Federal Election Commission Main Page
September 17, 1987
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1987-25
Ricardo A. Otaola
3101 New Mexico Avenue, N.W.
Washington, D.C. 20016
Dear Mr. Otaola:
This responds to your letter of July 21, 1987, requesting an
advisory opinion concerning application of the Federal Election
Campaign Act of 1971, as amended ("the Act"), to uncompensated
volunteer services performed by a foreign national in a 1988
presidential campaign.
Your letter states that you are a Venezuelan citizen and
have been in the United States for the past eight years as a
student of international relations and international business.
You indicate that you have developed a great interest in American
politics and the electoral process in general. While you remain
in the United States, you would like to work, without any
compensation, as a volunteer for a 1988 presidential campaign.
You ask whether such activity is permitted under the Act.
As a foreign national you are prohibited, either directly or
through any other person, from making a "contribution of money or
other thing of value...in connection with an election to any
political office... ." 2 U.S.C. SS 441e. You state, however, that
you intend to work solely as an uncompensated volunteer for a
1988 presidential candidate. Volunteer services by individuals
are specifically exempt from the definition of "contribution"
contained in the Act. The statutory language provides that "the
term 'contribution' does not include -- (i) the value of services
provided without compensation by any individual who volunteers on
behalf of a candidate or political committee." 2 U.S.C.
SS 431(8)(B)(i). Your work as a volunteer without compensation
would not, therefore, result in a contribution to a candidate
because the value of uncompensated volunteer services is
specifically exempted from the definition of contribution under
the Act.*/ See, e.g., Advisory Opinion 1984-43 (donation of
corporate officer's volunteer services to appear in a candidate's
TV spot not considered a contribution) and Advisory Opinion 1982-31
(a student may volunteer uncompensated services to a campaign
without making a contribution).
This conclusion is consistent with the statutory changes
Congress has made with respect to foreign nationals. The foreign
national prohibition was originally enacted as 18 U.S.C. SS 613 in
1966 when Congress amended the Foreign Agents Registration Act of
1938 ("FARA"). 80 Stat. 244 (1966). At that time the term
"contribution" was not subject to any statutory definition in
either Title 18 or in FARA. See 18 U.S.C. SS 591(1970) and 80
Stat. 244 (1966). In the 1976 amendments to the Act, however,
Congress repealed 18 U.S.C. SS 613 and reenacted the foreign
national prohibition as Section 324 of the Act, codified at
2 U.S.C. SS 441e. 90 Stat. 486, 493, 496(1976). In doing so,
Congress provided that the prohibition was governed by the
definitions, and their exemptions in 2 U.S.C. SS 431. Although it
amended the statute in 1971, 1974, 1976, and 1979, Congress never
expanded the Act's definition of contribution, or restricted the
Act's exemptions from such definition, for purposes of the
foreign national prohibition. In contrast, the prohibition has
always been applicable in connection with any election whether
Federal, state, or local. See 11 CFR 110.4(a)(1). Thus, by
repealing and reenacting the foreign national prohibition as part
of the Act in 1976, and by amending the definitions which govern
interpretation of the term "contribution" as used in the Act,
*/ While this may appear to be a discrepancy in the Act, it
seems that Congress was not only aware of this provision but
chose not to correct its potential effect. Representative Bill
Frenzel stated that
...these loopholes make ambiguous the prohibitions on
contributions in the name of another and contributions
by unions, corporations and foreign nationals. Since
the exemptions apply to these sections as well, if the
Committee bill passes with the loopholes intact, the
courts may decide that certain types of donations by
unions, corporations and foreign nationals are
permissible.
H.R. Rep. No. 93-1239, 93rd Cong., 2d Sess., at 141(1974),
reprinted in Legislative History of Federal Election Campaign Act
Amendments of 1974, at 775 (1977).
Congress has limited the scope of the foreign national
prohibition as to the meaning of the term "contribution," while
retaining the aspect of the prohibition that extends to all
elections.
The Commission has concluded herein that because
uncompensated volunteer services are not considered to be a
contribution under the Act, any individual, including a foreign
national, may volunteer his or her uncompensated services to a
candidate without making a contribution to that candidate. The
Commission considered the extent to which this conclusion
conflicts with Advisory Opinion 1981-51, and by a vote of 2-4
declined to supersede or overrule Advisory Opinion 1981-51.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth in
your request. See 2 U.S.C. SS 437f.