FEC, CA Law:
Foreigners Can Give to Prop Campaigns
In the wake of my recent post asking gay blogger Andrew Sullivan if he had donated to the No on 8 campaign, and lots of folks informing that foreign nationals couldn't make a contribution to the anti-gay-marriage initiative, a friend in Los Angeles, who was born in Australia, Peter Cashman from the old ACT UP/LA chapter, has helped me better understand what US federal and CA state laws say about foreign nationals making donations to candidates and ballot initiatives.
Let's walk through a few aspects regarding foreigners donating to campaigns, and start with what CA regulations say. This is part of what is on the books:
California Government Code Sections 85300-85321
Article 3. Contribution Limitations
(d) This section shall not prohibit a contribution, expenditure,
or independent expenditure made by a lawfully admitted permanent
California law does not disallow foreign nationals who live in the US from contributing to CA ballot measures, as distinct from those who live "outside" the US who are prohibited.
Despite what the NO ON 8 campaign said on their site it was in fact legal under federal law and California law for foreign nationals living in the US to contribute to this and most other CA ballot measures. From the FEC:
In Advisory Opinion 1989-32, the Commission concluded that although foreign nationals could make disbursements solely to influence ballot issues, a foreign national could not contribute to a ballot committee that had coordinated its efforts with a nonfederal candidate's re-election campaign.
But this is what the No on 8 donations' page said:
Please note that foreign nationals are prohibited from making contributions to this campaign.
More from Cashman:
I saw on the FEC site prior to the election something more user friendly that made it clear that it was OK for resident foreign nationals to contribute to a ballot measure which has been my understanding ever since I have lived in California.
Yes Andrew can donate to a CA ballot measure.
Furthermore in regard to elections as distinct from referenda (ballot measures et al) if he has a green card he can make political contributions to parties or candidates anywhere in the US.
This I did not know - I had come to believe that you had to be a citizen - not so says the FEC - just a lawfully admitted permanent US resident.
I have never seen a ballot campaign in this state that forbade non-citizens from donating as NO ON 8 did.
There is one thing I think Cashman is incorrect about and that is whether Sullivan can donate to CA props. Yes, CA law says a permanent resident can give to campaigns, but Sullivan is not a permanent resident because of our anti-HIV immigration and travel laws.
Sullivan explained his resident status in a column for the Washington Post back in May on the topic of America's immigration regs against HIV positive people:
With great lawyers, a rare O visa (granted to individuals in the arts and sciences), a government-granted HIV waiver and thousands of dollars in legal fees, I have managed to stay in the United States. Nonetheless, because I am HIV-positive, I am not eligible to become a permanent resident.
So Sullivan was prohibited from giving money to the No on 8 campaign because of his HIV and resident status.
And what about getting a gay legal scholar's opinion of what Cashman said regarding foreign nationals, donations, and the links to the actual CA statute and an FEC brochure page? This is the view of one gay legal eagle on all of this:
This is interesting. I had not researched the question, but relied on the statement by No on 8 declaring that such contributions were prohibited. It was on the donation page of No on 8 at the bottom. See it here.
It now appears to me that No on 8 was either flat wrong or acting on an excess of caution, legally and politically, about donations.
Having said that, I think Andrew was also relying in good faith on what No on 8 was telling the public. If there is blame here, it is with the No on 8 campaign.
Not surprised in the least that there is one more thing to add to the long list of problems with the No on 8 leaders.
I hope I've learned a few lessons from my initial entry on Sullivan and the criticism thrown my way, including learning that some foreign nationals can indeed give money to fight CA's initiatives.
Since Sullivan was the topic of my original post, I emailed him the new info, and asked if he cared to comment. He replied:
merry christmas. if i have not done my share of fighting for marriage equality for the past twenty years, then i guess your standards are pretty high.
Yes, he's done his share of championing the gay marriage cause, but this update is about the new understanding I have of the FEC and CA regs that allow select foreign nationals in the USA to give money to state ballot propositions. Many thanks to Cashman and my gay scholar acquaintance, for enlightening me to what the law actually says and how to interpret its application during the Prop 8 fight.
The matter of whether the $40 million-plus spent by the No on 8 campaign was wisely used is a whole other ball of wax.