Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
August 20, 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2004-26
Jan Witold Baran, Esq.
Wiley Rein & Fielding LLP
1776 K Street, NW
Washington, DC 20006
Dear Mr. Baran:
This responds to your letter, dated July 7, 2004,
requesting an advisory opinion on behalf of Representative
Gerald C. Weller and his fianc‚e, Zury Rios Sosa, concerning
the application of the Federal Election Campaign Act of
1971, as amended (the "Act"), and Commission regulations to
the participation of a foreign national in the activities of
two affiliated campaign committees and a nonconnected
multicandidate committee on a volunteer basis.
Background
Representative Weller is a Member of the United States
House of Representatives and is currently a candidate for re-
election. Representative Weller maintains two affiliated
campaign committees - Jerry Weller for Congress, Inc. and
Gerald C `Jerry' Weller for Congress - and is the honorary
chair of Reform PAC, a nonconnected multicandidate committee
(collectively, the "Committees"). On July 6, 2004,
Representative Weller became engaged to be married to Ms.
Rios Sosa, who is a member of the Guatemalan legislature.1
Ms. Rios Sosa is not a citizen of the United States and does
not have permanent resident status in the United States.
You state that Ms. Rios Sosa plans to remain a citizen of
Guatemala and does not intend to apply for United States
citizenship or for admission for permanent residence.
Question Presented
May Ms. Rios Sosa participate in the activities of the
Committees, including decision-making, on a volunteer basis?
Specifically, may Ms. Rios Sosa (1) attend Committee events;
(2) participate in Committee events by speaking or by
soliciting funds and support for the Committees; (3)
participate in meetings with Representative Weller and
Committee personnel regarding Committee events or political
strategy; and (4) accompany Representative Weller to the
fundraising and campaign events of other political
committees, provided she has not made a contribution of her
personal funds in order to attend?
Legal Analysis and Conclusions
Your request raises two separate legal issues. First,
would Ms. Rios Sosa's proposed activities result in a
prohibited foreign national contribution to the Committees,
under 2 U.S.C. 441e(a)(1)(A), or, in the alternative, would
they come within an exception for "volunteer activities"?
Second, would Ms. Rios Sosa's proposed activities constitute
participation by a foreign national in the decision-making
of the Committees, which is prohibited by 11 CFR 110.20(i)?
1. Foreign National Volunteer Activity
The Act and Commission regulations prohibit foreign
nationals, directly or indirectly, from making a
"contribution or donation of money or other thing of value .
. . in connection with a Federal, State, or local election."
2 U.S.C. 441e(a)(1)(A). See also 11 CFR 110.20(b).
However, the Act and Commission regulations also provide
that "[t]he term `contribution' does not include the value
of services provided without compensation by any individual
who volunteers on behalf of a candidate or political
committee." 2 U.S.C. 431(8)(B)(i). See also 11 CFR 100.74.
In Advisory Opinion 1987-25, the Commission addressed
the issue of whether uncompensated volunteer services
provided by a foreign national constituted a prohibited
contribution. The Commission concluded that a foreign
student's work for a campaign without compensation would not
result in a contribution because the value of the
uncompensated volunteer services was specifically exempt
from the Act's definition of contribution.2 Similarly, the
Commission concludes that Ms. Rios Sosa's performance of the
proposed campaign-related activities you describe for the
Committees without compensation would constitute exempt
volunteer activity. Thus, these proposed volunteer
activities would not result in the making or receipt of a
prohibited contribution under the Act.
2. Foreign National Participation in Decision-Making
Commission regulations implementing 2 U.S.C. 441e
prohibit foreign nationals from participating in the
decisions of any person involving election-related
activities. See 11 CFR 110.20(i). Such participation in
decisions includes directing, dictating, controlling, or
directly or indirectly participating "in the decision-making
process of any person, such as a corporation, labor
organization, political committee, or political organization
with regard to such person's Federal or non-Federal election-
related activities, such as decisions concerning the making
of contributions, donations, expenditures, or disbursements
in connection with elections for any Federal, State, or
local office or decisions concerning the administration of a
political committee." Id. This broad prohibition
encompasses foreign national involvement in the management
of any political committee, and its decisions regarding its
receipts and disbursements in connection with Federal and
non-Federal elections. Explanation and Justification for
Regulations on Contribution Limitations and Prohibitions, 67
Fed. Reg. 69946 (Nov. 19, 2002). Therefore, Ms. Rios Sosa
must not participate in Congressman Weller's decisions
regarding his campaign activities. She must also refrain
from managing or participating in the decisions of the
Committees.
With regard to the four types of activities about which
you inquire, the Commission concludes that Ms. Rios Sosa
may, as an uncompensated volunteer, take part in these
Committee activities as long as she does not participate in
the Committees' decision-making processes. First, the
Commission concludes that Ms. Rios Sosa may attend Committee
events, such as campaign rallies, debates, other public
appearances, and fundraisers. Second, as an uncompensated
volunteer, she may solicit funds from persons who are not
foreign nationals. As an uncompensated volunteer, Ms. Rios
Sosa may also give speeches at Committee events. Third, Ms.
Rios Sosa may attend meetings with Representative Weller and
Committee personnel regarding Committee events or political
strategy. She may not, however, be involved in the
management of the Committees.
Finally, Ms. Rios Sosa may accompany Representative
Weller and attend fundraising and campaign events of other
political committees, provided she does not make a
contribution of her personal funds in order to attend.
However, her participation in such events is subject to the
same limitations detailed above that govern her
participation in events of the Committees.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your
request. See 2 U.S.C. 437f. The Commission emphasizes
that, if there is a change in any
of the facts or assumptions presented, and such facts or
assumptions are material to a conclusion presented in this
advisory opinion, then the requestor may not rely on that
conclusion as support for its proposed activity.
Sincerely,
(signed)
Bradley A. Smith
Chairman
Enclosures (AOs 1987-25 and 1981-51)
_______________________________
1 According to a press release published on Representative
Weller's website, he and Ms. Rios Sosa plan to marry after
the upcoming November election. See
http://weller.house.gov/News/DocumentSingle.aspx?DocumentID=
4510 (visited on July 26, 2004).
2 Compare Advisory Opinion 1987-25 with Advisory Opinion
1981-51 (concluding that the Act prohibited an artist who
was a foreign national from donating his uncompensated
services as an artist to create an original work of art for
a political committee's use in fundraising).