Wash. Times' McCaslin misrepresented FEC spokesman, advisory opinions, to raise questions about Clinton's Elton John concert

In his March 27 "Inside the Beltway" column, The Washington Times' John McCaslin asked: "Are Sen. Hillary Rodham Clinton and Elton John breaking U.S. laws by allowing the British pop singer, a foreign national, to raise hundreds of thousands of dollars for Mrs. Clinton's presidential campaign by performing a concert on her behalf?" He continued: "That's the question Inside the Beltway put to the Federal Election Commission (FEC) yesterday, which does not rule out the possibility." McCaslin noted that, according to the FEC, federal election law bans foreign nationals from "contributing, donating or spending" funds in connection with a campaign "directly or indirectly." Later in the column, McCaslin wrote that FEC spokesman Bob Biersack "said he doesn't know whether the Elton John performance would be considered unlawful by FEC standards." But the Clinton campaign's Fact Hub website quotes Biersack as saying: "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."

McCaslin has since updated his column by noting that the Clinton campaign "says 'it has complied with the law' surrounding a fundraising concert that Elton John is scheduled to perform," and also adding, "Today, however, Mr. Biersack called attention to an FEC opinion from 2004 (No. 2004-26) that dealt with a Guatemalan national who became engaged to a U.S. congressman and sought guidance on volunteering for his election campaign." However, even in his update, McCaslin did not note that, according to The Fact Hub, Biersack also said: "I did not intend to convey ... that there is anything unlawful" about the Elton John performance.

Additionally, in the update, McCaslin purported to contrast the 2004 opinion that Biersack reportedly cited with a 1981 FEC opinion, falsely asserting that the 1981 opinion "prohibited a foreign national artist from donating his services in connection with fundraising for a U.S. Senate campaign." In fact, the 1981 opinion prohibited a foreign national from donating something tangible -- a painting that person created -- to a campaign; it did not prohibit donating a service alone, as Elton John would be providing Clinton's presidential campaign.

From McCaslin's updated column:

"There are a series of advisory opinions issued over the years surrounding situations kind of like this, but not exactly like this," FEC spokesman Bob Biersack told Inside the Beltway earlier. "That's the problem with an advisory opinion -- they're not the same, but they do provide some sense of where the commission stands."

Today, however, Mr. Biersack called attention to an FEC opinion from 2004 (No. 2004-26) that dealt with a Guatemalan national who became engaged to a U.S. congressman and sought guidance on volunteering for his election campaign.

In that specific case, the FEC ruled that Zury Rios Sosa could be involved in Florida Rep. Jerry Weller's campaign, provided she not be compensated or else help manage or participate in decisions of his campaign committee.

By contrast, an earlier 1981 FEC decision prohibited a foreign national artist from donating his services in connection with fundraising for a U.S. Senate campaign.

The FEC stated in the 1981 opinion that then-Sen. Howard Metzenbaum's (D-OH) campaign could not accept the artwork from the foreign national because federal election law "prohibits any person who is a foreign national from making 'any contribution of money or other thing of value' in connection with any election to any political office. It is also unlawful for any person to solicit, accept, or receive any prohibited contribution from a foreign national." The opinion added: "Accordingly, the Commission concludes that a foreign national artist would be prohibited by 2 U.S.C. SS 441e from donating his uncompensated volunteer services to the Committee to create an original work of art for the Committee's use in fundraising." By contrast, as McCaslin noted in both his original column and his update, the FEC found, in a 1987 opinion, that a foreign national could "provide uncompensated volunteer services to a presidential campaign."

From McCaslin's original March 27 "Inside the Beltway" column:

Are Sen. Hillary Rodham Clinton and Elton John breaking U.S. laws by allowing the British pop singer, a foreign national, to raise hundreds of thousands of dollars for Mrs. Clinton's presidential campaign by performing a concert on her behalf?

That's the question Inside the Beltway put to the Federal Election Commission (FEC) yesterday, which does not rule out the possibility.

First, some background supplied by the FEC: The goal of the 1966 Foreign Agents Registration Act (FARA) was to "minimize foreign intervention" in U.S. elections by establishing a series of limitations on foreign nationals. In 1974, the prohibition was incorporated into the Federal Election Campaign Act (FECA), giving the FEC jurisdiction over its enforcement and interpretation.

According to the FEC, FECA "prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly. It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them. Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment."

The question now is whether Elton John is contributing "indirectly" to Mrs. Clinton's campaign and whether the candidate herself has sought to "solicit, receive or accept contributions or donations" from a foreign national, which is unlawful.

That said, the act does provide a volunteer "exemption" as long as the foreign national performing a service is not compensated by anyone. But this exemption gets tricky and might not apply to Elton John.

Consider that in a 1987 advisory opinion, the commission allowed a foreign national student to provide uncompensated volunteer services to a presidential campaign. By contrast, a 1981 FEC decision prohibited a foreign national artist from donating his services in connection with fundraising for a U.S. Senate campaign.

"There are a series of advisory opinions issued over the years surrounding situations kind of like this, but not exactly like this," FEC spokesman Bob Biersack told Inside the Beltway yesterday. "That's the problem with an advisory opinion -- they're not the same, but they do provide some sense of where the commission stands."

Mr. Biersack said he doesn't know whether the Elton John performance would be considered unlawful by FEC standards. As of yesterday, only $1,000 and $2,300 seats remained for sale for the concert, scheduled for April 9 at Radio City Music Hall in New York.

A complaint would have to be filed with the FEC before the commission could issue an advisory opinion, and even then it would remain confidential until completed, Mr. Biersack said.

That said, this column is unable to determine whether a complaint already has been filed, perhaps by the Barack Obama campaign.

From McCaslin's updated column:

Sen. Hillary Rodham Clinton's campaign says it "has complied with the law" surrounding a fundraising concert that Elton John is scheduled to perform on April 9 in New York City on behalf of the Democratic presidential candidate.

The statement came after Inside the Beltway earlier today questioned whether the New York senator and the British pop music star were violating the Federal Election Campaign Act (FECA), which seeks to "minimize foreign intervention" in U.S. elections by establishing a series of limitations on foreign nationals.

The FECA "prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly. It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them. Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment."

"There are a series of advisory opinions issued over the years surrounding situations kind of like this, but not exactly like this," FEC spokesman Bob Biersack told Inside the Beltway earlier. "That's the problem with an advisory opinion -- they're not the same, but they do provide some sense of where the commission stands."

Today, however, Mr. Biersack called attention to an FEC opinion from 2004 (No. 2004-26) that dealt with a Guatemalan national who became engaged to a U.S. congressman and sought guidance on volunteering for his election campaign.

In that specific case, the FEC ruled that Zury Rios Sosa could be involved in Florida Rep. Jerry Weller's campaign, provided she not be compensated or else help manage or participate in decisions of his campaign committee.

By contrast, an earlier 1981 FEC decision prohibited a foreign national artist from donating his services in connection with fundraising for a U.S. Senate campaign.

"Since 1987, the FEC has consistently held that foreign nationals may volunteer their time for campaigns on an uncompensated basis," Mrs. Clinton's campaign said in its statement. "Elton John is simply volunteering his uncompensated time to appear at the concert."

Mr. Biersack said a complaint would have to be filed with the FEC before the commission could issue an advisory opinion on the Elton John concert, and even then it would remain confidential until completed.