FEDERAL ELECTION COMMISSION

Washington, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

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

Sandfire Resources America, Inc. ) 

Sandfire Resources, NL ) 

Montana Mining Association ) 

STATEMENT OF REASONS OF

COMMISSIONER ELLEN L. WEINTRAUB

A cornerstone principle of federal campaign-finance law is that foreign nationals are 

barred from directly or indirectly making a contribution or donation of money or other thing of 

value, or an expenditure, in connection with a federal, state, or local election.1

 This principle has 

been called “fundamental to the definition of our national political community”: “that foreign 

citizens do not have a constitutional right to participate in, and thus may be excluded from, 

activities of democratic self-government.”2

Since Buckley v. Valeo,3

 the constitutionality of campaign-finance laws directed at the 

activities of American citizens has depended on how well they serve the government’s interest in 

limiting “the actuality and appearance of corruption.”4 But restrictions on foreign-national 

involvement in American politics serve a different governmental interest: “preventing foreign 

influence over the U.S. political process.”5

In the Bipartisan Campaign Reform Act of 2002 (“BCRA”),6 Congress amended the 

Federal Election Campaign Act of 1971, as amended (the “Act”)7 to change its ban on 

contributions or donations from foreign nationals “in connection with an election to any political 

office,” to any such spending “in connection with a Federal, State, or local election.” The 

1

 52 U.S.C. § 30121(A).

2

 Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104 (2012).

3

 424 U.S. 1 (1976).

4

 Id. at 26.

5

 Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 288 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012).

6

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

7

 52 U.S.C. § 30101, et. seq.

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MUR 7523 (Stop I-186, et al.) 

Statement of Reasons of Commissioner Ellen L. Weintraub

Page 2 of 4 

question that had remained unsettled was whether by this statutory change Congress had 

expanded the provision to include spending on state and local ballot measures.

I have long held that Congress did do so. “From the voter’s perspective,” I wrote in 2015, 

“this is a distinction without a difference. When Americans go to the polls to vote on Election 

Day (or mark our mail-in ballots), the choices we make – whether as to candidates or referenda – 

are part of the same expression of democratic self-governance. Whether exercising our rights to 

self-government through representative democracy (choosing a candidate for office) or direct 

democracy (adopting a law via ballot measure), these are choices in which only Americans 

[should] have a say.”8

 This matter, which involved foreign spending against an environmental measure in 

Montana, provides an excellent case in point. The Complaint alleged that Sandfire Resources 

NL, an Australian company, through its Canadian subsidiary (Sandfire Resources America, Inc., 

which then had “no sources of revenue in the United States, and a cash flow of zero,”9

 but had an 

interest in a potential mining project), donated $287,857 to the Montana Mining Association 

(“MMA”) and Stop I-186 to Protect Mining and Jobs (“Stop I-186”). The purpose of these

donations, according to the Complaint, was to oppose “a Montana ballot initiative that the 

Complaint states would ‘increase [Montana’s] ability to deny permits for hardrock mines . . . to 

avoid polluting the state’s waters.’”10 As noted by the Office of General Counsel, “Respondents 

do not dispute the facts alleged in the Complaint.”11 

So a company based halfway around the world made a sizable donation, interjecting itself 

in hopes of future profits, into a political debate in Montana over mining and the quality of 

Montana’s waters. Balancing the economic and environmental concerns reflected in the ballot 

measure and uniquely affecting the State’s residents is precisely the type of exercise of 

democratic self-government that should be protected from foreign influence. Nor did Sandfire 

have any First Amendment right to participate in this process: the Supreme Court has plainly 

held that “foreign citizens outside U.S. territory do not possess rights under the U.S. 

Constitution.”12

In this matter, I concurred with the analysis of the Commission’s Office of General 

Counsel that the best read of the state of the law was that “the only Commission-approved 

interpretation of the meaning of the Act’s post-BCRA foreign national prohibition’s use of 

8

 Ellen L. Weintraub, Statement of Reasons at 3, MUR 6678 (MindGeek USA, Inc., et al.) (Apr. 23, 2015).

9

 Complaint, paragraph 12.

10 First General Counsel’s Report, MUR 7523 (Stop I-186 to Protect Mining and Jobs, et al.) (“FGCR”) at 1-

2, quoting Compl. at 2.

11 Id.

12 Agency for International Development v. Alliance for Open Society International, Inc., — U.S. —, 

140 S. Ct. 2082 (2020).

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Statement of Reasons of Commissioner Ellen L. Weintraub

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“election” with respect to non-candidate elections” specifically explained “that its application is 

not limited to ‘elections for political office.’”13

As of today, though, the Commission has reversed course, deciding that under the Act, 

the term “election” does not encompass state and local ballot issues. For the first time, the 

Commission has voted to allow political donations by foreign nationals to a domestic ballot 

initiative committee. 

Under the circumstances presented by this matter – where the ballot initiative at issue did 

not have anything to do with a candidate election, and no other evidence suggested that the 

initiative effort was inextricably linked to a candidate election – my colleagues voted against 

investigating the allegations presented by the complaint. 

This decision, however, should not be read as open season on foreign spending in 

connection with ballot measures. There have been, and will be again, ballot measures that are 

inextricably linked to candidate elections.14 Moreover, this decision does not preclude other 

paths by which a ballot initiative could fall within the scope of the Act’s wide ban on foreignnational spending in connection with a federal, state, or local election. Consider a ballot initiative 

that directly affects the election process. While a ballot initiative may not per se fit within the 

Act’s definition of “election,” when the topic of an initiative is federal, state, or local elections – 

for example, provisions regarding redistricting, recall elections, voter registration, vote-by-mail 

eligibility, election systems, early voting, drop boxes, etc. – then spending relating to such an 

initiative appears to remain very much in connection with an election, and foreign nationals 

would therefore banned from such spending.15 

But ballot initiatives cover plenty of other types of topics. And spending on ballotinitiative campaigns that have nothing on their face to do with candidate elections can still have 

the intent of affecting candidate elections. That intent could cause that spending to be ‘in 

connection with’ those elections, but that link would likely be quite difficult to prove. It was not 

13 FGCR at 7, citing Advisory Op. 2003-37 (Americans for a Better Country) at 20 (superseded on other 

grounds by Political Committee Status & Definition of Contribution, 69 Fed. Reg. 68056, 68063 (Nov. 23, 2004)) 

(“The Act, as amended by BCRA, prohibits foreign nationals from, among other things, directly or indirectly 

making a contribution or donation of money or other thing of value, or to expressly or impliedly promise to make a 

contribution or donation, in connection with a Federal, State, or local election (this prohibition is not limited to 

elections for political office”) (emphasis added).

14 See Advisory Op. 1989-32 at 3-6 (McCarthy) (“AO 1989-32”) (detailing ways in which a candidate and a 

ballot initiative committee seeking to accept foreign national funds were “inextricably linked,” including through 

overlapping staff between candidate and ballot initiative committee, linking the name of the candidate and 

committee in public communications, the candidate soliciting for the committee, and appearance of candidate and 

initiative on same ballot, concluding that because of these links the activities of the ballot initiative committee were 

campaign-related and thus the foreign national prohibition applied to the ballot initiative committee).

15 See “2020 ballot measures,” Ballotpedia.org (“Eighteen measures were on the ballot in 14 states concerning 

election policy, including campaign finance, election dates, election systems, redistricting, suffrage, and term 

limits”), found at https://ballotpedia.org/2020_ballot_measures. 

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likely a surprise to conservative organizers in the early 2000s that the ballot initiatives they 

sponsored opposing marriage equality also boosted turnout for Republican state and federal 

candidates on Election Day,16 but proving that that was their intent might have been challenging. 

And that is why Congress and the states should act quickly and decisively to protect all

ballot initiatives from foreign influence. Ballot initiatives can reach deeply into the laws of a 

state or locality and directly rewrite both statutes and constitutions. They are vulnerable to 

manipulation, as they skip the legislative gauntlet – and the checks and balances integral to that 

process – that ordinary legislation must run. They are deserving of no less protection from 

foreign influence than are our candidate elections. 

 

October 29, 2021 Ellen L. Weintraub

Commissioner

16 See, e.g., James Dao, “Same-Sex Marriage Issue Key to Some G.O.P. Races,” N.Y. Times (Nov. 4, 2004) 

(“Proposed state constitutional amendments banning same-sex marriage increased the turnout of socially 

conservative voters in many of the 11 states where the measures appeared on the ballot on Tuesday, political 

analysts say, providing crucial assistance to Republican candidates including President Bush in Ohio and Senator 

Jim Bunning in Kentucky.”)

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