Federal campaign finance law prohibits foreign nationals from making contributions or expenditures of “money or other thing of value” in connection with American elections and prohibits anyone from solic­iting such a contribution or expenditure. The revelation that officials from Donald Trump’s 2016 presidential campaign met with Russian nationals after being told they would receive “information that would incriminate” Hillary Clinton, Trump’s political opponent, raised the question of how broadly the foreign national spending ban extended.

This Note uses the circumstances of the June 2016 meeting to exam­ine the scope of the foreign national spending ban. It analyzes whether “thing of value” should be construed to encompass intangibles such as information about a political rival. It then questions whether a broad reading of the statute would violate the First Amendment. It con­cludes by suggesting ways in which institutional actors such as the courts, Congress, and the Federal Election Commission might consider clarifying this area of the law.


In June 2016, a number of officials from Donald Trump’s presiden­tial campaign—including Donald Trump, Jr., Paul Manafort, and Jared Kushner—attended a meeting with Natalia Veselnitskaya, a Russian law­yer who offered to share documents that “would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to [Donald Trump] . . . [as] part of Russia and its government’s support for Mr. Trump.” 1 Jo Becker, Adam Goldman & Matt Apuzzo, Russian Dirt on Clinton? ‘I Love It,’ Donald Trump Jr. Said, N.Y. Times (July 11, 2017), (on file with the Columbia Law Review) [hereinafter Becker, Goldman & Apuzzo, I Love It] (internal quotation marks omitted) (quoting a June 3, 2016, email sent from an intermediary to Donald Trump, Jr.). The meeting’s public disclosure a year after its occurrence immediately sparked a debate over the legality of what had transpired. 2 See infra notes 149–152 and accompanying text. This Note joins that debate by examining several of the questions arising from the meeting’s circumstances. Federal law prohibits foreign nation­als from contributing any “money or other thing of value” to a campaign and bars anyone from soliciting such contributions. 3 52 U.S.C. § 30121 (Supp. IV 2017). However, “thing of value” is not defined in the relevant statute, and it is not immediately clear whether it can be construed so broadly so as to cover information about a political opponent. If it can, then the statute may purport to pro­hibit or chill speech protected by the First Amendment. Moreover, the debate itself highlights the need for additional clarity in this area of cam­paign finance law.

In order to examine whether and how the foreign national spending ban can apply to information, this Note proceeds in three Parts. Part I examines the circumstances of the June 2016 meeting, the relevant back­ground law covering the prohibition on foreign nationals’ campaign contributions and expenditures, and relevant First Amendment prece­dent. Part II examines and grapples with the statutory and constitutional questions raised by the June 2016 meeting. Part III proposes a framework for how courts, Congress, and the Federal Election Commission (FEC) should consider the issue of information from foreign sources in an election context going for­ward.

I. The June 2016 Meeting and Relevant Background Law

This Part introduces the Trump campaign’s June 2016 meeting and relevant background law. Section I.A describes the publicly known facts about the June 2016 meeting. Section I.B discusses the campaign finance law governing campaign contributions or expenditures by foreign nation­als, or the solicitation thereof. Section I.C outlines the First Amendment interests at stake and the overbreadth doctrine.

A. The June 2016 Meeting

On June 3, 2016, Donald Trump, Jr., son of the then-presumptive Republican presidential nominee, received an email from Rob Goldstone, a British publicist with whom Trump, Jr. had a “casual rela­tionship,” 4 Shawn Boburg & Jack Gillum, Who Is Rob Goldstone, Whose Email to Trump Jr. on Russia Caused a Sensation?, Wash. Post (July 15, 2017), []. which stated, “The Crown prosecutor 5 Russia has no “Crown prosecutor,” but Goldstone appears to have been referring to Yuri Chaika, the Prosecutor General of the Russian Federation. See Julia Ioffe, What the Heck Is a Russian ‘Crown Prosecutor’?, Atlantic (July 11, 2017), []. of Russia met with . . . Aras [Agalarov] 6 Agalarov, a wealthy Azerbaijani Russian developer with ties to the Russian gov­ernment, had worked with the Trump Organization, Donald Trump’s collection of private businesses, to organize the Miss Universe pageant held outside Moscow in 2013 and was later engaged in talks to construct a Trump Tower in Moscow. See Neil MacFarquhar, A Russian Developer Helps Out the Kremlin on Occasion. Was He a Conduit to Trump?, N.Y. Times (July 16, 2017), (on file with the Columbia Law Review); Andrew Roth, The Man Who Drives Trump’s Russia Connection, Wash. Post (July 22, 2017), []; see also Michael Crowley, When Donald Trump Brought Miss Universe to Moscow, Politico (May 15, 2016), [] (describing Trump’s involvement in the 2013 Miss Universe pageant).
Agalarov’s son, Emin, a pop singer, had previously worked with Goldstone. See Roth, supra. The Trump Organization’s efforts to build a Trump Tower in Moscow continued into mid-2016, months after Trump launched his presidential campaign. See Carol D. Leonnig, Tom Hamburger & Rosalind S. Helderman, Trump’s Business Sought Deal on a Trump Tower in Moscow While He Ran for President, Wash. Post (Aug. 27, 2017), []; see also Anthony Cormier & Jason Leopold, Trump Moscow: The Definitive Story of How Trump’s Team Worked the Russian Deal During the Campaign, Buzzfeed (May 17, 2018), []. Emin Agalarov later claimed a Trump Tower Moscow deal would have been consummated had Trump not run for pres­ident. See Dan Alexander & Noah Kirsch, Meet the Billionaire Russian Family at the Center of the Trump-Russia Controversy, Forbes (July 11, 2017), [].
this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to your father.” 7 Becker, Goldman & Apuzzo, I Love It, supra note 1 (internal quotation marks omitted) (quoting a June 3, 2016, email sent from Rob Goldstone to Donald Trump, Jr.). This was not the first overture Goldstone made related to Russia. In July 2015, shortly after Donald Trump launched his presidential campaign, Goldstone emailed Donald Trump’s assistant with an offer to set up a meeting with Vladimir Putin. See Rosalind S. Helderman & Tom Hamburger, Music Promoter Dangled Possible Putin Meeting for Trump During Campaign, Wash. Post (Dec. 14, 2017), []. In early 2016, Goldstone connected Donald Trump, Jr. and Dan Scavino, the Trump campaign’s social media director, with Konstantin Sidorkov, an executive at the Russian social media website Vkontakte, who suggested that Trump, Jr. set up a page on the site and offered to help promote the presi­dential campaign. See Rosalind S. Helderman, Anton Troianovski & Tom Hamburger, Russian Social Media Executive Sought to Help Trump Campaign in 2016, Emails Show, Wash. Post (Dec. 7, 2017), []. It does not appear that any such page was ever established. Id. Goldstone continued, explaining, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” 8 Becker, Goldman & Apuzzo, I Love It, supra note 1 (internal quotation marks omit­ted) (quoting a June 3, 2016, email sent from Rob Goldstone to Donald Trump, Jr.). Trump, Jr. replied, “If it’s what you say I love it especially later in the summer.” 9 Id. (internal quotation marks omitted) (quoting a June 3, 2016, email sent from Donald Trump, Jr. to Rob Goldstone). The email exchange continued until Goldstone offered to schedule a “meeting with you and [t]he Russian government attorney who is flying over from Moscow for this Thursday.” 10 Id. (internal quotation marks omitted) (quoting a June 7, 2016, email sent from Rob Goldstone to Donald Trump, Jr.).

The meeting took place on June 9, 2016, in Trump, Jr.’s office in Trump Tower in New York City and included eight participants. 11 See id. Present at the meeting were Donald Trump, Jr.; Paul Manafort; Jared Kushner; Rob Goldstone; Natalia Veselnitskaya, the Russian lawyer referenced in Goldstone’s email; Rinat Akhmetshin; Anatoli Samochornov; and Irakly Kaveladze. See Sharon LaFraniere & Adam Goldman, Guest List at Donald Trump Jr.’s Meeting with Russian Expands Again, N.Y. Times (July 18, 2017), (on file with the Columbia Law Review).
Manafort, then the chairman of the Trump campaign, would later resign in August 2016 amid revelations he had secretly received millions of dollars to work on behalf of a pro-Russian political party in Ukraine, see Maggie Haberman & Jonathan Martin, Paul Manafort Quits Donald Trump’s Campaign After a Tumultuous Run, N.Y. Times (Aug. 19, 2016), (on file with the Columbia Law Review), before eventually pleading guilty to a variety of crimes stemming from his work on behalf of his Ukrainian clients, see Statement of the Offenses & Other Acts at 24, United States v. Manafort, No. 17-201-1 (ABJ) (D.D.C. filed Sept. 14, 2018), [].
Kushner, President Trump’s son-in-law, was a senior figure in the Trump campaign, at one point becoming “the de facto campaign manager,” and would go on to serve as a sen­ior advisor in the White House. Glenn Thrush & Maggie Haberman, Jared Kushner Named Senior White House Adviser to Donald Trump, N.Y. Times (Jan. 9, 2017), (on file with the Columbia Law Review).
Veselnitskaya, a Russian lawyer and former prosecutor, was previously best known as “an outspoken advocate for lifting economic sanctions imposed by Congress against Russia for human rights violations.” Michael Kranish et al., Russian Lawyer Who Met with Trump Jr. Has Long History Fighting Sanctions, Wash. Post (July 11, 2017),
russian-lawyer-who-met-with-trump-jr-has-long-history-fighting-sanctions/05e2467c-65b1-11e7-94ab-5b1f0ff459df [].
Akhmetshin is a Russian American lobbyist believed to have long-standing ties to Russian intelligence. See Sharon LaFraniere, David D. Kirkpatrick & Kenneth P. Vogel, Lobbyist at Trump Campaign Meeting Has a Web of Russian Connections, N.Y. Times (Aug. 21, 2017), (on file with the Columbia Law Review).
Samochornov is an American translator who has previously worked with Veselnitskaya. See Katie Zavadski & Emilie Plesset, The Translator Swept Up in Donald Trump Jr.’s Russian Dirt Hunt, Daily Beast (July 14, 2017), [].
Kaveladze is a Georgian American employee of Aras Agalarov’s company. See Rosalind S. Helderman & Tom Hamburger, Eighth Person in Trump Tower Meeting Is Identified, Wash. Post (July 18, 2017), [].
The New York Times first publicly revealed the meeting’s occurrence in July 2017, over a year later. 12 See Jo Becker, Matt Apuzzo & Adam Goldman, Trump’s Son Met with Russian Lawyer After Being Promised Damaging Information on Clinton, N.Y. Times (July 9, 2017), (on file with the Columbia Law Review). As new details emerged over the ensuing days, Trump, Jr. issued a series of evolving statements explaining the meeting. 13 See Liam Stack, Donald Trump Jr.’s Two Different Explanations for Russian Meeting, N.Y. Times (July 9, 2017), (on file with the Columbia Law Review) (“In less than 24 hours, President Trump’s eldest son, Donald Trump Jr., has given two different explanations for a meeting he held during the 2016 campaign with a Kremlin-connected Russian lawyer who promised to provide damaging information about Hillary Clinton.”). The Washington Post later reported that President Trump personally dic­tated Trump, Jr.’s misleading initial statement, see Ashley Parker et al., Trump Dictated Son’s Misleading Statement on Meeting with Russian Lawyer, Wash. Post (July 31, 2017), [], a fact the White House later acknowledged after months of denials, see Michael S. Schmidt et al., Trump’s Lawyers, in Confidential Memo, Argue to Head Off a Historic Subpoena, N.Y. Times (June 2, 2018), (on file with the Columbia Law Review). He later claimed to have attended the meeting believing that he would receive “[p]olitical [o]pposition [r]esearch” about Hillary Clinton, the then-presumptive Democratic presidential nominee. 14 Donald J. Trump, Jr. (@DonaldJTrumpJr), Twitter (July 11, 2017), [] (“The information [Rob Goldstone, Emin Agalarov, and Natalia Veselnitskaya] suggested they had about Hillary Clinton I thought was Political Opposition Research.”). In a subsequent interview with Sean Hannity, Trump, Jr. elabo­rated on what he thought he would be receiving by attending the meeting with Veselnitskaya: “Honestly, my takeaway, when all of this was going on, is that someone has information on our opponent . . . . Listen, I’d been reading about scandals that people were probably underreporting for a long time. So maybe it was something that had to do with one of those things.” Donald Trump Jr. on ‘Hannity’: In Retrospect, I Would’ve Done Things Differently, Fox News (July 11, 2017), (on file with the Columbia Law Review). He con­tinued: “[T]he pretext of the meeting was, [‘]Hey, I have information about your oppo­nent.[’] . . . For me, this was opposition research. They had something, you know, maybe concrete evidence to all the stories I’d been hearing about, but were probably underre­ported for, you know, years; not just during the campaign.” Id.
By August 2018, President Trump had begun describing the purpose of the meeting similarly. See Donald J. Trump (@realDonaldTrump), Twitter (Aug. 5, 2018), [] (“This was a meeting to get information on an opponent . . . .”).
However, he also explained that although Veselnitskaya began the meeting by “stat[ing] that she had information that individuals connected to Russia were fund­ing the Democratic National Committee and supporting Ms. Clinton . . . [i]t quickly became clear that she had no meaningful information.” 15 Stack, supra note 13 (internal quotation marks omitted) (quoting a statement released by Donald Trump, Jr.). Furthermore, “[i]t became clear . . . that [the Magnitsky Act, a sanctions package targeting several Russian officials,] was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting,” which, according to Trump, Jr., concluded after twenty to thirty minutes. 16 Id. (internal quotation marks omitted) (quoting a statement released by Donald Trump, Jr.). Veselnitskaya brought an English translation of her talking points in memo­randum form to the meeting, which primarily focused on the activities of an American businessman, Bill Browder. See Elias Groll, Here’s the Memo the Kremlin-Linked Lawyer Took to the Meeting with Donald Trump Jr., Foreign Pol’y (Oct. 16, 2017), []. The document alleges that Browder defrauded the Russian government, and—in order to deflect attention from his own ille­gal activities—falsified a different corruption scandal, which became, in part, the impetus for passage of the sanctions package known as the Magnitsky Act. Id. Hillary Clinton is mentioned only once, indirectly, as the possible recipient of campaign donations from Browder’s business partners. Id.
Veselnitskaya had previously discussed the allegations with Yuri Chaika, the Russian prosecutor general, and her talking points closely tracked a document the prosecutor general’s office had provided to an American congressman months earlier, likely indicat­ing some coordination with the Russian government. See Sharon LaFraniere & Andrew E. Kramer, Talking Points Brought to Trump Tower Meeting Were Shared with Kremlin, N.Y. Times (Oct. 27, 2017), (on file with the Columbia Law Review) (“[I]nterviews and records show that in the months before the [June 2016] meeting, Ms. Veselnitskaya had discussed the allegations with one of Russia’s most powerful officials . . . . The coordination between the Trump Tower visitor and the Russian prosecutor general undercuts Ms. Veselnitskaya’s account that she was a purely independent actor . . . .”). After hacked emails revealed that Veselnitskaya worked with the prosecutor general’s office to thwart a U.S. Justice Department civil fraud case brought against a Russian real estate firm, she acknowledged her ties to the Russian government in an April 2018 interview: “‘I am a lawyer, and I am an informant’ . . . . ‘Since 2013, I have been actively communicating with the office of the Russian prosecutor general.’” Andrew E. Kramer & Sharon LaFraniere, Lawyer Who Was Said to Have Dirt on Clinton Had Closer Ties to Kremlin than She Let On, N.Y. Times (Apr. 27, 2018), (on file with the Columbia Law Review).

In written testimony submitted to the U.S. Senate Judiciary Committee, Veselnitskaya claimed that Trump, Jr. “asked if I had any finan­cial documents proving that what may have been illegally obtained funds were also being donated to Mrs. Clinton’s foundation.” 17 Testimony of Natalia Veselnitskaya Before the United States Senate Committee on the Judiciary 28 (Nov. 20, 2017) [hereinafter Veselnitskaya Testimony], (on file with the Columbia Law Review). In a media interview, she also stated that Trump, Jr. responded to the concerns she raised about the Magnitsky Act by saying, “Looking ahead, if we come to power, we can return to this issue and think what to do about it,” 18 Irina Reznik & Henry Meyer, Trump Jr. Hinted at Review of Anti-Russia Law, Moscow Lawyer Says, Bloomberg (Nov. 6, 2017), [] (internal quotation marks omitted) (quoting Veselnitskaya recalling her conversation with Trump, Jr.). although she testified that she understood this statement to be simply a polite farewell. 19 Veselnitskaya Testimony, supra note 17, at 31 (“Mr. Trump, Jr. politely wound up the meeting with meaningless phrases . . . . I personally regarded this as an elegant, but final farewell. That’s all about it.”).

Ultimately, irrespective of what may or may not have actually been exchanged at the June 2016 meeting, it appears from his own statements that Trump, Jr. arranged the meeting under the impression he was to receive “[p]olitical [o]pposition [r]esearch” from a Russian attorney—which he was told was part of the Russian government’s support for his father—and, according to Veselnitskaya, asked her directly for that infor­mation at the meeting itself. 20 See supra notes 14, 17 and accompanying text.

B. Foreign Influence in American Elections

This section covers the campaign finance laws implicated by the June 2016 meeting, which today prohibit foreign campaign contributions or expenditures of “money or other thing[s] of value.” 21 52 U.S.C. § 30121(a)(1) (Supp. IV 2017). Section I.B.1 dis­cusses historical concerns over foreign influence in American policymak­ing and the development of relevant campaign finance law. Section I.B.2 reviews current statutory and regulatory limitations on the rights of for­eign nationals to participate in the electoral process. Finally, Section I.B.3 turns to a discussion of Bluman v. FEC, which upheld the statutory ban on campaign contributions and expenditures by foreign nationals against a First Amendment challenge. 22 800 F. Supp. 2d 281, 282–83 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012).

1. Development of Campaign Finance Law. — A distrust of foreign inter­ference in elections was present in the American constitutional design at the Founding. Attendees at the Constitutional Convention “were con­cerned that the small size of the young country (compared to the great European powers) would open it up to foreign corruption.” 23 Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 353 (2009) (describing the centrality of concerns about preventing corruption to debates at the Convention). The potential for foreign influence over a republican form of government is also a recur­ring concern throughout The Federalist Papers. See, e.g., The Federalist No. 22, at 145 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corrup­tion.”); The Federalist No. 66, at 404 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (arguing that the division of power between an executive and bicameral legislature would guard against, among other dangers, the possibility “of a few leading individuals in the Senate who should have prostituted their influence in that body as the mercenary instru­ments of foreign corruption”); The Federalist No. 68, at 411 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“[C]abal, intrigue, and corruption . . . [can be expected to arise] chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”). Several provisions were included in the Constitution specifically to address this concern, such as residency requirements for members of Congress, 24 U.S. Const. art. I, § 2, cl. 2; id. § 3, cl. 3; see also Teachout, supra note 23, at 358 (noting that residency requirements for officeholders “represented a concern about for­eign power, which was often intermingled with the fears of corruption”). the Emoluments Clause, 25 U.S. Const. art. I, § 9, cl. 8; see also Teachout, supra note 23, at 361–62 (arguing the Emoluments Clause was proposed because “the delegates [to the Constitutional Convention] were deeply concerned that foreign interests would try to use their wealth to tempt public servants and sway the foreign policy decisions of the new government”). and the Natural-Born Citizen Clause. 26 U.S. Const. art. II, § 1, cl. 5; see also Malinda L. Seymore, The Presidency and the Meaning of Citizenship, 2005 BYU L. Rev. 927, 939 (“[T]he natural-born requirement was motivated by a fear of foreign involvement in the government.”).

Concerns over foreign influence would wax and wane over the ensu­ing decades, peaking at moments such as the Quasi-War with France in the late 1790s, which resulted in the enactment of the Alien and Sedition Acts. 27 See Matt A. Vega, The First Amendment Lost in Translation: Preventing Foreign Influence in U.S. Elections After Citizens United v. FEC, 44 Loy. L.A. L. Rev. 951, 965–66 (2011). The years preceding World War II saw a resurgence in concern regarding foreign influence over American policy; Congress responded by passing the Foreign Agents Registration Act (FARA) in 1938, 28 Foreign Agents Registration Act of 1938, Pub. L. No. 75-583, ch. 327, 52 Stat. 631 (codified as amended at 22 U.S.C. §§ 611–621 (2012)). which “established disclosure requirements for certain kinds of political expres­sion sponsored by foreign principals but did not place any restrictions on the speech itself.” 29 Vega, supra note 27, at 968. In 1966, Congress strengthened FARA by making it a felony for any “agent of a foreign principal” to directly or indirectly, on behalf of the foreign principal, “knowingly make[ ] any contribution of money or other thing of value . . . in connection with an election to any polit­ical office.” 30 Act of July 4, 1966, Pub. L. No. 89-486, sec. 8(a), § 613, 80 Stat. 244, 248 (empha­sis added). The law also prohibited “knowingly solicit[ing], accept[ing], or receiv[ing]” such a contribution. 31 Id. It was riddled with loopholes, however, and remained focused on agents of foreign princi­pals rather than the principals themselves. 32 See Vega, supra note 27, at 971 (“[FARA’s exclusive focus on foreign principals’ agents] created a glaring ‘agents-only’ loophole that foreign corporations generously exploited.”). FARA was initially focused on propagandists and resulted in twenty-three successful criminal prosecutions during the World War II era. U.S. Dep’t of Justice, Justice Manual, Criminal Resource Manual § 2062, [] (last updated Sept. 19, 2018). The 1966 amendments modified FARA “to focus on the integ­rity of the United States Government decision-making process, and to emphasize agents seeking economic or political advantage for their clients.” Id. Since then, “there have been no successful criminal prosecutions under FARA and only 3 indictments returned or informations filed charging FARA violations.” Id.

Efforts to constrain foreign influence over American officeholders would eventually intersect with the laws governing the financing of American campaigns. In 1971, after decades of taking a piecemeal approach, Congress enacted comprehensive legislation to address the rapidly rising cost of presidential and congressional elections and enhance disclosure of campaign spending and sources of fundraising. 33 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified as amended at 52 U.S.C. §§ 30101–30126, 30141–30145 (Supp. IV 2017)); see also Matthew A. Melone, Citizens United and Corporate Political Speech: Did the Supreme Court Enhance Political Discourse or Invite Corruption?, 60 DePaul L. Rev. 29, 32­­–39 (2010) (describing the evolution of twentieth-century campaign finance law leading to the reforms of 1974). Professor Ciara Torres-Spelliscy has noted that federal laws restricting foreign ownership of broadcasters emerged throughout this period and were rooted in the same “deep concern about the impact of foreign propaganda on the American electorate” motivating limitations on foreign campaign contributions. Ciara Torres-Spelliscy, Dark Money as a Political Sovereignty Problem, 28 King’s L.J. 239, 251–53 (2017). But the initial version of the Federal Election Campaign Act (FECA) proved as ineffective as previous attempts to regulate campaign finance had—“[i]ndeed, from 1910 to 1974 federal campaign finance law was honored more in the breach than in the observation.” 34 Anthony J. Gaughan, The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform, 77 Ohio St. L.J. 791, 798 (2016) [hereinaf­ter Gaughan, Forty-Year War]; see also Richard Briffault, Reforming Campaign Finance Reform: A Review of Voting with Dollars, 91 Calif. L. Rev. 643, 651–52 (2003) (describing pre-FECA campaign finance disclosure laws as “ha[ving] little real effect other than signi­fying the symbolic importance of disclosure” due to “drafting defects and the lack of enforce­ment”); Rebecca Curry, Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy, 46 Suffolk U. L. Rev. 389, 400 (2013) (“Early campaign finance laws were notoriously easy to circumvent because their policymaking structure made compliance largely a matter of individual choice.”). Over the next few years, however, as revelations stemming from the break-in at the Watergate Hotel unfolded, a groundswell of political pressure led Congress to address the outsize influence of money in politics. 35 See Gaughan, Forty-Year War, supra note 34, at 799–800.

Congress responded by enacting the Federal Election Campaign Act Amendments of 1974 (“1974 FECA Amendments”), 36 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended in scattered titles of the U.S.C.). which “transformed American campaign finance law” by establishing limits on contributions to federal candidates, total campaign expenditures by presidential and congressional campaigns, and independent campaign expenditures by individuals; mandating disclosure of campaign contributions; creating a public financing system for presidential campaigns; and establishing an independent agency, the Federal Election Commission, to enforce federal campaign finance law. 37 See Gaughan, Forty-Year War, supra note 34, at 802. Scholars have pointed to the Watergate scandal and ensuing reforms—specifically the 1974 FECA Amendments and Buckley v. Valeo, 38 424 U.S. 1 (1976) (per curiam). the subsequent landmark Supreme Court case that considered FECA’s constitutionality—as commencing the “modern era” of campaign finance regulation. 39 See, e.g., Samuel Issacharoff & Jeremy Peterman, Special Interests After Citizens United: Access, Replacement, and Interest Group Response to Legal Change, 9 Ann. Rev. L. & Soc. Sci. 185, 187 (2013) (“The modern era of federal campaign finance regulation begins with the Federal Election Campaign Act of 1971 (FECA), Pub. L. 92-225, and the Supreme Court’s decision in Buckley v. Valeo (1974) that immediately followed.”); Kenneth D. Katkin, Campaign Finance Reform After Federal Election Commission v. McConnell, 31 N. Ky. L. Rev. 235, 239 (2004) (“The modern era of campaign finance reform began with the Federal Election Campaign Act Amendments of 1974, which was enacted in the wake of the Watergate scandal.” (footnote omitted)).

In Buckley, the Supreme Court struck down the 1974 FECA Amendments’ limits on expenditures as unconstitutionally infringing on the right to political speech protected by the First Amendment, 40 See Buckley, 424 U.S. at 51. thereby drawing a distinction between contributions and expendi­tures 41 Id. at 20–21. that persists “[a]t the heart of American campaign finance law” to this day. 42 Richard Briffault, Coordination Reconsidered, 113 Colum. L. Rev. Sidebar 88, 88 (2013), []. The Court reasoned that whereas expenditure limits “neces­sarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audi­ence reached,” 43 Buckley, 424 U.S. at 19. contribution limits are lesser restraints on political speech because they “permit[ ] the symbolic expression of support evi­denced by a contribution but do[ ] not in any way infringe the contrib­utor’s freedom to discuss candidates and issues.” 44 Id. at 21. Indeed, the Court ruled that contribution limits were “only a marginal restriction” on free speech rights, since “[a] contribution serves as a general expression of support . . . but does not communicate the underlying basis for the support.” 45 Id. at 20­–21. FECA’s contribution restrictions and disclosure requirements were there­fore justified by the government’s compelling interest in preventing cor­ruption and the appearance of corruption. 46 Id. at 26–29, 68, 72, 82.

Among the provisions of the 1974 FECA Amendments that survived Buckley was a ban on foreign contributions sponsored by Texas Senator Lloyd Bentsen. 47 See Vega, supra note 27, at 972. Bentsen introduced the amendment after reports revealed that President Nixon had accepted over $10 million in foreign contributions during his 1972 reelection campaign. 48 See id. at 972 & n.129 (describing Bentsen’s amendment as a response to reve­lations about the influence of foreign money in the 1972 presidential election). The amendment prohibited foreign nationals, except U.S. permanent residents, from making campaign contributions and prohibited candidates from “knowingly solicit[ing] or accept[ing] a [campaign] contribution” from foreign nationals. 49 120 Cong. Rec. 8782 (1974) (text of amendment No. 1083). While introducing the amendment, Senator Bentsen explained, “I do not think foreign nation­als have any business in our political campaigns . . . . Their loyal­ties lie elsewhere; they lie with their own countries and their own gov­ernments.” 50 Id. at 8783 (statement of Sen. Bentsen). In 1976, the FEC was granted jurisdiction to enforce this provision. 51 See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, sec. 112, § 324, 90 Stat. 475, 493–94 (codified as amended at 52 U.S.C. § 30121 (Supp. IV 2017)).

In 1989, the FEC promulgated a rule that extended the ban on for­eign contributions to “expenditures” by foreign nationals, meaning “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made . . . for the purpose of influencing any election for Federal office.” 52 Bruce D. Brown, Alien Donors: The Participation of Non-Citizens in the U.S. Campaign Finance System, 15 Yale L. & Pol’y Rev. 503, 513 & n.50 (1997) (emphasis added) (quoting 2 U.S.C. § 431(9)(A)(i)–(ii) (1994)). There was some controversy as to whether the foreign national spending ban covered “soft money”—contributions to politi­cal par­ties for state and local elections which could be used to fund mixed-purpose activi­ties, such as get-out-the-vote drives, to influence federal elections as well—since the lan­guage in the 1974 FECA Amendments was somewhat ambiguous. The FEC interpreted the ban to cover state and local soft money, a construction that was eventually upheld by the D.C. Circuit. See United States v. Kanchanalak, 192 F.3d 1037, 1049–50 (D.C. Cir. 1999) (upholding the FEC’s interpretation of the 1974 FECA Amendments covering state and local elections as reasonable in light of the statute’s legislative history). The foreign national spending ban was later amended in 2002 to explicitly cover “Federal, State, or local election[s].” Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 303, 116 Stat. 81, 96 (codified at 52 U.S.C. § 30121 (Supp. IV 2017)).

Following the 1996 election, legal permanent residents were impli­cated in funneling contributions from the Chinese government to the Democratic National Committee. 53 See Brown, supra note 52, at 505–07; Vega, supra note 27, at 974. The ensuing controversy provided part of the impetus for comprehensive campaign finance reform legisla­tion, 54 Bipartisan Campaign Reform Act of 1997, S. 25, 105th Cong. (1997). championed by Senators John McCain and Russ Feingold, which included a section titled “Strengthening Foreign Money Ban.” 55 Id. § 506. Although the proposed act contained many provisions, a significant amount of the floor debate was concerned with the issue of foreign contributions. See, e.g., 143 Cong. Rec. 21,172–73 (1997) (statement of Sen. Feingold); id. at 21,169 (state­ment of Sen. Abraham); id. at 21,157 (statement of Sen. Shelby); id. at 21,147 (statement of Sen. Feingold); id. at 21,145 (statement of Sen. Hagel); id. at 21,086–89, 21,099, 21,103 (statement of Sen. McConnell); id. at 20,565 (statement of Sen. Feingold); id. at 20,562–64 (statement of Sen. Cleland); id. at 20,559 (statement of Sen. Lieberman). That bill failed to overcome a filibuster in the Senate, 56 143 Cong. Rec. 22,061–62 (1997) (recording a 52-47 vote). but a subsequent version was enacted five years later as the Bipartisan Campaign Reform Act of 2002 (BCRA). 57 Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (cod­ified as amended at 18 U.S.C. § 607 (2012), 36 U.S.C. §§ 510–511, 47 U.S.C. § 315, 52 U.S.C. ch. 301 (Supp. IV 2017)).

One of “BCRA’s goals was to provide enhanced criminal penalties for knowing and willful FECA violations . . . [and] to put in place a strong sentencing guideline for FECA crimes.” 58 Craig C. Donsanto & Nancy L. Simmons, U.S. Dep’t of Justice, Federal Prosecution of Election Offenses, at xiii (7th ed. 2007),
default/files/criminal/legacy/2013/09/30/electbook-0507.pdf [].
BCRA therefore increased FECA’s criminal penalties, 59 Bipartisan Campaign Reform Act of 2002 § 312. extended the statute of limitations for all causes of action, 60 See id. § 313. and added the involvement of “a contribution, donation, or expenditure from a foreign source” as an aggravating factor to be considered at sentencing. 61 See id. § 314. It also clarified that the foreign national spending ban extended to state and local elections and expanded the ban on foreign national contributions to expenditures, independent expend­itures, contributions to political parties, and electioneering com­munications, thereby codifying and expanding the FEC’s 1989 rule. 62 See id. § 303; see also supra note 52 and accompanying text (describing the 1989 rule).

2. Current Law. — The current statutory language of FECA makes it illegal for “a foreign national, directly or indirectly, to make . . . a contri­bution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in con­nection with a Federal, State, or local election.” 63 52 U.S.C. § 30121(a)(1)(A) (Supp. IV 2017) (emphasis added). Foreign nationals are also prohibited from making “contribution[s] or donation[s] to a com­mittee of a political party” and “expenditure[s], independent expendi­ture[s], or disbursement[s] for an electioneering communication.” 64 Id. § 30121(a)(1)(B)–(C). In addition, the law bars any person from “solicit[ing], accept[ing], or receiv[ing] a con­tribution or donation . . . from a foreign national.” 65 Id. § 30121(a)(2).

The term “foreign national” is statutorily defined in this context as foreign governments; foreign political parties; foreign partnerships, asso­ciations, corporations, and organizations; and individuals who are not U.S. citizens, U.S. nationals, or lawful permanent residents. 66 See 22 U.S.C. § 611(b) (2012); 52 U.S.C. § 30121(b). Generally, a foreign corpo­ration is one “organized under the laws of a foreign country.” Donsanto & Simmons, supra note 58, at 165. The FEC has established a body of precedent to deal with more compli­cated situations, such as the status of domestic subsidiaries of foreign corporations or domes­tic corporations owned by foreign nationals. See id. at 165–66; Foreign Nationals, FEC (June 23, 2017), [] (collecting the rules and precedents governing political activities by foreign-owned corporations or domestic subsidiaries of foreign corporate parents). The FEC defines “solicit” as “ask[ing], request[ing], or recommend[ing], explic­itly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.” 67 11 C.F.R. § 300.2(m) (2018) (emphasis added) (“A solicitation is an oral or writ­ten communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking . . . or recommending that another person make a contribution, donation . . . or otherwise provide anything of value. A solicitation may be made directly or indirectly.”); see also id. § 110.20(a)(6) (incorporating the definition in § 300.2(m) into the foreign national spending context). FEC regula­tions also prohibit “provid[ing] substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation” by a for­eign national or “provid[ing] substantial assistance in the making of an expenditure, independent expenditure, or disbursement” by a foreign national. 68 Id. § 110.20(h). “Substantial assistance” is defined as “active involvement in the solicitation, making, receipt or acceptance of a foreign national contribution or donation with an intent to facilitate successful completion of the transaction.” Contribution Limitations and Prohibitions, 67 Fed. Reg. 69,928, 69,945 (Nov. 19, 2002) (codified as amended at 11 C.F.R. pts. 102, 110 (2018)). The FEC promulgated the substantial assis­tance ban pursuant to its statutory charge to develop rules “necessary to carry out the pro­visions of [FECA],” 52 U.S.C. § 30107(a)(8), after determining that such a provision was “necessary to effectuate one of the key purposes of BCRA, that is, to prevent foreign national funds from influencing elections,” Contribution Limitations and Prohibitions, 67 Fed. Reg. at 69,945.

There are some important exceptions relevant to the foreign national spending ban. The “media exemption” provides that “[a]ny cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station . . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication, is not a contribution.” 69 11 C.F.R. § 100.73; id. § 100.132 (describing the same exception for expendi­tures). This exemption applies quite broadly to the activ­ities of a person or organization determined to be a “press entity.” 70 See Note, Defining the Press Exemption from Campaign Finance Restrictions, 129 Harv. L. Rev. 1384, 1392 (2016) (“The FEC has only twice in recent years found that a media company’s activities were outside the scope of the press exemption.”). Debate over the outer limits of who qualifies as a press entity remains ongoing, 71 See id. at 1395­–96 (identifying a split among FEC commissioners over whether the media exemption should be narrowed or whether the First Amendment precludes such line drawing). but the general trend appears to favor an increasingly expan­sive interpretation of the exemption. 72 See Jason M. Shepard, Campaigning as the Press: Citizens United and the Problem of Press Exemptions in Law, 16 Nexus 137, 139, 144, 147­–48 (2010­–2011). The FEC con­ducts a series of two-step analyses to determine whether the media exemption applies. The FEC first asks whether the entity is “a press or media entity.” FEC Advisory Op. 2010-08, at 4 (June 11, 2010) [hereinafter FEC, AO 2010-08], []. Because this term is not defined in stat­ute or regulation, the FEC focuses “on whether the entity in question produces on a regu­lar basis a program that disseminates news stories, commentary, and/or editorials” when making this determination. Id. at 5. If the entity is a “press or media entity,” the FEC then applies a two-part analysis derived from Reader’s Digest Ass’n v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981), which requires the FEC to determine “(A) [t]hat the entity is not owned or controlled by a political party, political committee, or candidate; and (B) [t]hat the entity is acting as a press entity in conducting the activity at issue (i.e., whether the press entity is acting in its ‘legitimate press function’).” FEC, AO 2010-08, supra, at 4–5. In determining whether the press entity is acting pursuant to its “legitimate press function,” the FEC asks “(1) whether the entity’s materials are available to the general public, and (2) whether they are comparable in form to those ordinarily issued by the entity.” Id. at 6.
In 2010, for example, the FEC determined that the media exemption applied to Citizens United, an advocacy group which was the named plaintiff in Citizens United v. FEC, 558 U.S. 310 (2010), thereby reversing a 2004 Advisory Opinion that had held that the same organization did not qualify for the media exemption. See FEC Advisory Op. 2004-30, at 6 (Sept. 10, 2004), []. In applying the media exemption to Citizens United, the FEC noted that the organization had produced and released significantly more documen­tary films in the preceding years as compared to 2004, FEC, AO 2010-08, supra, at 5 n.9; that it was not controlled by a political party or candidate, id. at 6; and that distributing documentary films was a legitimate press function for an entity like Citizens United, in part because it was being compensated by broadcasters for distributing its films in video-on-demand format rather than paying to air them, id. at 6­–7. The FEC’s determination was arguably in conflict with the Supreme Court’s decision in Citizens United. See Shepard, supra, at 148 (noting that the Court had characterized Citizens United’s documentary as a “‘feature-length negative advertisement’” that would still be subject to disclosure and dis­claimer requirements; requirements which, Shepard argues, “ironically” would no longer apply under the press exemption (quoting Citizens United, 558 U.S. at 325)).
There is also an exemption for volunteer services. 73 See 52 U.S.C. § 30101(8)(B) (Supp. IV 2017) (“The 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 . . . .”); 11 C.F.R. § 100.74 (“The value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee is not a contribution.”); see also id. § 100.75 (exempting the use of a volunteer’s residential property); id. § 100.76 (exempting a volun­teer’s use of a church or community room); id. § 100.77 (exempting the cost of invita­tions, food, and beverages provided at a residential property or a church or community room by a volunteer); id. § 100.94 (exempting certain kinds of volunteer internet activi­ties, such as sending email or providing a hyperlink). The key question in applying this exemption is whether the services provided are voluntary and uncompensated, whether by the campaign or any other person or entity; 74 Bernie Sanders’s 2016 presidential campaign, for example, paid a $14,500 civil penalty to the FEC to settle claims it violated the foreign national spending ban by placing delegates from the Australian Labor Party as “volunteers” with the campaign. See Conciliation Agreement at 2–3, Bernie 2016, MUR 7035 (FEC Feb. 15, 2018), []. Although the Australians “engaged in hands-on activity typical of volunteers . . . including encouraging voter attendance at campaign events, recruiting volunteers, canvassing with volunteers, and planning events,” the Australian Labor Party had paid for their flights and provided them with a daily stipend. Id. at 2. The fact that the Australian “volunteers’” activ­ities were compensated by another entity meant their activities were not covered by the volunteer services exemption—meaning the Sanders campaign had “accepted a $24,422 prohibited in-kind foreign national contribution in violation of 52 U.S.C. § 30121(a)(2).” Id. at 3. establishing a formal “volunteering” relationship with a campaign is not a prerequisite. 75 See Internet Communications, 71 Fed. Reg. 18,589, 18,603 (Apr. 12, 2006) (codi­fied at 11 C.F.R. pts. 100, 110, 114) (“[FECA as amended] does not require that a candi­date or political committee formally recognize an individual as a ‘volunteer’ for that indi­vidual’s activities to be exempt from the definitions of ‘contribution’ and ‘expenditure.’”).

FECA’s provisions are civilly enforceable by the FEC, but “knowing and willful” violations are also criminally enforceable and can be referred to the Department of Justice (DOJ) for investigation and prose­cution. 76 See 52 U.S.C. § 30109(a)(5)(C) (describing referral procedures); id. § 30109(d) (describing criminal penalties). The DOJ may also investigate and prosecute an alleged FECA violation independently of any FEC referral. See Fieger v. U.S. Att’y Gen., 542 F.3d 1111, 1121 (6th Cir. 2008) (“[FECA] neither grants the FEC exclusive jurisdiction to enforce criminal provisions of the Act nor limits, in any way, the Attorney General’s ple­nary power to enforce the criminal provisions of the Act.”). “Knowingly” here means that a person either (1) has “actual knowledge that the source of the funds solicited, accepted or received is a foreign national”; (2) is “aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source” of such funds is a foreign national; or (3) is “aware of facts that would lead a reasonable person to inquire whether the source” of such funds is a foreign national, but failed to make a reasonable inquiry. 77 11 C.F.R. § 110.20(a)(4); see also Richard C. Pilger ed., U.S. Dep’t of Justice, Federal Prosecution of Election Offenses 152–55 (8th ed. 2017), [] (describing the intent requirement for criminal liability under FECA).

3. A Challenge to the Foreign National Spending Ban: Bluman v. FEC. — The above-mentioned provisions were challenged on First Amendment grounds in Bluman v. FEC. 78 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012). The plaintiffs, Benjamin Bluman and Asenath Steiman, were Canadian and Canadian Israeli citizens living in the United States on temporary work visas. 79 Id. at 285. Bluman sought to make contributions to federal and state campaigns and to print and distribute flyers supporting President Obama’s reelection; Steiman wanted to contribute to federal campaigns, the National Republican Senatorial Committee, and the Club for Growth, an independent advocacy organi­zation. 80 Id.

Then-Judge Brett Kavanaugh, writing for a three-judge panel of the U.S. District Court for the District of Columbia, acknowledged that “foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do,” 81 Id. at 286. but nevertheless, the “government may exclude foreign citizens from activities ‘intimately related to the process of demo­cratic self-government.’” 82 Id. at 287 (quoting Bernal v. Fainter, 467 U.S. 216, 220 (1984)). This is because “the ‘exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition.’” 83 Id. (emphasis added by Bluman) (quoting Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982)).

Concluding that political contributions and express-advocacy expen­d­itures are integral to the process of democratic self-government, the court upheld the foreign national spending ban. 84 Id. at 288. It noted that its holding did not mean Congress could extend the ban to cover lawful permanent residents or bar foreign nationals from other forms of speech, such as issue advocacy, and cautioned that criminal convictions for violating this provision required proof of knowledge of the law. 85 Id. at 292. The plaintiffs appealed, but Judge Kavanaugh had the last word as the Supreme Court summarily affirmed the decision. 86 See Bluman v. FEC, 565 U.S. 1104, 1104 (2012) (mem.), aff’g 800 F. Supp. 2d 281. Some scholars have argued that the Court’s summary affirmance rendered its cam­paign finance jurisprudence incoherent, since Judge Kavanaugh’s reasoning in Bluman is in considerable tension with Citizens United v. FEC, 558 U.S. 310 (2010). See, e.g., Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections 113–18 (2016) (questioning why, in the First Amendment context, “legislators can decide that ‘different rules might apply’ to foreign individuals, but . . . they cannot make the same judgment about artificial entities such as corporations” (quoting Brad Smith, Bluman v. FEC and the Infield Fly Rule, Inst. for Free Speech (Jan. 9, 2012), [])); Liz Kennedy & Seth Katsuya Endo, The World According to, and After, McCutcheon v. FEC, and Why It Matters, 49 Val. U. L. Rev. 533, 563 (2015) (“Chief Justice Roberts’s commitment to the value of unbridled speech even in the context of campaign finance is difficult to square with Bluman v. FEC . . . .”); Todd E. Pettys, Campaign Finance, Federalism, and the Case of the Long-Armed Donor, 81 U. Chi. L. Rev. Dialogue 77, 91 (2014), (on file with the Columbia Law Review) (“Even if Bluman’s fit with Citizens United ultimately remains uncomfortable, the Court’s decision to issue a two-word affirmance in the former seems only to confirm that the justices are unlikely to rethink a central piece of Citizens United.”). This argument is perhaps reinforced by the fact that the Bluman court relied in part on the dissent in Citizens United but not the majority opinion. See Bluman, 800 F. Supp. 2d at 289.

C. The First Amendment and the Overbreadth Doctrine

Litigators seeking to challenge a statute as violating the First Amendment may argue that it is unconstitutionally overbroad. Scholars trace the origins of First Amendment “overbreadth doctrine” to the Supreme Court’s 1940 decision in Thornhill v. Alabama. 87 310 U.S. 88 (1940); see also Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 863–64 (1991) (providing an overview of the historical origins of the overbreadth doctrine). Overbreadth challenges are unusual in several respects. First, they allow for third-party standing, 88 See Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (“[L]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the stat­ute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” (second alteration in original) (internal quotation marks omitted) (quoting Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956–57 (1984))). relaxing the typical requirement “that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” 89 Warth v. Seldin, 422 U.S. 490, 499 (1975). Additionally, under overbreadth doctrine, facial challenges to a law or regulation may be brought under a less stringent standard than usual. Normally, a plain­tiff “would have to establish ‘that no set of circumstances exists under which [the law] would be valid.’” 90 United States v. Stevens, 559 U.S. 460, 472 (2010) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). A law restricting speech, however, “may be invalidated as overbroad if ‘a substantial number of its applica­tions are unconstitutional, judged in relation to the statute’s plainly legit­imate sweep.’” 91 Id. at 473 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)); see also Virginia v. Hicks, 539 U.S. 113, 118 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).

The overbreadth doctrine allows parties to bring facial challenges to laws that restrict or chill constitutionally protected speech, out of a recognition “that the First Amendment needs breathing space.” 92 Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). For this reason, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” 93 Id. at 611–12; see also Hicks, 539 U.S. at 119 (“We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.”). Acknowledging that this is “strong medicine,” the Court has stated it should be applied “sparingly and only as a last resort.” 94 Broadrick, 413 U.S. at 613; see also Hicks, 539 U.S. at 119 (“[T]here are substantial social costs created by the overbreadth doctrine when it blocks application of a law to con­stitutionally unprotected speech, or especially to constitutionally unprotected conduct.”).

Therefore, to be declared facially invalid, a law must be substantially overbroad. 95 See United States v. Williams, 553 U.S. 285, 292 (2008) (“[W]e have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an abso­lute sense, but also relative to the statute’s plainly legitimate sweep.”); Broadrick, 413 U.S. at 615 (“[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”). While this concept “is not readily reduced to an exact defi­nition[,] . . . the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” 96 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984); see also New York v. Ferber, 458 U.S. 747, 772 n.27 (1982) (“[W]ithout a substantial over­breadth limitation, review for overbreadth would be draconian indeed. It is difficult to think of a law that is utterly devoid of potential for unconstitutionality in some conceivable application.” (internal quotation marks omitted) (quoting Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 859 n.61 (1970))). Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” 97 Vincent, 466 U.S. at 801.

In practice, this analysis often comes down to how prevalent the sit­uations are in which the court believes the law could be applied to pro­hibit protected speech. 98 See, e.g., United States v. Stevens, 559 U.S. 460, 481–82 (2010) (striking down a statute banning certain depictions of animal cruelty because its “presumptively impermissible applications . . . far outnumber any permissible ones”). Compare City of Houston v. Hill, 482 U.S. 451, 466–67 (1987) (striking down as overbroad an ordinance that made it illegal to interrupt police officers as they carried out their duties, since its “plain language is admittedly violated scores of times daily”), with Ferber, 458 U.S. at 773 (upholding a state law prohibiting child pornography even though it could apply to works with real value because such works would not constitute “more than a tiny fraction of the materials within the statute’s reach”). Professor Richard Fallon has argued for a bal­ancing test that weighs the state’s interest in sanctioning a particular kind of speech against the First Amendment interest in avoiding chilling pro­tected conduct, such that “[t]he more weighty the state’s context-specific interest . . . [and] the farther that chilled conduct lies from the central concerns of the First Amendment[,] . . . the more a federal court should hesitate about” invalidating a statute. 99 Fallon, supra note 87, at 894–95.

Courts can employ various tools to temper this “strong medicine.” They may construe a statute narrowly to avoid overbreadth problems. 100 See, e.g., Osborne v. Ohio, 495 U.S. 103, 115–16 (1990) (upholding the Ohio Supreme Court’s narrow construction of a statute in the face of an overbreadth chal­lenge); Boos v. Barry, 485 U.S. 312, 329–32 (1988) (upholding a lower court’s narrowing con­struction of a law which regulates gatherings near buildings in the District of Columbia occupied by foreign governments and subsequently finding that the statute was not sub­stantially overbroad). They may also sever an overbroad portion of a law from the rest of the statute and strike down only the overbroad provision while upholding the rest. 101 See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 507 (1985) (“In these circumstances, the issue of severability is no obstacle to partial invalidation, which is the course the Court of Appeals should have pursued.”); Ferber, 458 U.S. at 769 n.24 (“[I]f the federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be stricken down on its face; if it is severable, only the unconstitu­tional portion is to be invalidated.”). The Supreme Court has typically been more willing to adopt stat­ute-saving interpretations—thereby upholding laws against overbreadth challenges—in the criminal, rather than civil, context. 102 See The Supreme Court, 2007 Term—Leading Cases, 122 Harv. L. Rev. 276, 385–86 (2008) (“Although overbreadth claims are nominally available to both civil litigants and criminal defendants on equal terms, they have been almost invariably rejected by the Supreme Court when brought as defenses to prosecution . . . . [W]hen criminal defen­dants champion speech interests, courts may become less protective of First Amendment rights . . . .”).

Of course, in addition to the facial-challenge route allowed by over­breadth doctrine, a litigant can still argue that application of the law to her would be unconstitutional in the more conventional manner: as applied. This type of claimant “‘attacks the validity of [the statute] not facially, but as applied to his acts of solicitation,’ whereas the person invok­ing overbreadth ‘may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him.’” 103 Bd. of Trs. v. Fox, 492 U.S. 469, 482–83 (1989) (alteration in original) (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 462 & n.20 (1978)).

II. Evaluating the Legality of the Trump Tower Meeting

This Part examines the legal questions raised by the June 2016 meet­ing between members of the Trump campaign and Russian officials by applying the law discussed in Part I. Section II.A examines the scope of the phrase “thing of value” in the context of 52 U.S.C. § 30121. Section II.B considers the constitutional implications of a broad interpretation of the foreign national spending ban.

A. What Does “Thing of Value” Mean?

This section explores the range of activities that could be considered an illegal contribution or expenditure by a foreign national under the statutory language. Section II.A.1 discusses the relevant regulatory defini­tions. Section II.A.2 looks at past FEC precedent in handling intangible goods or services, such as information. Section II.A.3 examines how “thing of value” is interpreted in other legal contexts. Section II.A.4 con­siders how canons of statutory interpretation should inform the analysis.

1. Regulatory Definitions. — Under current campaign finance law, foreign nationals are prohibited from making campaign contributions and it is illegal to solicit such a contribution. 104 See supra section I.B.2. But a contribution need not be in the form of money. Rather, a “contribution” can be “[a] gift, subscription, loan . . . , advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 105 11 C.F.R. § 100.52(a) (2018) (emphasis added). “[A]nything of value includes all in-kind contribu­tions . . . [u]nless specifically exempted . . . .” 106 Id. § 100.52(d)(1) (second emphasis added). Providing goods or ser­vices for free, or for “less than the usual and normal charge”—meaning less than the market price at which goods would be ordinarily purchased or the prevailing commercially reasonable rate for services—constitutes a contribution. 107 Id. § 100.52(d)(1)–(2). Nearly identical language is used in the definition of “expenditure.” 108 See id. § 100.111(e). On its face, therefore, the statutory and regulatory lan­guage indicates a very broad application.

2. FEC Precedent. — Indeed, when faced with the question, the FEC has found that the foreign national spending ban covers a broad range of in-kind goods and services. In 1982, in one of the first advisory opinions (AOs) addressing this provision, the FEC held that a foreign national art­ist could not donate an original work of art to a U.S. Senate campaign for fundraising purposes. 109 FEC Advisory Op. 1981-51, at 1–2 (Jan. 29, 1982) [hereinafter FEC, AO 1981-51], [
The FEC determined that such a donation would be a “thing of value” provided in connection with an election and would therefore violate the foreign national spending ban. 110 Id. But see FEC Advisory Op. 1987-25, at 1–2 (Sept. 17, 1987) [hereinafter FEC, AO 1987-25], [] (holding that a foreign national student could work as an uncompensated volunteer, since such services fell under the exemption for uncompensated volunteer ser­vices). The two U.S. Code sections referred to in these AOs, 2 U.S.C. § 431(8)(B)(i) (vol­unteer services exemption) and § 441e (foreign national spending ban), are now codified at 52 U.S.C. § 30101(8)(B)(i) (Supp. IV 2017) and § 30121, respectively.
The 1987 AO does not clarify why the foreign national student’s volunteer services fall under the volunteering exemption, but the foreign national artist’s do not. Adding to the lack of clarity, the FEC acknowledged the potential conflict with FEC, AO 1981-51, supra note 109, but explicitly declined to overrule or supersede it. See FEC, AO 1987-25, supra, at 2. In 2015, the FEC finally expressly superseded AO 1981-51, determining that it failed to fully account for the volunteer services exemption. See FEC Advisory Op. 2014-20, at 3 n.5 (Mar. 19, 2015) [hereinafter FEC, AO 2014-20], []. The FEC did not, however, overrule AO 1981-51’s broad interpretation of “thing of value.” See id.

The FEC has also held that oral communications about valuable, campaign-related information can constitute a contribution. In 1990, a U.S. House of Representatives candidate, Sean Strub, sought guidance on accepting part-time volunteer services from a former rival for the same seat who had decided to drop out. 111 See FEC Advisory Op. 1990-12, at 1 (Aug. 3, 1990) [hereinafter FEC, AO 1990-12], [
That rival had commissioned a poll for his own campaign while still a candidate. 112 See id. The FEC determined that because the rival had commissioned the poll for his own candidacy and not in contemplation of working for the Strub campaign, the rival’s receipt of the poll results was a completion of the original transaction and his newly gained knowledge was therefore not a contribution to the Strub campaign. 113 See id. at 2. However, if the volunteer “impart[ed] poll result infor­mation” to anyone involved with the Strub campaign or “use[d] the poll information to advise [the Strub] campaign on matters such as cam­paign strategy or creating media messages,” then it would be considered a contribution. 114 Id. Similarly, in a 2001 enforcement matter, the FEC’s gen­eral counsel determined that sharing the findings from opposition research with a campaign free of charge constituted an in-kind contribution. 115 General Counsel’s Brief at 85, Cone, MURs 4568, 4633, 4634 & 4763 (FEC July 18, 2001), [] (finding that “the pre-emptive Opposition Research reports on various Republican candidates that were commissioned and paid for by Triad/CSM and Triad Inc.” consti­tuted “in-kind contributions”). Triad/CSM and Triad Inc., companies that billed them­selves as “for-profit enterprise[s] whose business was providing specialized information, advice and services to conservative donors in connection with their political and charitable contributions,” were determined by the FEC to be “unregistered and nonreporting politi­cal committees, whose major purpose was electoral activity.” Id. at 3. The FEC found that these entities spent tens of thousands of dollars conducting “pre-emptive” opposition research on Republican political candidates and then shared their findings with the can­didates in order to provide a “warning of what issues their opponents might raise during the upcoming campaign.” Id. at 85.

In 2007, the FEC advised a U.S. House candidate that he could not accept, free of charge, printed materials such as “flyers, advertisements, door hangers, tri-folds, [and] signs” from former Canadian political can­didates who had previously used those items in their own campaigns. 116 FEC Advisory Op. 2007-22, at 6 (Dec. 3, 2007) [hereinafter FEC, AO 2007-22], []. The FEC determined that this transaction would constitute an illegal contribution, “particularly in light of the broad scope of the prohibition on contributions from foreign nationals.” 117 Id. (emphasis added). The FEC may consider a good or service to be a “thing of value” for the purposes of campaign finance law even when “the value . . . may be nominal or difficult to ascertain.” 118 Id. at 5–6. In fact, “[t]he lack of a market, and thus the lack of a ‘usual and normal charge,’ . . . does not necessarily equate to a lack of value.” 119 First General Counsel’s Report at 8 n.12, Citizens for Responsibility & Ethics in Wash., MUR 5409 (FEC Sept. 1, 2004) [hereinafter FEC, MUR 5409], http:// []. But see infra note 208 and accompanying text (questioning the precedential value of a foot­note in a general counsel’s report).

In some circumstances, however, the FEC has found that foreign nationals may provide uncompensated volunteer services, which fall within the volunteer services exemption 120 11 C.F.R. § 100.74 (2018) (“The value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee is not a contribution.”); see also supra notes 73–75 and accompanying text (describing the volun­teer services exemption). and therefore do not count as a “contribution.” The same FEC AO that found that accepting printed campaign materials from Canadians would be prohibited also concluded that the U.S. House campaign could accept Canadian citizens as volun­teers to engage in canvassing and get-out-the-vote activities. 121 FEC, AO 2007-22, supra note 116, at 3; see also FEC, AO 2014-20, supra note 110, at 1–4 (concluding that a political action committee (PAC) can accept volunteer services from foreign nationals likely to result in the development of website code and logos); FEC Advisory Op. 2004-26, at 1–3 (Aug. 20, 2004) [hereinafter FEC, AO 2004-26], [] (concluding that a foreign national can engage in volunteer services for a congressional campaign and nonconnected PAC, so long as she does not take part in the decisionmaking processes); FEC, AO 1987-25, supra note 110 (concluding that a foreign national student can volun­teer for a presidential campaign).
The FEC has also previously determined that a concert performance by Elton John, a foreign national, at a fundraiser for Hillary Clinton’s 2008 presidential campaign fell under the volunteer exemption. See First General Counsel’s Report at 3, Am. Right to Life Action, MURs 5987, 5995 & 6015 (FEC Jan. 26, 2009) [hereinafter FEC, MURs 5987, 5995 & 6015], []. The FEC acknowledged the apparent conflict with FEC, AO 1981-51, supra note 109, at 2, but attempted to distinguish the two situations by noting that the foreign artist in 1982 proposed to donate “a tangible good (original artwork and the right to reproduce it), whereas . . . [i]n the present matter, Elton John’s uncompensated concert performance would constitute the donation of [a] service.” Id. at 7. This distinction is relevant because the volunteer exemption references “the value of services provided without compensa­tion.” 52 U.S.C. § 30101(8)(B)(i) (Supp. IV 2017) (emphasis added); see also 11 C.F.R. § 100.74 (“The value of services provided without compensation by any individual who vol­unteers on behalf of a candidate or political committee is not a contribution.” (emphasis added)). The FEC also cited another AO in which it had “concluded that uncompensated performances by individuals in the entertainment industry would be exempt from the definition of ‘contri­bution’ as long as the performers provided the services in their indi­vidual capacities and all costs associated with the performances themselves would be paid” by the candidate. FEC, MURs 5987, 5995 & 6015, supra, at 7–8 (citing FEC Advisory Op. 2007-08 (July 12, 2007), []).
Apparently recognizing the incongruence of treating two foreign national artists differently simply due to their medium of art, the FEC later rejected its earlier distinction between goods and services. See FEC, AO 2014-20, supra note 110, at 3 n.5 (“[T]o the extent that MURs 5987, 5996, and 6015 (Hillary Clinton For President) sought to distin­guish Advisory Opinion 1981-51 (Metzenbaum) by making a distinction between the pro­vision of volunteer services by a foreign national and the creation and donation of a tangi­ble good, the Commission does not adopt that reasoning.”).

It seems unlikely that what Veselnitskaya offered—as characterized by Goldstone 122 Goldstone’s email to Trump, Jr. claimed the Russian “Crown prosecutor . . . offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Becker, Goldman & Apuzzo, I Love It, supra note 1 (internal quotation marks omitted). He continued, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” Id. (internal quotation marks omitted). Goldstone was apparently referencing Yuri Chaika, Russia’s prosecutor general. See Ioffe, supra note 5. —could be deemed uncompensated volunteer services. “Political [o]pposition [r]esearch”—what Trump, Jr. believed he was being offered 123 Trump, Jr., supra note 14. —is a resource-intensive product that campaigns regularly pay for. 124 See infra notes 196–197, 210 (describing political opposition research as a mul­timillion-dollar industry). While the market value for such information might be difficult to ascertain, the FEC has indicated that valuation challenges do not prevent a good or service from constituting something of value and thus qualifying as a contribution. 125 See supra notes 118–119 and accompanying text. Even if what was shared was simply orally conveyed information about the findings of an opposition research operation, the information could likely constitute a banned contribution under AO 1990-12 if it were used to shape campaign strategy or messaging. 126 FEC, AO 1990-12, supra note 111, at 2; see also supra notes 111–114 and accom­panying text.

3. Other Legal Contexts. — “Thing of value” is a term that appears in other areas of the law, most notably the federal laws that prohibit giving bribes or gratuities to public officials. 127 See 18 U.S.C. § 201(b) (2012) (prohibiting, among other things, “corruptly giv[ing], offer[ing] or promis[ing] anything of value to any public official” with intent to influence an official act (emphasis added)); id. § 201(c) (prohibiting, among other things, “otherwise than as provided by law for the proper discharge of official duty . . . giv[ing], offer[ing], or promis[ing] anything of value” to public officials (emphasis added)); id. § 666 (prohibiting recipients of federal funds from “corruptly solicit[ing,] . . . demand[ing,] . . . or agree[ing] to accept, anything of value. . . intending to be influ­enced . . . in connection with any business, transaction, or series of transactions,” and pro­hibiting “corruptly giv[ing], offer[ing], or agree[ing] to give anything of value” to such entity with intent to influence (emphasis added)); see also 15 U.S.C. § 78dd-1 (2012) (prohibiting persons covered by the Foreign Corrupt Practices Act from paying or promis­ing “anything of value” to a foreign official in order to influence an official decision (empha­sis added)). Courts have construed “anything of value” in the bribery context very broadly, covering intangibles such as sex, 128 See United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008). expungement of convictions, 129 See United States v. Fernandes, 272 F.3d 938, 944 (7th Cir. 2001). a promise of future employ­ment, 130 See United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986). reduced police investigation of drug trafficking, 131 See United States v. Robinson, 663 F.3d 265, 267 (7th Cir. 2011). and incre­mental increases in freedom while incarcerated. 132 See United States v. Townsend, 630 F.3d 1003, 1011 (11th Cir. 2011). The objective value of a “thing of value” in this context is less relevant than the subjective value attached to it by the recipient. 133 See Gorman, 807 F.2d at 1305 (“In order to put the underlying policy of the stat­ute into effect, the term ‘thing of value’ must be broadly construed. Accordingly, the focus of the above term is to be placed on the value which the defendant subjectively attaches to the items received.”); United States v. Williams, 705 F.2d 603, 623 (2d Cir. 1983) (“We think [the trial judge] correctly construed the statutes to focus on the value that the defen­d­ants subjectively attached to the items received. The phrase ‘anything of value’ in bribery and related statutes has consistently been given a broad meaning . . . .”).

“Thing of value” also appears in a range of other statutory contexts in which courts have interpreted the language broadly to encompass intan­gibles, including federal laws prohibiting influencing trustees of employee benefit plans, 134 18 U.S.C. § 1954 (2012) (prohibiting any “administrator, officer, [or] trustee . . . of any employee welfare [or pension] benefit plan . . . [from] receiv[ing] or agree[ing] to receive or solicit[ing] any fee, kickback, commission, gift, loan, money, or thing of value” in exchange for being influenced with respect to any matter concerning the plan (emphasis added)); see also, e.g., United States v. Rosenthal, 9 F.3d 1016, 1023 (2d Cir. 1993) (“We have interpreted the phrase ‘thing of value’ [in § 1954] to include both tangible and intan­gible things.”); United States v. Schwartz, 785 F.2d 673, 680–81 (9th Cir. 1986) (“Nothing in the legislative history of section 1954 suggests that Congress intended thing of value to be construed more narrowly than in other statutes employing the phrase . . . . The very words and purpose of the statute show that Congress clearly intended the scope of thing of value to include intangibles . . . .”). false impersonation of an officer of the United States, 135 18 U.S.C. § 912 (“Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States . . . and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned . . . .” (emphasis added)); see also, e.g., United States v. Sheker, 618 F.2d 607, 609 (9th Cir. 1980) (rejecting the government’s “sweeping position that 18 U.S.C. 912 extends to anything that has value to the defendant” but acknowledging that “[i]nformation can be a thing of value” and “[i]nformation obtained for political advan­tage might have value apart from its worth in dollars”). conversion of federal property, 136 18 U.S.C. § 641 (prohibiting the unauthorized sale, conveyance, or disposal of “any record, voucher, money, or thing of value of the United States” (emphasis added)); see also, e.g., United States v. Collins, 56 F.3d 1416, 1420 (D.C. Cir. 1995) (noting that “every circuit, except one, dealing with this issue has held that intangible property falls within the purview of section 641”); United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991) (“[I]nformation is a species of property and a thing of value [for the purposes of § 641].”). certain financial transactions between labor organizations and employer representatives, 137 29 U.S.C. § 186 (2012) (prohibiting any employer or employer’s representative from “pay[ing], lend[ing], or deliver[ing] . . . any money or other thing of value” to a labor representative and prohibiting any labor representative from demanding or accepting any such payment, loan, or delivery (emphasis added)); see also, e.g., Mulhall v. Unite Here Local 355, 667 F.3d 1211, 1215 (11th Cir. 2012) (applying “common sense” to determine that assistance in organizing “can be a thing of value”); United States v. Douglas, 634 F.3d 852, 858 (6th Cir. 2011) (rejecting the argument “that the word ‘other’ in the phrase ‘money or other thing of value’ constrains ‘thing of value’ to things of monetary value”). mailing threatening communications, 138 18 U.S.C § 876(b)–(d) (prohibiting mailing “any communication containing any threat to kidnap any person or any threat to injure the person [or] . . . any threat to injure the property or reputation of the addressee or of another” with “intent to extort from any person any money or other thing of value” (emphasis added)); see also, e.g., United States v. Nilsen, 967 F.2d 539, 543 (11th Cir. 1992) (per curiam) (holding that witness testimony is a “thing of value” under § 876 because “the phrase ‘thing of value’ is a clearly defined term that includes intangible objectives”). and extortion across state lines. 139 18 U.S.C. § 875(b)–(d) (prohibiting the communication of a threat to kidnap or injure a person or damage property or a person’s reputation across state lines “with intent to extort from any person . . . any money or other thing of value” (emphasis added)); see also, e.g., United States v. Hobgood, 868 F.3d 744, 747 (8th Cir. 2017) (holding that an apology can constitute a “thing of value” for the purposes of § 875(d)). As early as 1979, the Second Circuit recognized that the phrase “thing of value” could be “found in so many criminal statutes throughout the United States that [the words] have in a sense become words of art” that courts consistently construe broadly. 140 United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979).

To be sure, these laws occupy a different legal field than campaign finance, and there are other limitations on their scope, such as the require­ments that the “thing of value” be given with corrupt intent 141 See generally Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 796–806 (1985) (exploring the meaning of “cor­rupt intent” in the bribery context). or in exchange for an “official act” 142 See McDonnell v. United States, 136 S. Ct. 2355, 2371–72 (2016) (clarifying the definition of “official act” in 18 U.S.C. § 201). in the case of the bribery statutes. However, Congress should have been aware of these expansive construc­tions when it enacted an updated version of the foreign national spend­ing ban in 2002 with the same “money or other thing of value” lan­guage. 143 Bipartisan Campaign Reform Act of 2002, Pub L. No. 107-155, § 303, 116 Stat. 81, 96 (codified at 52 U.S.C. § 30121 (Supp. IV 2017)) (“It shall be unlawful for . . . a foreign national, directly or indirectly, to make . . . a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or dona­tion, in connection with a Federal, State, or local election . . . .” (emphasis added)). Seemingly the only reason for Congress to include “thing of value” in this part of the statute would be to encompass a broader range of activities within the meanings of “contribution” and “expenditure” than simply spending money.

4. Canons of Interpretation. — When confronted with a statutory term that appears ambiguous, courts will sometimes apply canons of construc­tion to aid in interpretation, such as noscitur a sociis 144 Noscitur a sociis, Black’s Law Dictionary (10th ed. 2014) (“[T]he meaning of an unclear word or phrase, esp[ecially] one in a list, should be determined by the words imme­­diately surrounding it.”). or ejusdem generis. 145 Ejusdem generis, Black’s Law Dictionary (10th ed. 2014) (“[W]hen a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.”); see also Yates v. United States, 135 S. Ct. 1074, 1085–87 (2015) (applying noscitur a sociis and ejusdem generis to interpret an ambiguous statutory phrase). However, these canons are probably of limited utility here. The “list” in the foreign national spending ban consists only of “money or other thing of value.” 146 52 U.S.C. § 30121(a). One could argue that the contextual defini­tion of “thing of value” should be cabined by “money,” but this interpre­tation is problematic. Because there are only two items here, reading “thing of value” to be constrained by “money” might violate the rule against surplusage, “the presumption that every statutory term adds some­thing to a law’s regulatory impact.” 147 William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 275 (2d ed. 2006). Moreover, when a statutory “phrase is disjunctive, with one specific and one general category, . . . [t]he absence of a list of specific items undercuts the inference embod­ied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase.” 148 Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008).

Importantly, construing “thing of value” too narrowly here would undermine the regulatory regime established by FECA, since the foreign national spending ban could be easily circumvented if “thing of value” is interpreted to exclude intangible information. Under this reading, a for­eign national would be prohibited from providing a cash contribution to a campaign—money which could be used to finance campaign opera­tions, such as conducting polls—but would not be prohibited from providing in-kind support so long as it is intangible information, such as polling data.

B. “Thing of Value” and the First Amendment

This section examines the constitutional implications of a broad inter­pretation of “thing of value” in the foreign national spending ban context. Section II.B.1 discusses the First Amendment rights at stake. Sec­tion II.B.2 considers whether the broad reading renders the foreign national spending ban overbroad by considering potentially problematic hypothetical applications. Section II.B.3 addresses the spending ban’s application to the June 2016 meeting.

1. The Rights at Stake. — Almost immediately after the New York Times first revealed the June 2016 meeting’s existence, a debate commenced over the legality of the events that had occurred. A trio of watchdog groups soon filed a complaint with the FEC and requested that the DOJ launch a criminal investigation. 149 Letter from Paul S. Ryan, Vice President, Common Cause, Brendan M. Fischer, Campaign Legal Ctr., & Fred Wertheimer, Democracy 21, to Rod J. Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Justice, & Robert Mueller, Special Counsel, U.S. Dep’t of Justice (July 13, 2017), []. Several leading campaign finance experts asserted that Trump, Jr.’s actions certainly appeared to be a viola­tion of the prohibition on soliciting foreign national contribu­tions. 150 See, e.g., Bob Bauer, If “Love” Knows No Bounds: On Criminal “Intent” and the Scope of Campaign Finance Law, Just Security (July 25, 2017), []; Richard L. Hasen, Donald Trump Jr.’s Free Speech Defense, Slate (July 12, 2017), [] [hereinafter Hasen, Free Speech Defense]. However, other commentators expressed skepticism that “thing of value” could be read so broadly in this context 151 See, e.g., Saikrishna Bangalore Prakash, The Russia Connections May Yet Bring Trump Down. But Right Now Critics Are Crying Wolf., Vox (July 17, 2017), [] (“Reading ‘anything of value’ to cover any useful information raises a host of troublesome issues. Campaigns rou­tinely . . . get tips, firsthand accounts, and scurrilous rumors. Is each one of these to be logged, appraised for value, and reported as a contribution?”); David M. Shapiro, Opinion, How the First Amendment Could Save Don Jr., Hill (Aug. 3, 2017), [] (arguing that judges would likely invoke the constitu­tional avoidance doctrine to interpret “thing of value” narrowly in order to avoid any First Amendment conflict); Jed Shugerman, Re-Thinking the “Thing of Value” Campaign Finance Charge Against Don Jr., Shugerblog (July 12, 2017), [] (arguing that an overly broad read­ing of “thing of value” “would criminalize a campaign official talking to foreign nationals about anything related to the opponent or even their own candidate”). and cautioned that if it could, then the statute was likely unconstitutionally overbroad, infring­ing on both foreign nationals’ free speech rights and American citizens’ rights to hear foreign nationals speak. 152 See Eugene Volokh, Opinion, Can It Be a Crime to Do Opposition Research by Asking Foreigners for Information?, Wash. Post: Volokh Conspiracy (July 12, 2017), [] [hereinafter Volokh, Can It Be a Crime?]; Eugene Volokh, Opinion, The Strikingly Broad Consequences of the Argument that Donald Trump Jr. Broke the Law by Expressing Interest in Russian Dirt on Hillary Clinton, Wash. Post: Volokh Conspiracy (July 14, 2017), [] [hereinafter Volokh, Strikingly Broad].

Foreigners do have speech rights protected by the First Amendment. In 1945, noting that “[f]reedom of speech and of press is accorded aliens residing in this country,” the Supreme Court in Bridges v. Wixon blocked a permanent resident’s deportation proceedings that were initiated due to his associations with the Communist Party. 153 326 U.S. 135, 148, 156 (1945). But see Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491–92 (1999) (“When an alien’s continuing presence in this coun­try is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a mem­ber of an orga­nization that supports terrorist activity.”); Harisiades v. Shaughnessy, 342 U.S. 580, 582, 591–92 (1952) (holding that the First Amendment does not bar the depor­tation of a resident alien who is a member of an organization promoting the violent over­throw of the government and who distributes literature so advocating). Unlike the petitioner in Bridges, however, Veselnitskaya is not a legal permanent resident. 154 Brendan Pierson, Judge Denies Request to Return to U.S. by Russian Lawyer Who Met Trump Jr., Reuters (Nov. 3, 2017), [] (describing Veselnitskaya’s expired temporary permission to enter the United States). While foreigners without permanent resident status may still retain some First Amendment protections, 155 See Underwager v. Channel 9 Austl., 69 F.3d 361, 365 (9th Cir. 1995) (“We con­clude that the speech protections of the First Amendment at a minimum apply to all per­sons legally within our borders.”); cf. Maryam Kamali Miyamoto, The First Amendment After Reno v. American-Arab Anti-Discrimination Committee: A Different Bill of Rights for Aliens?, 35 Harv. C.R.-C.L. L. Rev. 183, 184–88 (2000) (arguing that the correct interpreta­tion of the Bill of Rights would extend the same First Amendment protections regardless of immigration status, but acknowledging that Supreme Court jurisprudence does not reflect this). the Court has recognized that the constitutional rights afforded foreigners temporarily in the country may be lesser than those afforded lawful permanent residents. 156 See United States v. Verdugo-Urquidez, 494 U.S. 259, 270–71 (1990) (finding that several cases that recognized foreigners’ constitutional rights were inapposite because they granted constitutional protections “when [the foreigners] have come within the territory of the United States and developed substantial connections with this country” whereas Respondent, a foreigner, “had no previous significant voluntary connection with the United States”). Moreover, Congress has already distinguished between these groups within this area of the law by excluding lawful permanent residents from the foreign national spend­ing ban. 157 See 52 U.S.C. § 30121(b) (Supp. IV 2017) (“[T]he term ‘foreign national’ means . . . an individual who is not a citizen . . . or a national of the United States . . . and who is not lawfully admitted for permanent residence . . . .”). The Bluman court, in dismissing the plaintiffs’ argument that FECA was underinclusive because it did not prohibit contributions by lawful permanent residents, held that “Congress may reasonably con­clude that lawful permanent residents of the United States stand in a different relationship to the American political community than other foreign citizens do,” since they, unlike temporary visitors, “have a long-term stake in the flourishing of American society” and “share important rights and obligations with citizens.” 158 Bluman v. FEC, 800 F. Supp. 2d 281, 290–91 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012) (“In fact, one might argue that Congress’s carve-out for lawful permanent residents makes the statute more narrowly tailored to the precise interest that it is designed to serve—namely, minimizing foreign participation in and influence over American self-government.”). Bluman acknowledged that for­eigners enjoy many constitutional protections, including under the First Amendment, 159 Id. at 286–87 (listing cases finding constitutional protections for foreigners). but nevertheless concluded that the government retains a compelling interest in “limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby pre­venting foreign influence over the U.S. political process.” 160 Id. at 288; see also supra notes 81–84 and accompanying text.

Professor Eugene Volokh, a leading First Amendment scholar, con­tends that the decision should be understood as “limited to the restriction on spending money.” 161 Volokh, Can It Be a Crime?, supra note 152. Professor Volokh likely had this line in mind: “[52 U.S.C. § 30121] restrains [foreign nationals] only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.” Bluman, 800 F. Supp. 2d at 290; see also infra notes 185–189 and accom­panying text (discussing Bluman’s treatment of express- and issue-advocacy expenditures). But this reading is probably too nar­row. Bluman’s rationale that the government has a compelling interest in preventing foreign influence over American elections would seem to apply to contributions or expenditures “in connection with a[n] . . . elec­tion” 162 52 U.S.C. § 30121(a). regardless of whether they take the traditional form of money. Indeed, one of the expenditures at issue in Bluman was a plaintiff’s print­ing and distribution of flyers supporting President Obama’s reelection, not a cash contribution. 163 See Bluman, 800 F. Supp. 2d at 285. This activity would qualify as an “expendi­ture” 164 See § 30101(9)(A)(i) (defining “expenditure” as “any purchase, payment, distri­bution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office”). rather than a “contribution” because the flyers were not directly provided to the Obama campaign. Nevertheless, the plaintiff’s flyers are sufficiently analogous to the political opposition research that Trump, Jr. believed he would receive to be relevant to the question at hand. 165 Notably, in fact, the Supreme Court has treated limits on expenditures much more skeptically than they have limits on contributions. See supra notes 40–46 and accompany­ing text. The plaintiff sought to provide information to the public in the form of a pamphlet in order to influence an American election—much as Trump, Jr. sought to receive information in the form of “[p]olitical [o]pposition [r]esearch” from a foreign national in order to influence an American election 166 See supra notes 14–20 and accompanying text. —an activity which was found to be prohibited by the foreign national spending ban in a case upheld by the Supreme Court. 167 Bluman, 800 F. Supp. 2d at 283, aff’d mem., 565 U.S. 1104 (2012) (“[T]he federal ban at issue here readily passes constitutional muster.”). Thus, Bluman should foreclose the foreign national’s First Amendment argu­ments in the context of the June 2016 meeting.

However, Americans also have a First Amendment right to seek and hear speech by foreigners. In Lamont v. Postmaster General, the Supreme Court held that the Post Office could neither intercept nor detain mail deemed to be “communist political propaganda” nor require the addressee to affirmatively indicate a desire to receive the message before completing delivery. 168 381 U.S. 301, 305 (1965). Even though the speech originated overseas, the government could not impose this sort of affirmative obligation as a pre­requisite to receiving the speech because “[t]his requirement is almost certain to have a deterrent effect.” 169 Id. at 307 (“The regime of this Act is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” (quot­ing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))). But cf. Timothy Zick, The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation, 52 B.C. L. Rev. 941, 950–51 (2011) (“Lamont can be interpreted as a narrow decision that made no grand statement regarding the importance of cross-border communication.”). Thus, in Kleindienst v. Mandel, the Court—even as it upheld the government’s denial of a visa to a Belgian journalist due to his Marxist views—acknowledged the First Amendment interests of the Americans who invited him to hear him speak in per­son. 170 See 408 U.S. 753, 763­–64 (1972) (“The concern of the First Amendment is not with a non-resident alien’s individual and personal interest in entering and being heard, but with the rights of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views . . . .” (internal quotation marks omitted) (quoting Mandel v. Mitchell, 325 F. Supp. 620, 631 (E.D.N.Y. 1971), rev’d, Kleindienst, 408 U.S. 753)). Today, it is “well established that the First Amendment protects not only the rights of people to engage in speech but also the right of audiences to receive it.” 171 Marc Jonathan Blitz, Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information, 74 UMKC L. Rev. 799, 800 (2006).

2. Applying the Foreign National Spending Ban to Information. — If a court were to strike down the foreign national spending ban as overbroad, it would have to conclude that there is a “realistic danger” that the stat­ute would chill or prohibit constitutionally protected speech in a signif­icant number of situations. 172 Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 800­–01 (1984). To flesh out this analysis, it is worth con­sidering the foreign national spending ban’s application to sev­eral hypo­thetical scenarios posited by Professor Volokh.

One set of scenarios involves presidential campaign staff seeking to question foreigners to obtain potentially damaging information about their electoral opponent—for example, a Hillary Clinton cam­paign staffer interviewing a Slovakian student who participated in the Miss Universe pageant about her experiences with Donald Trump; a Bernie Sanders staffer seeking to interview foreigners about rumored misconduct by Hillary Clinton as Secretary of State on a trip abroad; or a Ted Cruz staffer seeking to interview undocumented immigrant employ­ees of Mar-a-Lago about working conditions. 173 See Volokh, Can It Be a Crime?, supra note 152. Would FECA prohibit these as illegal solicitations of a foreign contribution?

The answer is probably not. The activities described would most likely fall under the volunteer exemption, at least insofar as the foreign­ers were not otherwise compensated for their services and did not partic­ipate in campaign decisionmaking. 174 See 11 C.F.R. § 110.20(i) (2018) (“A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision-making process of any per­son . . . with regard to such person’s Federal or non-Federal election-related activi­ties . . . .”); see also supra notes 120–121 and accompanying text. Notably, the volunteer services exemp­tion can apply even in the absence of a formal “volunteering” rela­tionship with the campaign. 175 See supra note 75 and accompanying text. In these scenarios, the campaign staffers are soliciting information that the foreign nationals already possess and have acquired in the course of their day-to-day lives without any compen­sation for doing so. This is unlike, say, a memorandum documenting the fruits of an oppo­sition research operation that required substantial resources to assemble—what Professor Richard Hasen refers to as “com­piled information.” 176 See Hasen, Free Speech Defense, supra note 150. A complicating factor in this analysis could arise if the campaign staff sought to interview foreign nationals who were offi­cials of a foreign government. If the relevant information such foreigners had was obtained in the course of performing their jobs, it is less clear that it was “uncompensated.” Additionally, there may be good reason for the law in this area to treat foreign government officials differently than other for­eign nationals. 177 See infra notes 219–220 and accompanying text. Professor Hasen argues that FECA distinguishes between “foreign principals,” which includes foreign governments, and other “foreign nationals”; that Congress, under Bluman, undoubtedly “has the power consistent with the First Amendment to bar foreign governments from contributing things of value to U.S. election campaigns”; and that therefore “[t]he part of the statute barring for­eign government interference in U.S. elections is severable and not overbroad.” Richard L. Hasen, Cheap Speech and What It Has Done (to American Democracy), 16 First Amend. L. Rev. 200, 220 n.88 (2018) [hereinafter Hasen, Cheap Speech].

Several other hypothetical examples involve variations of journalists seeking information from foreign nationals to write about candidates. Professor Volokh considers scenarios such as a New York Times reporter being approached by a Turkish businessman with damaging information about Donald Trump, or a reporter calling contacts in foreign govern­ments and embassies for information they possess on a candidate with a diplomatic background. 178 See Volokh, Strikingly Broad, supra note 152. If made “for the purpose of influencing” an election, then this “gift” of information could qualify as a prohibited expendi­ture, which the journalist would be barred from soliciting. 179 52 U.S.C. § 30101(9)(A)(i) (Supp. IV 2017); id. § 30121.

As noted previously, however, the media exemption has been applied quite broadly, especially with respect to persons and institutions that are unquestionably part of the media; 180 See supra notes 69–72 and accompanying text. thus, the New York Times reporters Professor Volokh has in mind would almost certainly avoid lia­bility under campaign finance law. If it is less clear that the entity in ques­tion is a member of the media, the FEC will apply its multistep analysis to determine whether the media exemption applies—but this, too, has trended toward a broad application of the exemption. 181 See supra note 72 (describing the FEC’s test for applying the media exemption and the trend toward broader application of the exemption).

While the media exemption would shield the media entity from lia­bility, it appears unlikely that it would provide the same protection for the foreign national offering the information. 182 See 11 C.F.R. § 100.73 (2018) (“Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication, is not a contribution . . . .” (emphasis added)); id. § 100.132 (articulating the same rule for expenditures). In other words, costs incurred by a reporter or media entity in publishing a story would be exempt, but costs incurred by a foreign national acting as a source for that same story would not be. This outcome does raise serious First Amendment concerns. Even if prosecutions of foreign nationals are unlikely—both because of jurisdictional complications for foreigners located abroad and because of journalists’ willingness to pro­tect their sources—there may well be a chilling effect on the provision of information relevant to American elections because foreign nationals may become more reluctant to share information with American journal­ists. This scenario highlights the tensions inherent in balancing the need to avoid “depriv[ing] [the public] of an uninhibited marketplace of ideas” 183 Citizens United v. FEC, 558 U.S. 310, 335 (2010) (internal quotation marks omit­ted) (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)). while simultaneously “preventing foreign influence over the U.S. political process.” 184 Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012).

It is also possible that Bluman already forecloses application of the foreign national spending ban to the scenarios discussed above involving the provision of information to non-campaign recipients. Such transac­tions would potentially be “expenditures” rather than “contributions” like the June 2016 meeting, at least so long as they were not made “in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign.” 185 Types of Contributions, FEC,
candidate-taking-receipts/types-contributions/ [] (last visited Sept. 19, 2018).
Although Bluman squarely upheld appli­cation of the foreign national spending ban to one form of expendi­ture—express advocacy, which in that case consisted of flyers supporting President Obama’s reelection—Judge Kavanaugh explained that the court interpreted the statute as not barring issue advocacy, “that is, speech that does not expressly advocate the election or defeat of a specific candidate.” 186       Bluman, 800 F. Supp. 2d at 284. The distinction between express and issue advo­cacy, like the distinction between contributions and expenditures, stems from Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). See Richard Briffault, Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?, 85 Minn. L. Rev. 1729, 1735 (2001). Given that the only expenditure at issue was express advocacy, this interpretation was unnecessary to decide the case and should therefore probably be considered dicta. 187 See Hasen, Cheap Speech, supra note 177, at 219. It also contrasts with the broad language of the statute itself. 188 See 52 U.S.C. § 30121 (Supp. IV 2017) (barring foreign nationals from making “con­tribution[s] or donation[s] of money or other thing of value . . . [and] expenditure[s], independent expenditure[s], or disbursement[s] for an electioneering communication”). Although the Bluman court did not elaborate on its reasoning on this point, it may well have been moti­vated by the same overbreadth concerns raised by Professor Volokh to apply a narrowing statutory construction. 189 However, it expressly declined to reach the constitutional question on this point. See Bluman, 800 F. Supp. 2d at 292 (“[W]e do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures.”). Whether or not this is the correct reading of the statute, however, would not affect its application to a situation like the June 2016 meeting, where the recipient of the infor­mation is the campaign itself.

For the reasons discussed above, 190 See supra notes 153–171 and accompanying text. the key interest at stake is likely to be the American audience’s First Amendment right to receive infor­mation about candidates in American elections, rather than the foreign national’s First Amendment right to make political speech. Whether the foreign national spending ban would chill enough speech to be consid­ered substantially overbroad if construed to prohibit soliciting potentially incriminating information about political candidates is a difficult ques­tion. Thus, the executive, legislative, and judicial branches should con­sider taking steps to clarify or modify the law’s application. When doing so, these institutions could keep in mind Professor Fallon’s forthright bal­ancing framework, which he acknowledges “has an irreducible compo­nent of policy”: weighing the governmental interest in preventing foreign influence over American elections against the interests of American citi­zens in learning and gathering information about political candidates. 191 Fallon, supra note 87, at 894–95.

3. Applying the Foreign National Spending Ban to the June 2016 Meeting. — To date, the public reporting and testimony of the partic­ipants in the June 2016 meeting indicate that no physical documents were exchanged and that the conversation was limited to issues surrounding the Magnitsky Act, rather than damaging information about Hillary Clinton. 192 See supra notes 15–19 and accompanying text. Thus the potential violation of the foreign national spending ban would probably be based on what Trump, Jr. believed he would be receiving by attending the meeting—what he solicited, 193 See 11 C.F.R. § 300.2(m) (2018) (“A solicitation is an oral or written communica­tion that, construed as reasonably understood in the context in which it is made, contains a clear message asking . . . or recommending that another person make a contribution, donation, . . . or otherwise provide anything of value. A solicitation may be made directly or indirectly.”). as opposed to what he in fact received. And Trump, Jr. says he expected to receive “[p]olitical [o]ppo­sition [r]esearch” 194 See supra note 14. that was described to him as “official documents and information that would incriminate Hillary [Clinton].” 195 See supra notes 4–10 and accompanying text.

On balance, the First Amendment rights at stake in this scenario should not trump the foreign national spending ban enacted by Congress. Opposition research, whether conducted directly by campaign staffers or purchased from professional research firms, is an important element of modern American political campaigns. 196 See Larry J. Sabato & Howard R. Ernst, Encyclopedia of American Political Parties and Elections 250 (updated ed. 2007) (“Opposition research has become a staple of the modern American campaign at almost every level of government . . . . [O]pposition research has become increasingly professionalized. Firms and individuals on both sides of the political aisle peddle their sleuthing services to campaigns . . . .”); Evan Halper, Once a Dark Art, Opposition Research Comes Out of the Shadows for 2016 Campaigns, L.A. Times (May 27, 2015), [] (“Political oppo­sition research, once a mostly unmentioned dark art, has turned into a garish, mul­timillion-dollar enterprise . . . . The research machines have emerged from the back office of party head­quarters and into the high-stakes world of political fundraising.”). The information unearthed has value to campaigns, demonstrated by their willingness to pay for the services of professional researchers. 197 See Sabato & Ernst, supra note 196; Halper, supra note 196; see also infra note 210. Professor Volokh and other com­mentators raise worthwhile concerns about the range of activi­ties poten­tially covered by a broad interpretation of “thing of value.” 198 See supra notes 151–152. Yet it is also worth considering the consequences of too narrow an inter­pretation. Clearly, the spending ban prohibits a foreign national from making a cash contribution to a campaign, 199 See 52 U.S.C. § 30121 (Supp. IV 2017). money which would then be used to fund campaign activities, including opposition research. But if “thing of value” does not encompass opposition research, then a foreign national could effectively circumvent the ban by simply providing this service in-kind—and campaigns could freely solicit such services, includ­ing from foreign governments and intelligence agencies, thereby under­mining the purpose and efficacy of federal campaign finance law. 200 It is worth noting that the Supreme Court has recognized preventing the circum­vention of contribution limits as a justification for several kinds of restrictions on contribu­tions. See Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 Val. U. L. Rev. 397, 437 (2015) (“The Supreme Court first recognized an anti-circumvention justification for restricting campaign finance activity in Buckley . . . .”). Although recent precedent indicates that courts “will more closely probe the fit between the seriousness of a circumvention problem and the restriction intended to prevent it, there is nothing in the Court’s recent campaign finance jurisprudence that suggests that [anti-circumvention] . . . is no longer a constitutionally substantial interest capable of justi­fying a campaign finance restriction.” Id. at 439.

Considering the “thing of value” at issue here—the “[p]olitical [o]pposition [r]esearch” or incriminating “official documents or infor­mation” that Trump, Jr. believed he would be receiving—helps ground this question in the compelling governmental interest identified in Bluman: “limiting the participation of foreign citizens in activities of American democratic self-government, and . . . thereby preventing for­eign influence over the U.S. political process.” 201 Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012). Bluman explains that “[w]hen an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government.” 202 Id. at 289 (emphasis added). Providing opposition research on a political opponent—which likely would have required the expenditure of resources to assem­ble—directly to a political campaign should be understood as such an act “directly targeted at influencing the outcome of an election.” 203 Id. The com­pelling interest identified in Bluman should therefore justify the burdens on speech imposed by the foreign national spending ban in a scenario such as the June 2016 meeting, in which a campaign solicits polit­ical opposition research from a foreign national. 204 However, even if the First Amendment concerns are insufficient to prevent appli­cation of the foreign national spending ban to the June 2016 meeting, there may be other considerations that would point toward avoiding criminal liability. See, e.g., id. at 292 (“[W]e caution the government that seeking criminal penalties for violations of this provi­sion—which requires that the defendant act ‘willfully’—will require proof of the defen­dant’s knowledge of the law.” (citation omitted) (quoting 2 U.S.C. § 437g(a)(5)(C), (d)(1)(A) (2006))); see also United States v. Santos, 553 U.S. 507, 514 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”).

III. Next Steps: Courts, the FEC, and Congress

This Part proposes new approaches courts, the FEC, and Congress can employ to resolve the constitutional and policy concerns raised by a broad reading of the foreign national spending ban. Section III.A con­siders narrowing constructions courts could apply to avoid striking down the ban if they consider a broad reading substantially overbroad. Section III.B discusses steps the FEC could take to clarify application of the for­eign national spending ban. Section III.C considers legislative changes that could improve this area of the law.

A. Judicial Approaches

Section III.A.1 discusses narrowing constructions courts could apply to the foreign national spending ban to avoid applications that pose con­stitutional problems. Section III.A.2 proposes a framework for balancing the competing interests at stake.

1. Narrowing Constructions. — One method by which courts avoid administering the “strong medicine” of striking down a law for being unconstitutionally overbroad is to construe it narrowly so as to reduce the number of situations in which constitutionally protected speech is chilled. 205 See supra note 100 and accompanying text. Nevertheless, courts are not legislatures and cannot simply rewrite legislation as they see fit. 206 See William W. Bierce, Ltd. v. Hutchins, 205 U.S. 340, 347 (1907) (“[C]ourts are not legislatures and are not at liberty to invent and apply specific regulations according to their notions of convenience.”). In theory, one approach to limiting the law’s application might be to focus on foreign governments and agents thereof, or to narrow the ban on solicitation from covering any person to solely agents of political campaigns. But terms such as “foreign national,” “person,” and “solicit” are clearly defined, leaving very little ambiguity or room for alternative constructions. 207 See 52 U.S.C. § 30101(11) (Supp. IV 2017) (defining “person” for FECA pur­poses); id. § 30121(b) (defining “foreign national”); 11 C.F.R. § 110.20(a)(6) (2018) (ref­erencing and incorporating the definition of “solicit” in 11 C.F.R. § 300.2(m)); id. § 300.2(m) (defining “solicit”).

Courts might then focus instead on constraining the scope of the term “thing of value” itself, perhaps by requiring there to be an existing market upon which a good or service is commercially available and sold for it to qualify as a “thing of value.” While the FEC has previously sug­gested that “a lack of a market . . . does not necessarily equate to a lack of value,” that language comes from a footnote in a general counsel’s report rather than a formal decision by the commissioners. 208 FEC, MUR 5409, supra note 119, at 8 n.12. The fact that the regulatory definition of “anything of value” references a departure from the “usual and normal charge” seems to presuppose the existence of some kind of market, even if the good or service is not something that is sold frequently. 209 11 C.F.R. § 100.52(d). Such a definition would probably still cover the June 2016 meeting, since opposition research—which Donald Trump, Jr. says he believed he would be receiving—is frequently purchased by campaigns. 210 See Larry J. Sabato & Glenn R. Simpson, Dirty Little Secrets: The Persistence of Corruption in American Politics 154–64 (1996) (describing the emergence of political opposition research as a multimillion-dollar industry beginning in the early 1990s). Glenn Simpson, then a Wall Street Journal reporter, would go on to found Fusion GPS, a small firm that conducts opposition research and gathers intelligence for both corporate and politi­cal clients. See Jack Gillum & Shawn Boburg, ‘Journalism for Rent’: Inside the Secretive Firm Behind the Trump Dossier, Wash. Post (Dec. 11, 2017), []. Fusion GPS was responsible for com­piling the now-infamous “Steele Dossier” alleging that the Russian government possessed compromising information on Donald Trump and was coordinating to assist his campaign. Id. Fusion GPS’s client was Perkins Coie, the law firm representing both Hillary Clinton’s presidential campaign and the Democratic National Committee, which paid Fusion $1.02 million in 2016—perhaps indicative of just how valu­able political opposition research can be. Id. It might exclude, however, the broadest, fully subjective constructions of “thing of value,” which courts have applied in other statutory contexts, encompassing “things” like apologies. 211 See, e.g., United States v. Hobgood, 868 F.3d 744, 747 (8th Cir. 2017).

Even with a broad definition of “thing of value,” courts could look to other elements of the foreign national spending ban to avoid unconstitu­tional applications. Some of the more potentially problematic scenarios Professor Volokh posited involved communications between foreigners and journalists. 212 See supra section II.B.2. These scenarios involve “expenditures” rather than “contributions,” since the recipient of the “thing of value,” the journalist, is not a campaign or political committee—nonetheless, expenditures are still prohibited by the foreign national spending ban. 213              See 52 U.S.C. § 30121(a)(1)(C) (Supp. IV 2017). Yet the law defines an expenditure as being “made by any person for the purpose of influencing any election for Federal office,” 214 Id. § 30101(9)(A)(i) (emphasis added). and it is not clear that simply discussing damaging information about a candidate would necessarily qualify. Furthermore, criminal penalties in this context require “knowing and willful” violations. 215 Id. § 30109(d). Courts could strictly interpret these additional elements even while maintaining a broad construction of “thing of value.” This would mirror the approach taken in other areas of the law involving the same phrase, where “thing of value” is understood broadly but other elements are considered narrowly. 216 See, e.g., United States v. Collins, 56 F.3d 1416, 1419–21 (D.C. Cir. 1995) (holding that “thing of value” in 18 U.S.C. § 641 includes intangibles like computer time but noting that the government failed to establish that “serious interference” with federal ownership rights occurred).

2. Balancing Competing Interests. — Courts might also view potential violations of the foreign national spending ban as residing on a contin­uum that considers when the following two elements are strongest and weakest: (1) the government’s interest “in limiting the participation of foreign citizens in activities of American democratic self-government . . . [to] prevent[ ] foreign influence over the U.S. political process”; 217 Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012). and (2) the First Amendment interests in protecting speech. This approach would reflect Professor Fallon’s “forthright judicial balancing” framework for questions of overbreadth. 218 See Fallon, supra note 87, at 894; see also supra note 99 and accompanying text.

One dimension would consist of the nature of the foreign “speaker.” When the foreign national providing a “thing of value” is a principal or agent of a foreign government, the government’s interest in regulating speech is likely strongest because this is when the concerns regarding foreign influence articulated in Bluman should be greatest. Considering the speaker’s relationship with a foreign government would be in keep­ing with the history and text of the statute, which originated with the 1966 FARA Amendments and continues to define “foreign national” with reference to FARA’s definition of “foreign principal.” 219 See 52 U.S.C. § 30121(b). However, such a consideration would need to consist of a fact-based, case-by-case inquiry for courts, rather than rote application of a statutory definition, since in many countries, entities can be under de facto government control with­out obvious formal relationships or statuses. 220 See, e.g., Jon Jordan, U.S. v. Esquenazi: U.S. Appellate Court Defines “Instrumentality” Under the Foreign Corrupt Practices Act for the First Time, 6 Wm. & Mary Bus. L. Rev. 663, 669–80 (2015) (surveying the challenges and factors to consider in defining “government instrumentality” under the Foreign Corrupt Practices Act).

Another dimension could be the nature of the solicitor of a foreign national contribution and the solicitor’s relationship to a political cam­paign. The compelling interest justifying the foreign national spending ban—“namely, preventing foreign influence over the U.S. govern­ment” 221 Bluman, 800 F. Supp. 2d at 290. —is likely strongest when the solicitor is a member or agent of a campaign and may go on to serve in that government. When the foreign speech is directed at, say, a journalist, rather than a campaign, the fear of foreign influence over government officials and policy may be lessened.

Much remains unknown about Veselnitskaya’s relationship with the Russian government, but given what is known about the June 2016 meet­ing’s timing and the context of the broader Russian influence operation during the 2016 presidential campaign, 222 See generally Indictment, United States v. Butina, No. 1:18-cr-00218-TSC (D.D.C. filed July 17, 2018), 2018 WL 3455963 (alleging a Russian conspiracy to develop relation­ships with and influence Republican-aligned interest groups); Indictment, United States v. Netyksho, No. 1:18-cr-00215-ABJ (D.D.C. filed July 13, 2018),
file/1080281/download [] (alleg­ing a Russian military
intelligence effort to hack and release Democratic Party officials’ emails and campaign information); Indictment, United States v. Internet Research Agency LLC, No. 1:18-cr-00032-DLF (D.D.C. filed Feb. 16, 2018), [] (alleging Russian efforts to spread propaganda to influ­ence the 2016 election via social media); U.S. Office of the Dir. of Nat’l Intelligence, Assessing Russian Activities and Intentions in Recent US Elections (2017), http:// [] (pro­viding the declassified U.S. Intelligence Community assessment of Russian government activities and intentions to influence the 2016 election).
it seems plausible that the June 2016 meeting would fall on the more searching side of the spectrum. Similarly, while Donald Trump, Jr. did not hold an official title with the Trump campaign, he was deeply involved in the campaign’s activities 223 Trump, Jr. was reimbursed for over $30,000 in travel expenses by the Trump presi­dential campaign. See Donald J. Trump for President, Inc., Disbursements to Donald Trump, Jr., 2015–2016, FEC, (on file with the Columbia Law Review) (last visited July 26, 2018). He also headlined fundraisers and served as a campaign surrogate throughout 2016. See, e.g., Joey Garrison, Donald Trump Jr. Visits Franklin for Private Fundraiser, Tennessean (Sept. 2, 2016), [] (describing Trump, Jr.’s participation at a campaign fundraiser in Franklin, Tennessee); Maggie Haberman, Donald Trump’s Son Calls Interview with White Nationalist Inadvertent, N.Y. Times (Mar. 2, 2016),
politics/first-draft/2016/03/02/donald-trumps-son-calls-interview-with-white-nationalist-inadvertent (on file with the Columbia Law Review) (“[Donald Trump, Jr.] has been a top surrogate for his father . . . .”); Patrick Svitek, Donald Trump Jr. Coming to Texas to Raise Money for Father’s Campaign, Tex. Trib. (July 20, 2016),
2016/07/20/trump-jr-raise-money-dad-texas [] (describing Trump, Jr.’s presence headlining campaign fundraisers in Dallas and Houston). Trump, Jr. also reportedly participated in major cam­paign decisions, including the selection of Mike Pence as a running mate, see Stephen Collinson, Trump Pick Shows Power of Family Brain Trust, CNN (July 15, 2016), [], and the decision to fire campaign manager Corey Lewandowski, see Noah Bierman & Mark Z. Barabak, Donald Trump Booted His Campaign Manager to Boost His White House Bid. But It Hasn’t Reassured a Lot of People., L.A. Times (June 20, 2016), [].
Trump, Jr. explained his involvement in the campaign in a prepared statement before the U.S. Senate Judiciary Committee in this manner: “From the moment he announced his candidacy, my siblings and I worked day in and day out to support our father. I had never worked on a campaign before and it was an exhausting, all encompassing, life-changing experience.” Amber Phillips, Donald Trump Jr.’s Testament to His Own Naivete on Russia, Annotated, Wash. Post (Sept. 7, 2017), []. He continued: “Every single day I fielded dozens, if not hundreds, of emails and phone calls . . . . [W]e had a very modest staff and were forced to learn as we went along. Every day presented numerous challenges and required my atten­tion to many different issues.” Id.
and also invited Paul Manafort and Jared Kushner, two senior campaign officials, to participate. 224 See supra note 11 and accompanying text. Thus, with respect to the June 2016 meeting, both factors in this framework weigh in favor of the governmental inter­est at stake.

B. Regulatory Approaches

The FEC should consider clarifying some gray areas that remain in the application of the foreign national spending ban. One such area is the scope of the volunteer services exemption vis-à-vis the spending ban. In recent years, the FEC has found an increasing range of foreign elec­tion-related activities to be covered by the volunteer exemption. 225 Compare FEC, AO 2014-20, supra note 110, at 3 (allowing foreigners to develop website code, logos, and trademarks for a PAC), with FEC, AO 1981-51, supra note 109, at 1–2 (prohibiting a foreign artist from donating an original work of art to a campaign fundraiser). Indeed, the volunteering exemption is a key reason the foreign national spending ban would probably not reach many of the troubling hypothet­icals proposed by Professor Volokh. 226 See supra section II.B.2. Therefore, if the exemption itself were construed too narrowly, it might mean a much broader range of speech is prohibited by the foreign national spending ban, such that the ban could become substantially overbroad.

While there are circumstances that clearly do or do not fall under the umbrella of uncompensated volunteer services, exactly where the line is drawn is uncertain. This difficulty is exemplified by the FEC’s appar­ent inconsistency and somewhat tortured attempts to distinguish its 1982 advisory opinion prohibiting a foreign artist from donating an orig­inal work of art to a campaign fundraiser 227 FEC, AO 1981-51, supra note 109. from later opinions interpret­ing the intersection of the foreign national spending ban and volunteer services exemption, 228 FEC, MURs 5987, 5995 & 6015, supra note 121; FEC, AO 2004-26, supra note 121; FEC, AO 1987-25, supra note 110. before finally giving up and superseding the 1982 opinion in 2015. 229 See FEC, AO 2014-20, supra note 110, at 3 n.5. The 2015 AO was quite broad, holding that foreign volunteers could develop website code and logos for a political action committee (PAC) on an “ad hoc, continuous basis” given that the for­eigners would use their own equipment, pay their own out-of-pocket expenses, would not be compensated by anyone, and would not partici­pate in any of the PAC’s operational decisions. 230 Id. at 2–3 (internal quotation marks omitted) (quoting Letter from the President & Treasurer, Make Your Laws PAC, Inc., to the Comm’rs, FEC 4 (Nov. 22, 2014), http:// []).
The FEC held that because this activity fell within the volunteer exemption, it did not count as a “contribution” and therefore did not run afoul of the foreign national spending ban. 231 Id. at 4. The FEC made this determination even though the PAC would obtain intellectual property rights in the items created by the volunteers, since the PAC would “receive only benefits that result directly and exclusively from the provision of volunteer services by for­eign nationals.” 232 Id.

This determination raises questions about prior FEC opinions, such as its 2007 ruling that a U.S. congressional candidate could not receive printed campaign materials free of charge from Canadian political can­didates. 233 See supra notes 116–119 and accompanying text. If the Canadian campaign is considered the foreign “per­son”—and it presumably paid the costs associated with producing the campaign materials itself—why would the reasoning of the 2015 AO not similarly apply? The answer cannot simply be the distinction between a tangible good (the printed materials) and an intangible service (develop­ing website code), since AO 2014-20 explicitly rejects this reasoning. 234 See FEC, AO 2014-20, supra note 110, at 3 n.5 (“[T]o the extent that [previous FEC opinions] sought to . . . mak[e] a distinction between the provision of volunteer ser­vices by a foreign national and the creation and donation of a tangible good, the Commission does not adopt that reasoning.”). As the FEC’s understanding of the scope of the volunteer exemption has expanded, greater clarity is needed with respect to its interaction with the foreign national spending ban, “particularly in light of the broad scope of the prohibition on contributions from foreign nationals.” 235 FEC, AO 2007-22, supra note 116, at 6.

The relationship between the foreign national spending ban and the media exemption could also use clarification. Because an expenditure is defined in part as “anything of value” made for the purposes of influenc­ing an election, 236 See supra note 164 and accompanying text. information about a candidate provided by a foreign national to a news organization could probably qualify. The news organi­zation itself would likely be protected from any liability based on the media exemption, but it is not clear the same protection would extend to the other party to the transaction, the foreign national. 237 See supra notes 178–191 and accompanying text. The result might well be to “chill[ ] political speech, speech that is central to the meaning and purpose of the First Amendment.” 238 Citizens United v. FEC, 558 U.S. 310, 329 (2010). Just as the FEC enacted the substantial assistance ban as “necessary” to enforcement of the ban on solicitation of foreign contributions, 239 See supra note 68. the agency should also consider a rule clarifying that the provision of information to a media organi­zation is exempt from the foreign national spending ban as “nec­essary” for implementing the media exemption pursuant to its authority under 52 U.S.C. § 30107(a)(8).

C. Legislative Considerations

Congress might also consider legislative changes to achieve its intended goals more effectively than it has done so far through the exist­ing regime. Like the FEC, it could address the potential chilling effect on foreign sources who provide information about political candi­dates to media organizations either by enacting legislation that directly extends the media exemption to the foreign source or through a federal reporters’ privilege statute, which would probably have the same effect. 240 Many states and federal circuits recognize at least some form of “reporters’ privi­lege”—a right to refuse to testify as to the identity of a confidential source. See The Reporters’ Privilege Compendium: An Introduction, Reporters Comm. for Freedom of the Press, [] (last visited July 26, 2018). How­ever, there is no robust federal “shield law” protecting journalists in this manner. Id. Debate over the wisdom and scope of a federal reporters’ shield law remains ongoing and beyond the scope of this Note. See generally Sandra Davidson & David Herrera, Needed: More than a Paper Shield, 20 Wm. & Mary Bill Rts. J. 1277, 1290–96 (2012) (calling for passage of a federal absolute shield law for the press); Paul Brewer, Note, The Fourth Estate and the Quest for a Double Edged Shield: Why a Federal Reporters’ Shield Law Would Violate the First Amendment, 36 U. Mem. L. Rev. 1073, 1075 (2006) (arguing that proposed federal press shield legislation would violate the First Amendment since categor­ical designations of members of the press would be tantamount to unconstitutional press licensing); Ryan C. Stevens, Note, Keeping the News Domestic: Why a Toxic Environment for the American Press and Ready Access to Foreign Media Organizations Like WikiLeaks Compel the Rapid Adoption of a Federal Reporters’ Privilege, 66 Hastings L.J. 1463, 1478 (2015) (arguing that the U.S. Supreme Court should exercise its authority under Federal Rule of Evidence 501 to recognize a reporters’ privilege).

More broadly, however, an oddity arises in applying the foreign national spending ban to situations like the June 2016 meeting involving the provision or solicitation of in-kind contributions such as opposition research. The campaign finance violation could seemingly be avoided by simply paying the “usual and normal charge” for any goods or services received. The FEC itself suggests this work-around in the 2007 AO dis­cussed above, which disallowed a congressional candidate from receiving printed materials used in a Canadian election free of charge but explained that the candidate could legally use campaign or personal funds to purchase the materials instead. 241 See FEC, AO 2007-22, supra note 116, at 6 (explaining that while receiving cam­paign materials free of charge is prohibited, the candidate may “expend campaign funds to purchase such materials because such use of campaign funds would be an otherwise authorized expenditure in connection with [the candidate’s] campaign . . . [and, in addi­tion, the candidate] may also use personal funds”). If personal funds were used, they would then constitute a legal, in-kind contribution to the campaign. 242 Id.

This result is mostly unobjectionable in the innocuous context of a congressional candidate wanting to learn from Canadian counterparts, but more difficult to countenance in the context of something like the June 2016 meeting. Can it really be that Trump, Jr. could have avoided liability by offering to pay the usual and normal charge for whatever infor­mation Veselnitskaya had to offer? The answer, seemingly, is yes, at least as it pertains to this particular question of campaign finance law, since the information would no longer be considered a contribution. 243 Even if the specific June 2016 meeting did not qualify as a solicitation of a “thing of value,” some experts have argued that the meeting could support a theory of liability based on aiding and abetting, or providing “substantial assistance” to, the broader Russian influence operation, which included potential violations of the for­eign national spending ban, such as the purchase of election-related social media adver­tisements. See, e.g., Bob Bauer, Donald Trump Jr.’s Messages with WikiLeaks Point to Campaign-Finance Violations, Atlantic (Nov. 16, 2017), [https://]; Bob Bauer, Open Door to Moscow? New Facts in the Potential Criminal Case of Trump Campaign Coordination with Russia, Just Security (July 10, 2017), []; see also Mike Isaac & Scott Shane, Facebook’s Russia-Linked Ads Came in Many Disguises, N.Y. Times (Oct. 2, 2017), (on file with the Columbia Law Review) (describing Russian-bought social media advertisements in the 2016 election); Georgia Wells & Deepa Seetharaman, New Facebook Data Shows Russians Targeted Users by Race, Religion, Politics, Wall St. J. (Nov. 1, 2017), http:// (on file with the Columbia Law Review) (describing how Russian-bought social media adver­tisements targeted groups, often on opposite sides of hot-button issues, to amplify social divisions).
Yet this appears to be at odds with the government interest furthered by the foreign national spending ban and recognized in Bluman—“pre­venting foreign influence over the U.S. government.” 244 Bluman v. FEC, 800 F. Supp. 2d 281, 290 (D.D.C. 2011), aff’d mem., 565 U.S. 1104 (2012). It defies common sense to think that whatever influence might be gained by providing such information is diminished by the campaign paying for it, even setting aside the practical challenges inherent in identifying the market value of discrete pieces of opposition research to determine whether a campaign finance violation occurred.

A law prohibiting all contacts between foreigners—or even just rep­resentatives of foreign governments—and campaigns would pose sub­stantial First Amendment problems and would likely be bad policy. 245 See Daniel P. Tokaji, What Trump Jr. Did Was Bad, but It Probably Didn’t Violate Federal Campaign Finance Law, Just Security (July 14, 2017), [] (“[I]t would seriously restrict the flow of political information if campaigns were prohibited even from speaking [to] foreign nationals in pursuit of information about their opponents . . . . Denying can­didates the opportunity to interview foreign nationals would thus be detrimental to th[is] central First Amendment interest . . . .”). However, the distastefulness of the June 2016 meeting seems to stem in part from its clandestine nature and the evasive explanations provided by members of the Trump campaign when it was publicly revealed over a year later. 246 See supra notes 13–14 and accompanying text. Perhaps, then, Congress might consider enacting a robust disclosure regime for foreign contacts during a campaign. This sort of disclosure is already required for federal officials seeking a security clear­ance; 247 See U.S. Office of Pers. Mgmt., Standard Form 86: Questionnaire for National Security Positions 59–83 (2010), []. it could be extended to federal campaigns and incorporated into the campaign finance reporting already required to be submitted to the FEC, so that campaigns would be forced to publicly acknowledge for­eign contacts in not-quite-real time. 248 Professor Anthony Gaughan suggests a forty-eight-hour reporting requirement for contacts with foreign governments. See Anthony J. Gaughan, Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law, 27 S. Cal. Interdisc. L.J. 79, 126–27 (2017). Such a proposal is far from a per­fect solution given the challenges involved in ensuring compliance and the reality that the possibility of inappropriate discussions or exchanges would remain. However, the increased public and media scrutiny on such contacts that might result from disclosure may help deter undesirable con­tacts and further the governmental interest in reducing foreign influ­ence.


Although the fear of foreign influence in American elections is as old as the U.S. constitutional system itself, it has received renewed attention following the events of the 2016 election. Much of the current lan­guage in campaign finance law that addresses this issue dates back to the 1970s but has not historically received significant attention. Most of the legis­lative debate around these provisions has centered on the definition of “foreign national”—particularly, whether the definition should include legal permanent residents, or whether it would inadvertently chill or pro­hibit the speech of American citizens living abroad or employed by for­eign-owned corporations. Relatively little attention has been given to the potential scope of speech that could be considered a prohibited contri­bution or expenditure when such terms encompass “anything of value.” In the age of social media, as the lines demarcating traditional categories like “media” and “nonmedia” continue to blur and campaigns increas­ingly revolve around viral posts rather than expensive broadcast advertise­ments, these questions will become only more urgent.