other limitations on their scope, such as the requirements that the “thing of value” be given with corrupt intent
or in exchange for an “official act”
in the case of the bribery statutes. However, Congress should have been aware of these expansive constructions when it enacted an updated version of the foreign national spending ban in 2002 with the same “money or other thing of value” language.
Seemingly the only reason for Congress to include “thing of value” in this part of the statute would be to encompass a broader range of activities within the meanings of “contribution” and “expenditure” than simply spending money.
4. Canons of Interpretation. — When confronted with a statutory term that appears ambiguous, courts will sometimes apply canons of construction to aid in interpretation, such as noscitur a sociis
or ejusdem generis.
However, these canons are probably of limited utility here. The “list” in the foreign national spending ban consists only of “money or other thing of value.”
One could argue that the contextual definition of “thing of value” should be cabined by “money,” but this interpretation is problematic. Because there are only two items here, reading “thing of value” to be constrained by “money” might violate the rule against surplusage, “the presumption that every statutory term adds something to a law’s regulatory impact.”
Moreover, when a statutory “phrase is disjunctive, with one specific and one general category, . . . [t]he absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase.”
Importantly, construing “thing of value” too narrowly here would undermine the regulatory regime established by FECA, since the foreign national spending ban could be easily circumvented if “thing of value” is interpreted to exclude intangible information. Under this reading, a foreign national would be prohibited from providing a cash contribution to a campaign—money which could be used to finance campaign operations, such as conducting polls—but would not be prohibited from providing in-kind support so long as it is intangible information, such as polling data.
B. “Thing of Value” and the First Amendment
This section examines the constitutional implications of a broad interpretation of “thing of value” in the foreign national spending ban context. Section II.B.1 discusses the First Amendment rights at stake. Section II.B.2 considers whether the broad reading renders the foreign national spending ban overbroad by considering potentially problematic hypothetical applications. Section II.B.3 addresses the spending ban’s application to the June 2016 meeting.
1. The Rights at Stake. — Almost immediately after the New York Times first revealed the June 2016 meeting’s existence, a debate commenced over the legality of the events that had occurred. A trio of watchdog groups soon filed a complaint with the FEC and requested that the DOJ launch a criminal investigation.
Several leading campaign finance experts asserted that Trump, Jr.’s actions certainly appeared to be a violation of the prohibition on soliciting foreign national contributions.
However, other commentators expressed skepticism that “thing of value” could be read so broadly in this context
and cautioned that if it could, then the statute was likely unconstitutionally overbroad, infringing on both foreign nationals’ free speech rights and American citizens’ rights to hear foreign nationals speak.
Foreigners do have speech rights protected by the First Amendment. In 1945, noting that “[f]reedom of speech and of press is accorded aliens residing in this country,” the Supreme Court in Bridges v. Wixon blocked a permanent resident’s deportation proceedings that were initiated due to his associations with the Communist Party.
Unlike the petitioner in Bridges, however, Veselnitskaya is not a legal permanent resident.
While foreigners without permanent resident status may still retain some First Amendment protections,
the Court has recognized that the constitutional rights afforded foreigners temporarily in the country may be lesser than those afforded lawful permanent residents.
Moreover, Congress has already distinguished between these groups within this area of the law by excluding lawful permanent residents from the foreign national spending ban.
The Bluman court, in dismissing the plaintiffs’ argument that FECA was underinclusive because it did not prohibit contributions by lawful permanent residents, held that “Congress may reasonably conclude that lawful permanent residents of the United States stand in a different relationship to the American political community than other foreign citizens do,” since they, unlike temporary visitors, “have a long-term stake in the flourishing of American society” and “share important rights and obligations with citizens.”
Bluman acknowledged that foreigners enjoy many constitutional protections, including under the First Amendment,
but nevertheless concluded that the government retains a compelling interest in “limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
Professor Eugene Volokh, a leading First Amendment scholar, contends that the decision should be understood as “limited to the restriction on spending money.”
But this reading is probably too narrow. Bluman’s rationale that the government has a compelling interest in preventing foreign influence over American elections would seem to apply to contributions or expenditures “in connection with a[n] . . . election”
regardless of whether they take the traditional form of money. Indeed, one of the expenditures at issue in Bluman was a plaintiff’s printing and distribution of flyers supporting President Obama’s reelection, not a cash contribution.
This activity would qualify as an “expenditure”
rather than a “contribution” because the flyers were not directly provided to the Obama campaign. Nevertheless, the plaintiff’s flyers are sufficiently analogous to the political opposition research that Trump, Jr. believed he would receive to be relevant to the question at hand.
The plaintiff sought to provide information to the public in the form of a pamphlet in order to influence an American election—much as Trump, Jr. sought to receive information in the form of “[p]olitical [o]pposition [r]esearch” from a foreign national in order to influence an American election
—an activity which was found to be prohibited by the foreign national spending ban in a case upheld by the Supreme Court.
Thus, Bluman should foreclose the foreign national’s First Amendment arguments in the context of the June 2016 meeting.
However, Americans also have a First Amendment right to seek and hear speech by foreigners. In Lamont v. Postmaster General, the Supreme Court held that the Post Office could neither intercept nor detain mail deemed to be “communist political propaganda” nor require the addressee to affirmatively indicate a desire to receive the message before completing delivery.
Even though the speech originated overseas, the government could not impose this sort of affirmative obligation as a prerequisite to receiving the speech because “[t]his requirement is almost certain to have a deterrent effect.”
Thus, in Kleindienst v. Mandel, the Court—even as it upheld the government’s denial of a visa to a Belgian journalist due to his Marxist views—acknowledged the First Amendment interests of the Americans who invited him to hear him speak in person.
Today, it is “well established that the First Amendment protects not only the rights of people to engage in speech but also the right of audiences to receive it.”
2. Applying the Foreign National Spending Ban to Information. — If a court were to strike down the foreign national spending ban as overbroad, it would have to conclude that there is a “realistic danger” that the statute would chill or prohibit constitutionally protected speech in a significant number of situations.
To flesh out this analysis, it is worth considering the foreign national spending ban’s application to several hypothetical scenarios posited by Professor Volokh.
One set of scenarios involves presidential campaign staff seeking to question foreigners to obtain potentially damaging information about their electoral opponent—for example, a Hillary Clinton campaign staffer interviewing a Slovakian student who participated in the Miss Universe pageant about her experiences with Donald Trump; a Bernie Sanders staffer seeking to interview foreigners about rumored misconduct by Hillary Clinton as Secretary of State on a trip abroad; or a Ted Cruz staffer seeking to interview undocumented immigrant employees of Mar-a-Lago about working conditions.
Would FECA prohibit these as illegal solicitations of a foreign contribution?
The answer is probably not. The activities described would most likely fall under the volunteer exemption, at least insofar as the foreigners were not otherwise compensated for their services and did not participate in campaign decisionmaking.
Notably, the volunteer services exemption can apply even in the absence of a formal “volunteering” relationship with the campaign.
In these scenarios, the campaign staffers are soliciting information that the foreign nationals already possess and have acquired in the course of their day-to-day lives without any compensation for doing so. This is unlike, say, a memorandum documenting the fruits of an opposition research operation that required substantial resources to assemble—what Professor Richard Hasen refers to as “compiled information.”
A complicating factor in this analysis could arise if the campaign staff sought to interview foreign nationals who were officials of a foreign government. If the relevant information such foreigners had was obtained in the course of performing their jobs, it is less clear that it was “uncompensated.” Additionally, there may be good reason for the law in this area to treat foreign government officials differently than other foreign nationals.
Several other hypothetical examples involve variations of journalists seeking information from foreign nationals to write about candidates. Professor Volokh considers scenarios such as a New York Times reporter being approached by a Turkish businessman with damaging information about Donald Trump, or a reporter calling contacts in foreign governments and embassies for information they possess on a candidate with a diplomatic background.
If made “for the purpose of influencing” an election, then this “gift” of information could qualify as a prohibited expenditure, which the journalist would be barred from soliciting.
As noted previously, however, the media exemption has been applied quite broadly, especially with respect to persons and institutions that are unquestionably part of the media;
thus, the New York Times reporters Professor Volokh has in mind would almost certainly avoid liability under campaign finance law. If it is less clear that the entity in question is a member of the media, the FEC will apply its multistep analysis to determine whether the media exemption applies—but this, too, has trended toward a broad application of the exemption.
While the media exemption would shield the media entity from liability, it appears unlikely that it would provide the same protection for the foreign national offering the information.
This outcome does raise serious First Amendment concerns. Even if prosecutions of foreign nationals are unlikely—both because of jurisdictional complications for foreigners located abroad and because of journalists’ willingness to protect their sources—there may well be a chilling effect on the provision of information relevant to American elections because foreign nationals may become more reluctant to share information with American journalists. This scenario highlights the tensions inherent in balancing the need to avoid “depriv[ing] [the public] of an uninhibited marketplace of ideas”
while simultaneously “preventing foreign influence over the U.S. political process.”
It is also possible that Bluman already forecloses application of the foreign national spending ban to the scenarios discussed above involving the provision of information to non-campaign recipients. Such transactions would potentially be “expenditures” rather than “contributions” like the June 2016 meeting, at least so long as they were not made “in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign.”
Although Bluman squarely upheld application of the foreign national spending ban to one form of expenditure—express advocacy, which in that case consisted of flyers supporting President Obama’s reelection—Judge Kavanaugh explained that the court interpreted the statute as not barring issue advocacy, “that is, speech that does not expressly advocate the election or defeat of a specific candidate.”
Given that the only expenditure at issue was express advocacy, this interpretation was unnecessary to decide the case and should therefore probably be considered dicta.
It also contrasts with the broad language of the statute itself.
Although the Bluman court did not elaborate on its reasoning on this point, it may well have been motivated by the same overbreadth concerns raised by Professor Volokh to apply a narrowing statutory construction.
Whether or not this is the correct reading of the statute, however, would not affect its application to a situation like the June 2016 meeting, where the recipient of the information is the campaign itself.
For the reasons discussed above,
the key interest at stake is likely to be the American audience’s First Amendment right to receive information about candidates in American elections, rather than the foreign national’s First Amendment right to make political speech. Whether the foreign national spending ban would chill enough speech to be considered substantially overbroad if construed to prohibit soliciting potentially incriminating information about political candidates is a difficult question. Thus, the executive, legislative, and judicial branches should consider taking steps to clarify or modify the law’s application. When doing so, these institutions could keep in mind Professor Fallon’s forthright balancing framework, which he acknowledges “has an irreducible component of policy”: weighing the governmental interest in preventing foreign influence over American elections against the interests of American citizens in learning and gathering information about political candidates.
3. Applying the Foreign National Spending Ban to the June 2016 Meeting. — To date, the public reporting and testimony of the participants in the June 2016 meeting indicate that no physical documents were exchanged and that the conversation was limited to issues surrounding the Magnitsky Act, rather than damaging information about Hillary Clinton.
Thus the potential violation of the foreign national spending ban would probably be based on what Trump, Jr. believed he would be receiving by attending the meeting—what he solicited,
as opposed to what he in fact received. And Trump, Jr. says he expected to receive “[p]olitical [o]pposition [r]esearch”
that was described to him as “official documents and information that would incriminate Hillary [Clinton].”
On balance, the First Amendment rights at stake in this scenario should not trump the foreign national spending ban enacted by Congress. Opposition research, whether conducted directly by campaign staffers or purchased from professional research firms, is an important element of modern American political campaigns.
The information unearthed has value to campaigns, demonstrated by their willingness to pay for the services of professional researchers.
Professor Volokh and other commentators raise worthwhile concerns about the range of activities potentially covered by a broad interpretation of “thing of value.”
Yet it is also worth considering the consequences of too narrow an interpretation. Clearly, the spending ban prohibits a foreign national from making a cash contribution to a campaign,
money which would then be used to fund campaign activities, including opposition research. But if “thing of value” does not encompass opposition research, then a foreign national could effectively circumvent the ban by simply providing this service in-kind—and campaigns could freely solicit such services, including from foreign governments and intelligence agencies, thereby undermining the purpose and efficacy of federal campaign finance law.
Considering the “thing of value” at issue here—the “[p]olitical [o]pposition [r]esearch” or incriminating “official documents or information” that Trump, Jr. believed he would be receiving—helps ground this question in the compelling governmental interest identified in Bluman: “limiting the participation of foreign citizens in activities of American democratic self-government, and . . . thereby preventing foreign influence over the U.S. political process.”
Bluman explains that “[w]hen an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government.”
Providing opposition research on a political opponent—which likely would have required the expenditure of resources to assemble—directly to a political campaign should be understood as such an act “directly targeted at influencing the outcome of an election.”
The compelling interest identified in Bluman should therefore justify the burdens on speech imposed by the foreign national spending ban in a scenario such as the June 2016 meeting, in which a campaign solicits political opposition research from a foreign national.
III. Next Steps: Courts, the FEC, and Congress
This Part proposes new approaches courts, the FEC, and Congress can employ to resolve the constitutional and policy concerns raised by a broad reading of the foreign national spending ban. Section III.A considers narrowing constructions courts could apply to avoid striking down the ban if they consider a broad reading substantially overbroad. Section III.B discusses steps the FEC could take to clarify application of the foreign national spending ban. Section III.C considers legislative changes that could improve this area of the law.
A. Judicial Approaches
Section III.A.1 discusses narrowing constructions courts could apply to the foreign national spending ban to avoid applications that pose constitutional problems. Section III.A.2 proposes a framework for balancing the competing interests at stake.
1. Narrowing Constructions. — One method by which courts avoid administering the “strong medicine” of striking down a law for being unconstitutionally overbroad is to construe it narrowly so as to reduce the number of situations in which constitutionally protected speech is chilled.
Nevertheless, courts are not legislatures and cannot simply rewrite legislation as they see fit.
In theory, one approach to limiting the law’s application might be to focus on foreign governments and agents thereof, or to narrow the ban on solicitation from covering any person to solely agents of political campaigns. But terms such as “foreign national,” “person,” and “solicit” are clearly defined, leaving very little ambiguity or room for alternative constructions.
Courts might then focus instead on constraining the scope of the term “thing of value” itself, perhaps by requiring there to be an existing market upon which a good or service is commercially available and sold for it to qualify as a “thing of value.” While the FEC has previously suggested that “a lack of a market . . . does not necessarily equate to a lack of value,” that language comes from a footnote in a general counsel’s report rather than a formal decision by the commissioners.
The fact that the regulatory definition of “anything of value” references a departure from the “usual and normal charge” seems to presuppose the existence of some kind of market, even if the good or service is not something that is sold frequently.
Such a definition would probably still cover the June 2016 meeting, since opposition research—which Donald Trump, Jr. says he believed he would be receiving—is frequently purchased by campaigns.
It might exclude, however, the broadest, fully subjective constructions of “thing of value,” which courts have applied in other statutory contexts, encompassing “things” like apologies.
Even with a broad definition of “thing of value,” courts could look to other elements of the foreign national spending ban to avoid unconstitutional applications. Some of the more potentially problematic scenarios Professor Volokh posited involved communications between foreigners and journalists.
These scenarios involve “expenditures” rather than “contributions,” since the recipient of the “thing of value,” the journalist, is not a campaign or political committee—nonetheless, expenditures are still prohibited by the foreign national spending ban.
Yet the law defines an expenditure as being “made by any person for the purpose of influencing any election for Federal office,”
and it is not clear that simply discussing damaging information about a candidate would necessarily qualify. Furthermore, criminal penalties in this context require “knowing and willful” violations.
Courts could strictly interpret these additional elements even while maintaining a broad construction of “thing of value.” This would mirror the approach taken in other areas of the law involving the same phrase, where “thing of value” is understood broadly but other elements are considered narrowly.
2. Balancing Competing Interests. — Courts might also view potential violations of the foreign national spending ban as residing on a continuum that considers when the following two elements are strongest and weakest: (1) the government’s interest “in limiting the participation of foreign citizens in activities of American democratic self-government . . . [to] prevent[ ] foreign influence over the U.S. political process”;
and (2) the First Amendment interests in protecting speech. This approach would reflect Professor Fallon’s “forthright judicial balancing” framework for questions of overbreadth.
One dimension would consist of the nature of the foreign “speaker.” When the foreign national providing a “thing of value” is a principal or agent of a foreign government, the government’s interest in regulating speech is likely strongest because this is when the concerns regarding foreign influence articulated in Bluman should be greatest. Considering the speaker’s relationship with a foreign government would be in keeping with the history and text of the statute, which originated with the 1966 FARA Amendments and continues to define “foreign national” with reference to FARA’s definition of “foreign principal.”
However, such a consideration would need to consist of a fact-based, case-by-case inquiry for courts, rather than rote application of a statutory definition, since in many countries, entities can be under de facto government control without obvious formal relationships or statuses.
Another dimension could be the nature of the solicitor of a foreign national contribution and the solicitor’s relationship to a political campaign. The compelling interest justifying the foreign national spending ban—“namely, preventing foreign influence over the U.S. government”
—is likely strongest when the solicitor is a member or agent of a campaign and may go on to serve in that government. When the foreign speech is directed at, say, a journalist, rather than a campaign, the fear of foreign influence over government officials and policy may be lessened.
Much remains unknown about Veselnitskaya’s relationship with the Russian government, but given what is known about the June 2016 meeting’s timing and the context of the broader Russian influence operation during the 2016 presidential campaign,
it seems plausible that the June 2016 meeting would fall on the more searching side of the spectrum. Similarly, while Donald Trump, Jr. did not hold an official title with the Trump campaign, he was deeply involved in the campaign’s activities
and also invited Paul Manafort and Jared Kushner, two senior campaign officials, to participate.
Thus, with respect to the June 2016 meeting, both factors in this framework weigh in favor of the governmental interest at stake.
B. Regulatory Approaches
The FEC should consider clarifying some gray areas that remain in the application of the foreign national spending ban. One such area is the scope of the volunteer services exemption vis-à-vis the spending ban. In recent years, the FEC has found an increasing range of foreign election-related activities to be covered by the volunteer exemption.
Indeed, the volunteering exemption is a key reason the foreign national spending ban would probably not reach many of the troubling hypotheticals proposed by Professor Volokh.
Therefore, if the exemption itself were construed too narrowly, it might mean a much broader range of speech is prohibited by the foreign national spending ban, such that the ban could become substantially overbroad.
While there are circumstances that clearly do or do not fall under the umbrella of uncompensated volunteer services, exactly where the line is drawn is uncertain. This difficulty is exemplified by the FEC’s apparent inconsistency and somewhat tortured attempts to distinguish its 1982 advisory opinion prohibiting a foreign artist from donating an original work of art to a campaign fundraiser
from later opinions interpreting the intersection of the foreign national spending ban and volunteer services exemption,
before finally giving up and superseding the 1982 opinion in 2015.
The 2015 AO was quite broad, holding that foreign volunteers could develop website code and logos for a political action committee (PAC) on an “ad hoc, continuous basis” given that the foreigners would use their own equipment, pay their own out-of-pocket expenses, would not be compensated by anyone, and would not participate in any of the PAC’s operational decisions.
The FEC held that because this activity fell within the volunteer exemption, it did not count as a “contribution” and therefore did not run afoul of the foreign national spending ban.
The FEC made this determination even though the PAC would obtain intellectual property rights in the items created by the volunteers, since the PAC would “receive only benefits that result directly and exclusively from the provision of volunteer services by foreign nationals.”
This determination raises questions about prior FEC opinions, such as its 2007 ruling that a U.S. congressional candidate could not receive printed campaign materials free of charge from Canadian political candidates.
If the Canadian campaign is considered the foreign “person”—and it presumably paid the costs associated with producing the campaign materials itself—why would the reasoning of the 2015 AO not similarly apply? The answer cannot simply be the distinction between a tangible good (the printed materials) and an intangible service (developing website code), since AO 2014-20 explicitly rejects this reasoning.
As the FEC’s understanding of the scope of the volunteer exemption has expanded, greater clarity is needed with respect to its interaction with the foreign national spending ban, “particularly in light of the broad scope of the prohibition on contributions from foreign nationals.”
The relationship between the foreign national spending ban and the media exemption could also use clarification. Because an expenditure is defined in part as “anything of value” made for the purposes of influencing an election,
information about a candidate provided by a foreign national to a news organization could probably qualify. The news organization itself would likely be protected from any liability based on the media exemption, but it is not clear the same protection would extend to the other party to the transaction, the foreign national.
The result might well be to “chill[ ] political speech, speech that is central to the meaning and purpose of the First Amendment.”
Just as the FEC enacted the substantial assistance ban as “necessary” to enforcement of the ban on solicitation of foreign contributions,
the agency should also consider a rule clarifying that the provision of information to a media organization is exempt from the foreign national spending ban as “necessary” for implementing the media exemption pursuant to its authority under 52 U.S.C. § 30107(a)(8).
C. Legislative Considerations
Congress might also consider legislative changes to achieve its intended goals more effectively than it has done so far through the existing regime. Like the FEC, it could address the potential chilling effect on foreign sources who provide information about political candidates to media organizations either by enacting legislation that directly extends the media exemption to the foreign source or through a federal reporters’ privilege statute, which would probably have the same effect.
More broadly, however, an oddity arises in applying the foreign national spending ban to situations like the June 2016 meeting involving the provision or solicitation of in-kind contributions such as opposition research. The campaign finance violation could seemingly be avoided by simply paying the “usual and normal charge” for any goods or services received. The FEC itself suggests this work-around in the 2007 AO discussed above, which disallowed a congressional candidate from receiving printed materials used in a Canadian election free of charge but explained that the candidate could legally use campaign or personal funds to purchase the materials instead.
If personal funds were used, they would then constitute a legal, in-kind contribution to the campaign.
This result is mostly unobjectionable in the innocuous context of a congressional candidate wanting to learn from Canadian counterparts, but more difficult to countenance in the context of something like the June 2016 meeting. Can it really be that Trump, Jr. could have avoided liability by offering to pay the usual and normal charge for whatever information Veselnitskaya had to offer? The answer, seemingly, is yes, at least as it pertains to this particular question of campaign finance law, since the information would no longer be considered a contribution.
Yet this appears to be at odds with the government interest furthered by the foreign national spending ban and recognized in Bluman—“preventing foreign influence over the U.S. government.”
It defies common sense to think that whatever influence might be gained by providing such information is diminished by the campaign paying for it, even setting aside the practical challenges inherent in identifying the market value of discrete pieces of opposition research to determine whether a campaign finance violation occurred.
A law prohibiting all contacts between foreigners—or even just representatives of foreign governments—and campaigns would pose substantial First Amendment problems and would likely be bad policy.
However, the distastefulness of the June 2016 meeting seems to stem in part from its clandestine nature and the evasive explanations provided by members of the Trump campaign when it was publicly revealed over a year later.
Perhaps, then, Congress might consider enacting a robust disclosure regime for foreign contacts during a campaign. This sort of disclosure is already required for federal officials seeking a security clearance;
it could be extended to federal campaigns and incorporated into the campaign finance reporting already required to be submitted to the FEC, so that campaigns would be forced to publicly acknowledge foreign contacts in not-quite-real time.
Such a proposal is far from a perfect solution given the challenges involved in ensuring compliance and the reality that the possibility of inappropriate discussions or exchanges would remain. However, the increased public and media scrutiny on such contacts that might result from disclosure may help deter undesirable contacts and further the governmental interest in reducing foreign influence.
Although the fear of foreign influence in American elections is as old as the U.S. constitutional system itself, it has received renewed attention following the events of the 2016 election. Much of the current language in campaign finance law that addresses this issue dates back to the 1970s but has not historically received significant attention. Most of the legislative debate around these provisions has centered on the definition of “foreign national”—particularly, whether the definition should include legal permanent residents, or whether it would inadvertently chill or prohibit the speech of American citizens living abroad or employed by foreign-owned corporations. Relatively little attention has been given to the potential scope of speech that could be considered a prohibited contribution or expenditure when such terms encompass “anything of value.” In the age of social media, as the lines demarcating traditional categories like “media” and “nonmedia” continue to blur and campaigns increasingly revolve around viral posts rather than expensive broadcast advertisements, these questions will become only more urgent.