October 08, 2019

Ranking Member Klobuchar Requests Additional Information from Federal Election Commission Regarding Foreign Contribution Ban

Klobuchar is the Ranking Member of the Senate Rules Committee with oversight of the Federal Election Commission

WASHINGTON – U.S. Senator Amy Klobuchar (D-MN), Ranking Member of the Senate Rules Committee with jurisdiction over the Federal Election Commission (FEC), requested information from the Commission today regarding how they previously defined a “thing of value” and “anything of value” and to provide information on all past instances in which these were applied for enforcing campaign finance law. The letter, sent to Chair Ellen Weintraub, follows a decision by the Department of Justice (DOJ) that the President did not violate the Federal Election Campaign Act (FECA) after prosecutors reviewed a rough transcript of a July 25 call between President Donald Trump and Ukrainian President Volodymyr Zelensky. A Memorandum of Understanding (MOU) between the DOJ and the FEC stipulates that when the DOJ declines to criminally prosecute a violation, but finds that there is a probable violation, the Department is required to refer the matter to the FEC. Reports indicate that the DOJ did not refer the matter, and on October 2, Klobuchar sent a letter to the FEC requesting further information.

“I write to request further information regarding the Commission’s interpretation and enforcement of 52 U.S.C. § 30121, the Federal Election Campaign Act’s (FECA) ban on foreign contributions to U.S. elections and the solicitation of such contributions. I am requesting additional information to clarify the fact that it is not only wrong - but also illegal - to solicit foreign assistance to diminish a domestic political opponent,” Klobuchar wrote.

“In addition to the information requested on October 2, I respectfully request … any documents relating to communications between the FEC (including any Commissioner or employee) and the Department of Justice (including any officer or employee) regarding any potential violations of 52 U.S.C. 30121 or its implementing regulations by the President, his personal attorneys, the Attorney General, or any other member of the Administration; a formal determination from the Commission as to whether the MOU between the Department and the FEC is active, and the dates of any cases referred to the Commission in the last 15 years; [and] information regarding how the Commission defines a ‘thing of value’ and ‘anything of value’ and any relevant information on recent cases in which the FEC has applied 52 U.S.C. § 30121, or deadlocked on whether or not to apply the ban.”

The full text of the letter can be found below and HERE:

Dear Chair Weintraub:

I write to request further information regarding the Commission’s interpretation and enforcement of 52 U.S.C. § 30121, the Federal Election Campaign Act’s (FECA) ban on foreign contributions to U.S. elections and the solicitation of such contributions. I am requesting additional information to clarify the fact that it is not only wrong - but also illegal - to solicit foreign assistance to diminish a domestic political opponent.

On Wednesday, September 25, the White House released a memorandum of the President’s July 25 call with Ukrainian President Vlodomyr Zelensky in which he solicited a foreign leader to investigate a political rival and indicated that he would direct the Attorney General to coordinate with the Ukrainians in any potential investigation. On the same day, the Department of Justice (DOJ) made a determination that the President did not criminally violate FECA after prosecutors reviewed a rough transcript of the July 25 call between President Trump and Ukrainian President Zelensky.

To be a crime, a FECA violation must have been committed knowingly and willfully and, except for campaign misrepresentations and certain coerced contributions, must have involved at least $2,000 in a calendar year. FECA violations that either: (1) do not present knowing and willful violations, or (2) involve sums below the statutory minimums for criminal prosecution, are handled non-criminally by your agency, the Federal Election Commission (FEC).

Federal law, FEC regulations, and precedent recognize that the foreign contribution and solicitation ban is not limited to contributions and solicitations of money. The law bans soliciting “a contribution or donation of money or other thing of value.” A “contribution” is defined throughout campaign finance law to include “any gift, subscription, loan, advance, or deposit of money or anything of value.” The term “anything of value" includes "the provision of any goods or services without charge," such as "membership lists” and “mailing lists.” In prior cases, the FEC has concluded that “anything of value” includes such things as a state-by-state list of activists, and that polling data provided to a campaign constitutes a "contribution." In the specific context of the foreign-contribution ban, the FEC has concluded that nominal contributions that are difficult to quantify are also prohibited.

Based on these decisions and precedent, the Department of Justice Report On The Investigation Into Russian Interference In The 2016 Presidential Election concluded that “candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply.” The Report also notes that campaigns can be assisted not only by funds, but by information, and that since campaigns frequently pay for opposition research, such information has monetary value.

A Memorandum of Understanding between the DOJ and the FEC stipulates that when the DOJ declines to criminally prosecute a violation, but finds that there is a probable violation, the Department is required to refer the matter to the FEC. Reports indicate that the DOJ did not refer the matter and on October 2, I sent the Commission a letter requesting further information. In addition to the information requested on October 2, I respectfully request the following documents and information by October 18:

  • From July 25, 2019, to the present, any documents relating to communications between the FEC (including any Commissioner or employee) and the Department of Justice (including any officer or employee) regarding any potential violations of 52 U.S.C. 30121 or its implementing regulations by the President, his personal attorneys, the Attorney General, or any other member of the Administration.
  • A formal determination from the Commission as to whether the MOU between the Department and the FEC is active, and the dates of any cases referred to the Commission in the last 15 years.
  • Information regarding how the Commission defines a “thing of value” and “anything of value” and any relevant information on recent cases in which the FEC has applied 52 U.S.C. § 30121, or deadlocked on whether or not to apply the ban.

Thank you for your prompt attention to this important matter.

Sincerely,

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