Extreme Mortman points to a fundraising concert scheduled for April 9, and suggests that — if John is performing for free — this may be an illegal foreign contribution by John to the Clinton campaign. Is that so?
I’m not an expert in this corner of federal election law, but I think that John and Clinton are just fine, even if he’s performing for free or for well below market rates (a factual assumption I will make for purposes of this post). Federal law does ban contributions by foreign nationals, but “contribution” is defined to exclude volunteer activities (see FEC Adv. Op. 2007-22, FEC Adv. Op. 2004-26, and FEC Adv. Op. 1987-25; see also FEC. Adv. Op. 2007-08, which takes a similar view). Likewise, 11 C.F.R. § 100.74 expressly provides, “The value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee is not a contribution.”
The one possible twist is that FEC Adv. Op. 1981-51 specifically held that a foreign artist was not allowed to create a limited-edition artwork that would then be distributed for free by the campaign. FEC Adv. Op. 1987-25 expressly declined to reverse 1981-51; the FEC Foreign Nationals brochure expressly notes that there’s some possible tension between the two. But in light of the more recent opinions (especially 2007-22), and of 11 C.F.R. § 100.74, it seems likely that the legal distinction is between services — which would include even valuable performances — and goods, such as tangible artworks. John’s performance seems to fall on the permissible volunteer services side of the line.
Thanks to InstaPundit for the pointer; and thanks to Allison Hayward, Alex DeMots, and Steven Sholk for their help.
UPDATE: A Clinton campaign press release quotes an FEC spokesman as saying the same: “I did not intend to convey in my conversation with the Washington Times reporter that there is anything unlawful about Elton John performing in a concert to raise money for a US presidential candidate. The Advisory Opinion 2004-26 is clear in the circumstances of the request that foreign nationals may volunteer and may even solicit contributions from non-foreign nationals, provided they are not soliciting other foreign nationals.”
Thanks to a commenter for the pointer.