FEDERAL ELECTION COMMISSION

Washington, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matters of )

)

)

Stop I-186 to Protect Mining and Jobs ) MUR 7523

et al. )

)

and )

)

Pembina Pipeline Corporation, et al. ) MUR 7512

)

)

STATEMENT OF REASONS OF CHAIR SHANA M. BROUSSARD 

For over three decades, Commission precedents and guidance treated spending on efforts 

to influence state and local ballot initiatives as generally outside of the agency’s regulatory 

authority.

1

 This treatment flowed from the fundamental distinction campaign finance laws have

long made between efforts to influence candidate elections, which are subject to regulation, and 

issue advocacy, which generally is not. In these matters, the Office of General Counsel (“OGC”)

recommended that the Commission depart from this well-settled distinction and conclude that the

foreign national ban encompasses ballot initiatives.

2 On July 13, 2021, three of my colleagues

and I voted to support OGC’s recommendation to dismiss these matters, but we declined to adopt

OGC’s new interpretation of the foreign national prohibition.

3

 Our reasons for doing so are 

provided in the Commission’s Factual and Legal Analyses.

4

I write here to elaborate on the 

regulatory and legislative events that informed my decision. 

The Federal Election Campaign Act of 1971, as amended (the “Act”), prohibits any 

“foreign national” from making a contribution, donation of money, or other thing of value “in 

1 See Advisory Op. 1989-32 (McCarthy) (“AO 1989-32”); AO 1984-62 (B.A.D. Campaigns) at 1 n.2 (“The 

Commission has previously held that contributions or expenditures exclusively to influence ballot referenda issues 

are not subject to the Act”); AO 1984-41 (National Conservative Foundation) at 1-2; AO 1982-10 (Syntex) at 2-3; 

see also FOREIGN NATIONALS, FEC (June 23, 2017), https://www.fec.gov/updates/foreign-nationals/ (“[F]oreign 

nationals may lawfully engage in political activity that is not connected with any election to political office at the 

federal, state, or local levels.” (emphasis added)).

2 See First Gen. Counsel’s Rpt. at 2, 5, 12, MUR 7523 (Stop I-186); First Gen. Counsel’s Rpt. at 35-36, 40-

41, 43, MUR 7512 (Pembina Pipeline Corporation)

3 Certification ¶ 2, MUR 7523 (Stop I-186) (July 13, 2021); Certification ¶ 2, MUR 7512 (Pembina Pipeline 

Corporation) (July 13, 2021).

4 See Factual & Legal Analysis, MUR 7523 (Stop I-186); Factual & Legal Analysis, MUR 7512 (Pembina 

Pipeline Corporation).

MUR751200492
MUR 7523 (Stop I-186 to Protect Mining and Jobs, et al.) and

MUR 7512 (Pembina Pipeline Corporation, et al.)

Statement of Reasons

Page 2 of 4

connection with a federal, state, or local election.”

5 This provision reflects amendments 

Congress made to the Act with the Bipartisan Campaign Reform Act of 2002 (“BCRA”).6 Prior 

to 2002, the Act prohibited foreign national contributions “in connection with an election to any 

political office.”7 Construing this predecessor statute, the Commission explained in Advisory 

Op. 1989-32 (McCarthy) that foreign national donations made in connection with ballot 

initiatives are not subject to the Act because such initiatives are not in connection with elections 

for political office.

8 But according to the First General Counsel’s Reports, BCRA’s changes to 

the Act, which removed, among other things, references to “political office,” indicate that 

Congress intended to expand the prohibition beyond candidate-focused elections to include noncandidate elections such as ballot initiatives.9

 An examination of the relevant events leading up

to and surrounding BCRA’s enactment reveals that Congress amended the Act with a specific 

purpose that had nothing to do with ballot initiatives. 

Since 1976, the Commission consistently applied the foreign national ban to federal, 

state, and local elections.

10 Following the 1996 elections, a federal district court issued two 

decisions holding that the foreign national ban applied only to “hard money” contributions for 

use in financing federal election campaigns.

11 The Act’s ban, the court reasoned, defined

“contributions” in terms of “federal elections” and did not include “soft money” contributions 

used by state and local campaigns.

12

 The D.C. Circuit rejected the district court’s interpretation

and agreed with the Commission,

13 but the court noted that “the ban can hardly be read as 

making [the Commission’s] case conclusively.”14 Because of these court decisions, the 

Commission, in its 2000 and 2001 Legislative Recommendations, recommended that Congress 

clarify that the foreign national prohibition applied to federal, state, and local elections.15 

Consistent with the Commission’s Legislative Recommendations and in light of these court 

5 52 U.S.C. § 30121(a)(1); 11 C.F.R. § 110.20(b), (c), (e), (f). 

6 Pub. L. No. 107-155, 116 Stat. 81 (2002).

7 See 2 U.S.C. § 441e(a) (2000). 

8 See AO 1989-32. The Commission explained that a foreign national would not be permitted to make 

donations to a ballot initiative that was inextricably linked to a candidate. See id. at 3-6.

9 See First Gen. Counsel’s Rpt. at 2, 5, 12, MUR 7523; First Gen. Counsel’s Rpt. at 35-36, 39, 43, MUR 

7512.

10 Establishment of Chapter, 41 Fed. Reg. 35,931, 35,959 (Aug. 25, 1976).

11 See United States v. Trie, 23 F. Supp. 2d 55, 59-60 (D.D.C. 1998); United States v. Kanchanalak, 41 F. 

Supp. 2d 1, 7 (D.D.C. 1999).

12 See Trie, 23 F. Supp. 2d at 59-60.

13 See United States v. Kanchanalak, 192 F.3d 1037, 1047-50 (D.C. Cir. 1999). 

14 Id. at 1049.

15 FEC Legislative Recommendations at 44-45 (2000), https://www.fec.gov/resources/cmscontent/documents/legrec2000.pdf (“While the Commission continues to believe that the statute permits, and the 

legislative history supports, application of section 441e to nonfederal elections, statutory clarification of this point 

would be useful.”); FEC Legislative Recommendations at 8 (2001), https://www.fec.gov/resources/cmscontent/documents/legrec2001.pdf; see also Contribution Limitations and Prohibitions, 67 Fed. Reg. 69928, 69944 

(Nov. 19, 2002) (“2002 E&J”) (“In 1999, 2000, and 2001 the Commission included in its legislative 

recommendations to Congress a proposal that [the Act] be amended to clarify that the statutory prohibition on 

foreign national contributions extends to State and local elections.”).

MUR751200493
MUR 7523 (Stop I-186 to Protect Mining and Jobs, et al.) and 

MUR 7512 (Pembina Pipeline Corporation, et al.) 

Statement of Reasons 

Page 3 of 4 

cases, Congress amended the Act through BCRA to settle any doubt about whether the Act 

applied to state or local elections.16 

Not only are there no indicia of congressional intent in BCRA to include ballot initiatives 

in the foreign national prohibition, but it also appears that Congress deliberately chose not to do 

so. On at least three occasions prior to BCRA, bills were introduced in Congress to amend the 

Act to clarify that it “prohibits contributions by foreign nationals in elections for Federal, State, 

and local offices, and to provide for an additional prohibition on contributions by foreign 

nationals in initiative, referendum, and recall elections.”

17 Neither of these specific bills made it 

out of committee. And when Congress later amended the Act in BCRA to clarify that the 

foreign national ban applied to nonfederal elections, it did not include ballot initiatives. That 

Congress included the former but not the latter in BCRA after both were previously introduced 

together and in multiple bills strongly suggests that it did not intend to alter the Commission’s 

longstanding treatment of ballot initiatives vis-à-vis the Act’s foreign national prohibition.18 

In conclusion, I remain strongly committed to enforcing the foreign national prohibition 

to protect our democratic processes. But there are limits to the Commission’s authority to 

regulate in this space. When the federal government regulates in areas involving traditional state 

authority, it must be especially mindful of the scope of its statutory authority and also sensitive 

to the unique balance of power between the federal government and the states.19 The foreign 

national prohibition already operates as a general exception to the Commission’s regulatory 

authority because, unlike other provisions of the Act, which generally regulate federal campaign 

finance, the prohibition touches state and local campaign finance activities. To expand it further 

to encompass state and local ballot initiatives requires evidence of clear congressional intent.20 

16 See 147 Cong. Rec. S2773-74 (daily ed. Mar. 22, 2001) (statement of Sen. Thompson) (noting the 

Commission “asked for clarification regarding the legality of foreign soft money” after court decisions in the wake 

of the 1996 election and explaining that the bill seeks “to clarify current provisions of law regarding donations from 

foreign nationals”); 148 Cong. Rec. S1991-94 (daily ed. Mar. 18, 2002) (statement of Sen. Feingold); 147 Cong. 

Rec. S2421-23 (daily ed. Mar. 19, 2001) (statement of Sen. Specter); see also 2002 E&J, 67 Fed. Reg. at 69,944.

17 H.R. 1628, 103d Cong. (1993) (emphasis added); see also H.R. 3592, 102nd Cong. (1991); H.R. 1540, 

101st Cong. (1989).

18 See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137(1985) (finding legislative 

acquiescence in “a refusal by Congress to overrule an agency’s construction of legislation” where “the 

administrative construction has been brought to Congress’ attention through legislation specifically designed to 

supplant it”); Jackson v. Modly, 949 F.3d 763, 773 (D.C. Cir. 2020) (finding legislative acquiescence where 

Congress has amended several parts of Title VII over the years, including the specific provision at issue, but did not 

seek to override judicial interpretation of statute). In the soft money context, the Commission, in its 2004 

Legislative Recommendations, asked Congress to “clarify the circumstances in which recall elections, referenda and 

initiatives, recounts, redistricting, legal defense funds, and related activities fall within the scope of activities that are 

“in connection with a Federal election” and thus subject to the §441i(e)(1) [now § 30125(e)(1)] restrictions.” FEC 

Legislative Recommendations at 13 (2004), https://www.fec.gov/resources/cmscontent/documents/legrec2004.pdf#441ie. Congress declined to act on this recommendation. 

19 See Bond v. United States, 572 U.S. 844, 857-58 (2014); BFP v. Resolution Trust Corp., 511 U.S. 531, 544 

(1994).

20 See Rapanos v. United States, 547 U.S. 715, 738 (2006) (requiring clear congressional intent where agency 

action would result in an expansion of federal regulation into activities involving traditional state authority).

MUR751200494
MUR 7523 (Stop I-186 to Protect Mining and Jobs, et al.) and

MUR 7512 (Pembina Pipeline Corporation, et al.)

Statement of Reasons

Page 4 of 4

Until Congress expands the Act’s foreign national prohibition to encompass state and local ballot 

activities, which I urge it to do,

21 the Commission is bound by the law as it currently stands.22

____________________ ____________________________

Date Shana M. Broussard 

Chair

21 I am encouraged by recent bills introduced in Congress that would expand the foreign national prohibition 

to include ballot initiatives. See, e.g., S. 443, 117th Cong. (2021); H.R. 1334, 117th Cong. (2021); H.R. 1516, 117th 

Cong. (2021). In addition, at least seven states have enacted statutes prohibiting foreign nationals from spending to 

influence the outcome of ballot measures. See Cal. Gov't Code § 85320; Colo. Rev. Stat. § 1-45-107.5; Md. Code, 

Election Law § 13-236.1; Nev. Rev. Stat. § 294A.325; N.D. Cent. Code § 16.1-08.1-03.15; S.D. Codified Laws § 

12-27-2; Wash. Rev Code § 42.17A.417.

22 Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214 (1976) (explaining that the agency’s power is “not the 

power to make law” but the “power to carry into effect the will of Congress as expressed by the statute” (quoting 

Dixon v. United States, 381 U.S. 68, 74 (1965)).

11/2/2021

MUR751200495