FEC Chair At Odds With Justice Position on Foreign Campaign Help

  • Weintraub drafts rule after Trump request to Ukraine leader
  • Commission currently lacks quorum to consider her proposal

The chairwoman of the Federal Election Commission has drafted a regulation to clarify that a candidate asking for information from a foreign country could amount to an illegal campaign solicitation.

Ellen Weintraub (D) proposed such a rule Sept. 26 following the whistleblower complaint that President Donald Trump sought to get Ukrainian President Volodymyr Zelenskiy to investigate former Vice President Joe Biden, who’s seeking the 2020 Democratic presidential nomination, and his son Hunter Biden.

The law bars a U.S. candidate from asking for money or “anything of value” from a foreigner, but there are few precedents defining that phrase. The Justice Department determined that Trump’s request did not amount to a campaign solicitation because no money was involved.

“The Commission has recognized the ‘broad scope’ of the foreign national contribution prohibition and found that even where the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned,” Weintraub’s proposal said.

She said previous commission decisions supported the concept that asking foreigners for help is especially problematic.

Photo by Alex Wong/Getty Images
Ellen Weintraub

Justice Department officials came to a different conclusion when they examined the whistleblower complaint now the focus of a House impeachment inquiry. The department said Trump didn’t violate the law because an investigation of Biden wasn’t a quantifiable thing of value for the president’s campaign, according to reports by the the Washington Post and others.

FEC Lacks Quorum

Weintraub wants her proposal to be considered at the commission’s next open meeting. But that may not happen for some time. The FEC currently lacks a quorum of at least four commissioners needed to approve any new rule.

But the chairwoman said her proposal simply restated conclusions from previous commission actions in advisory opinions and enforcement cases. These included a 2007 advisory opinion stating a U.S. candidate couldn’t accept free election materials, like flyers and other small pieces of advertising, from Canadians.

Caroline Hunter, a Republican FEC commissioner who often disagrees with Weintraub, said the chairwoman’s proposal is “useless and misleading” and noted she doesn’t have a quorum to adopt a rule. “Once again, she is misusing her official position for her own ends,” Hunter said in an emailed statement.

The Justice Department’s assertion that a foreign government’s investigation of Trump’s political opponent would not be of monetary value conflicts with conclusions by Special Counsel Robert Mueller in his probe of Russian interference in the 2016 election. His report found that “candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute” an illegal foreign campaign contribution, according to Paul S. Ryan, an attorney with the watchdog group Common Cause.

Ryan has filed a complaint with the Justice Department and the FEC alleging that Trump’s conversation with the Ukrainian leader violated the ban on soliciting a foreign campaign contribution.

Ryan also pointed to a federal appeals court decision written by now-Supreme Court Justice Brett Kavanaugh that broadly interpreted the ban on foreigners participating in U.S. elections.

The 2011 decision by the U.S. Court of Appeals for the D.C. Circuit in Bluman v. FEC upheld the long-standing ban on foreign contributions and spending in U.S. elections, saying foreign citizens may be excluded “from activities that are part of democratic self-government in the United States.” The Supreme Court affirmed that decision.

Bright Line

Other election lawyers disagreed, including Eric Wang, a former FEC staffer for Hunter. He wrote in the Daily Caller that the landmark 1976 Supreme Court case Buckley v. Valeo narrowed the definition of a campaign contribution and held “there must be bright-line, objective parameters of how we regulate” under campaign finance law.

In the Trump-Zelenskiy call, “it does not appear that Trump explicitly (or even implicitly) tied the request for an investigation of Biden’s son to his reelection” so there is no objective evidence that something was being solicited or provided to benefit Trump’s campaign, Wang said. Such evidence is required, he said, or “official actions by elected officeholders that they believe benefit society, but that also may benefit their reelections, could be prohibited.”

Wang now works with the nonprofit Institute for Free Speech, a critic of campaign finance regulation.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bgov.com

To contact the editors responsible for this story: Bennett Roth at broth@bgov.com; Loren Duggan at lduggan@bgov.com