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Interpretative Opinion 97-13: Contribution Limits

February 11, 1998

The Honorable Paul Strauss
United States Senator for the District of Columbia
One Judiciary Square
441-4th Street, NW
Suite 1000-S
Washington, DC  20001

Re: Contributions to Statehood Funds

Dear Senator Strauss:

This responds to your request for an opinion concerning permissible contributions to a Statehood Fund.  Specifically, you ask whether contributions, pursuant to DC Code §1-113 ( DC Law 8-135), may be accepted from an individual or entity that is not a United States citizen.

DC Code § 1-113(g)(1) establishes that a Representative or Senator may “. . . solicit and receive contributions to support the purposes and operations of the Representative’s or Senator’s public office.”  DC Code § 1-113(f)(4) provides that a Representative or Senator “ . . .  may expend funds donated by private sources for public purposes related to the achievement of statehood” in accordance with subsection (g) of this section.  Further, DC Code §§1-113(g)(3) and (4) authorize the Office of Campaign Finance to monitor the record keeping requirements of the DC Campaign Finance Act, as amended, which apply to the quarterly filings of contributions and expenditures relative to Statehood Funds.

District of Columbia statutes governing this issue  appear silent on the propriety of accepting contributions from non-U.S. citizens in connection with DC Statehood.  However, federal regulations provide limited guidance with respect to this issue.  Specifically, 11 C.F.R. § 110.4(a)(1) states “[a] foreign national shall not directly or through any other person make a contribution, or an expenditure, or expressly or impliedly promise to make a contribution, or an expenditure, in connection with a convention, a caucus, or a primary, general, special, or runoff election in connection with any local, State, or Federal public office (emphasis added).  Further, pursuant to 11 C.F.R. §§ 110.4(a)(4)(i) and (ii), the term, foreign national, means “a foreign principal, as defined in  22  U.S.C.  611(b)”  or  “an individual who is not a citizen of the United States and who is not lawfully admitted for permanent residence . . .”.  As you will note, these regulations expressly prohibit contributions from foreign nationals to local and federal elections for public office and other enumerated activities related to office, but do not explicitly address the permissibility of acceptance of contributions in connection with ballot measures or Statehood Funds.

Since the issue you raise is one of first impression for the Office of Campaign Finance, we consulted advisory opinions of the Federal Election Commission (FEC), and legislation enacted by the State of California on the subject for further guidance.  Advisory Opinion 1982-10 addresses the issue of whether a corporation that is organized under Delaware law, and that is also a wholly-owned subsidiary of a foreign parent corporation may make contributions in connection with ballot measures under the Federal Election Campaign Act (Act).  The FEC opined that under 22 U.S.C. §611(b), a corporation organized under the law of any state within the United States whose principal place of business is within the United States is not a “foreign national” pursuant to 2 U.S.C. §441(e), thus would not be prohibited from making contributions in connection with ballot measures.

FEC Advisory Opinion 1989-32 responds to the issue of whether it is permissible for a foreign national to contribute to a state ballot measure in the State of California.  Here, the FEC expressed the following: “[t]he Commission has previously recognized the distinction between a candidate-related “election to any political office”, as used in 2 U.S.C. §441(e) and other provisions of the Act, and issue-related ballot initiatives.  The Commission has stated that contributions or expenditures relating only or exclusively to ballot referenda issues, and not to elections to any political office, do not fall within the purview of the Act.”

However, §85320(a) of the California Code states as follows, “[n]o foreign government or foreign principal shall make any contribution, expenditure, or independent expenditure in connection with the qualification or support of, or opposition to, any state or local initiative, recall, or referendum measure.”

Therefore, it is the opinion of the Office of Campaign Finance that District of Columbia law neither expressly allows nor  prohibits contributions from foreign nationals in connection with issue-oriented ballot measures.