By Kathryn Blackhurst
Former FEC Chairman Brad Smith pointed to specific requirements of what campaign regulation refers to as “express advocacy” as likely not met by the Bloom effort.
“An independent expenditure has to include express advocacy, per statute. So if the accusers specifically said something like ‘I hope that voters will reject Trump’ that might do it. But it might still be hard to show that that is what the payment was for,” said Smith, who is chairman and founder of the Institute for Free Speech.
“The payment, they would argue, was just to go public with their stories, not to specifically oppose the election of Trump. That was a voluntary comment by the speaker, on her own. No money spent, no violation,” he said.
Smith cautioned, however, that “you wouldn’t need express advocacy to violate the ‘electioneering communication’ rule, but that would require using the statements in paid tv/radio ads of at least $10,000, which I gather is clearly inapplicable here. If coordinated with the campaign, payments would be a contribution to the campaign.”