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There is currently a number of claims being made, on cable tv, stating that information can be considered an in-kind contribution to a political campaign because it benefits the campaign and because some information, which is not in the public domain, is often exchanged for payments by other political campaigns.

However, this view seems to make it impossible to share information with a political campaign without being compensated for it. If the value of such information exceeds the allowed contribution limit, then this would be a direct restriction on free political speech.

So is there a legal standard which distinguishes between "a thing of value" and "a thing of benefit" to a political campaign as far as what is considered an in-kind contribution?

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11 CFR 110.20(b) says that

A foreign national shall not, directly or indirectly, make a contribution or a donation of money or other thing of value, or expressly or impliedly promise to make a contribution or a donation, in connection with any Federal, State, or local election.

In connection with this, the Federal Election Commission has expressed an opinion in this letter of 3 Dec. 2007 bearing on this topic

the Act and Commission regulations also provide that 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.” 2 U.S.C. 431(8)(B)(i); see also 11 CFR 100.74.

By contrast, if a foreign volunteer supplies "stuff" (a donut), that is a thing of value, as legally defined. This despite the fact that 100 hours of labor usually costs more than a donut. In another letter, 3 Aug. 1990 the FEC opined that paid information is a thing of value:

If, however, Mr. Hochberg imparts poll result information to you or anyone else working for your campaign, including any data or any analysis of the results, or if he uses the poll information to advise your campaign on matters such as campaign strategy or creating media messages, such poll information will constitute an in-kind contribution from Mr. Hochberg to your campaign, and an expenditure in an equal amount by your committee. 11 CFR 106.4(b)

The information to be provided was not just "something somebody knew", it was the paid results of a prior poll (by another candidate). The restriction only applies to information that was paid for.

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  • then i am still confused somewhat. what is the distinction between information that is paid for and expert information (for the sake of an example, let's say computer expertise) acquired as a result of paying for a series of classes? is paid-for information something which you paid-for, but do not yourself know? does it have be sealed? if someone reads and commits poll data to memory, would that be expertise which they can share? – grovkin Sep 28 '19 at 20:43
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    The line seems to lie between commissioning a poll for money (and contributing that information), versus having gained some general knowledge (at a cost) and then contributing the product of that knowledge. Hochberg presumably knew the results of his poll, so donor ignorance isn't part of the concept "thing of value". – user6726 Sep 28 '19 at 21:51
  • I understand the factual difference. But I am still having trouble conceptualizing where the line is. Is it that Hochberg had no other use for this information? So someone who would have alternative use for information in the poll can share it as part of their expertise? Alternatively, what if they use an intermediary? A commissions a poll, learns its results, teaches them to B and B informs the campaign that there is a poll out there which has these results. Would A, B or the campaign not be in compliance? B didn't commission it, nor does B work for the campaign. – grovkin Sep 28 '19 at 23:51
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If information would not typically be sold for a significant sum, it is not a "thing of value", that would need to be reported as a campaign contribution.

I don't believe that "thing of benefit" is a legal concept in the area of campaign finance law. In practice, only bulk information, such as the emails or phone numbers or addresses of thousands or tens of thousands of people would be treated as having significant value.

Items of "minimal" value need not be reported. When I was a local political candidate, some years ago, I purchased voter info from the state at, if I recall correctly, 5 cents a name, and contributions of less than $5 were not considered reportable. That would be info on 100 people.

Note that under 2 U.S.C. 431(8)(B)(i) "the value of services provided without compensation" is not considered a contribution to the campaign.

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  • Would conducting a criminal background check (of an opposing campaign) be considered "a thing of value" if its done by a law enforcement officer who conducts such checks on daily basis? It's certainly a thing of benefit to a campaign. But can a law enforcement officer conduct such a check on his own time using his own expertise without using any government facilities to do it? Would that be a thing of value to a campaign? – grovkin Sep 28 '19 at 20:49
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    @grovkin That would probably be a "donated service" which as 2 U.S.C. 431(8)(B)(i) (quoted in he answer by user6726) says, is not consider to be a contribution. If a PI in the business of doing such checks for payment did it for a campaign, that might or might not be considered a contribution, it seems – David Siegel Sep 28 '19 at 22:13
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Yes, there is a difference.

The federal election commission says that a foreign national may not make campaign donations, but permits volunteer work by a foreign national. There are some limits related to managing a campaign or campaign finances. See https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/volunteer-activity/

I believe that one FEC ruling said that donation of intellectual property is not considered something of value for campaign finance law purposes. Seems like providing information is intellectual property, but taking out paid advertising is a donation.

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