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.

Extreme Mortman quotes my earlier post, and follows up with a response from Richard Andrews:

If the FEC is determined to sit on its hands about this, don't see much that can be done.

However, note that the 'No' decision in Opinion 1981-51 was specifically about the highly valuable services of an artist being used for fund raising, while ALL the other 'Yes' Opinions noted are about the everyday acceptance of essentially de minimus value munchkin services at the very bottom of a campaign -- the ones that, if you had to pay even minimum wage for them, you would just do without (the same attitude that causes campaigns to pretend their employees are 'contractors', to avoid paying unemployment compensation tax) -- envelope licking, driving folks around, etc.

The FEC seems rather determinedly of two minds about this -- it is bizarre for Opinion 1987-25 to have expressly stated that it was NOT over-ruling Opinion 1981-51, when they flatly contradict one another. Guess they just want to make it up as they go along.

I had thought of this distinction between high-value and low-value volunteer services, but I don't think it's right. Recall that contributions by Americans to campaigns are also limited -- they're just capped at $2300 ($1000 until not long ago), rather than entirely forbidden as to foreigners. Clearly the value of a Chuck Norris or Barbra Streisand performing at a campaign event is over $2300. Yet that's allowed; why?

Because the volunteer services exception is not limited to low-value services, but includes all volunteer servics. FEC Advisory Opinion 2007-08, which I cited to, expressly takes this view as to volunteer performances by high-value entertainers at candidate events. And if such high-value volunteer help isn't a "contribution" and is thus exempt from the cap on donations by everyone, then it isn't a "contribution" and is thus exempt from the ban on donations by foreigners. That's the logic of U.S. election law, as reflected in the sources I mentioned in my earlier post.

The one possible response, I think, is that the federal law banning foreign contributions covers "contributions or donations," and not just "contributions." But I checked with several election lawyers on this, and their view is that the addition of "or donations" was understood as covering soft money, not as prohibiting volunteer services that would otherwise be allowed. Certainly nothing in the term "donation" suggests such a prohibition, or a distinction between high-value services and low-value services (and recall that the FEC has expressly said that volunteer services by foreigners are generally allowed).