Can the US Government demand money in exchange for CFIUS approval?

Question

President Trump said this to reporters today, regarding his phone call with the CEO of Microsoft about Microsoft’s interest in buying Chinese social media company TikTok:

I did say that if you buy it, whatever the price is that goes to whoever owns it, because I guess it’s China essentially but more than anything else, I said a very substantial portion of that price is going to have to come into the Treasury of the United States, because we’re making it possible for this deal to happen. Right now they don’t have any rights unless we give it to them, so if we’re going to give them the rights, then it has to come into this country. It’s a little bit like the landlord-tenant - without a lease the tenant has nothing, so they pay what’s called “key money” or they pay something. But the United States should be reimbursed or should be paid a substantial amount of money.

This is a reference to the fact that in order for Microsoft to purchase TikTok, the deal would have to be approved by CFIUS, an interagency panel in the US Government that reviews foreign investment.

My question is, does the US Government have the authority to withhold CFIUS approval from a deal unless the purchaser makes a payment to the US Treasury? Is that kind of quid-pro-quo allowed, and has it been part of any past CFIUS decisions?

Answer 1

There's two parts to answering this question.

The filing fee is a set value, as laid out in the chart on their official page. Given the valuation of Tik Tok is well in excess of $750,000,000, the filing fee would be a flat $300,000.

However, this only is the requirement to get CFIUS to look at the transaction in the first place, which is a requirement of closing the deal. Paying CFIUS to get it approved is a different story.

As far as I can tell, the law establishing CFIUS doesn't have any provisions for charging any additional fees for approval. As far as I can tell (and I am most definitely not a lawyer), any additional payment would be outside the law and thus presumably considered a bribe and thus illegal.

This page (which is written by lawyers) also only discusses the filing fee, and specifically mentions that CFIUS is able to raise the fee by re-valuing the transaction, which still leaves the cap at $300,000, so that's not applicable here. There's no other mention of payment.

There's always lobbying politicians as another way to "pay for approval", but that doesn't go into the Treasury and is questionably legal. (Not to mention, likely much slower.)

Thus, there seems to be no legal way to pay CFIUS a "substantial amount of money" for an approval, or even for them to ask for it. _{Not that it isn't a substantial amount to the average person, but if you're buying a $50,000,000,000 company, $300,000 is a rounding error.}