National Review: Our Nebulous Campaign-Finance Laws
By Rich Lowry
Our friend and former FEC chairman Bradley Smith has a good piece highlighting a central ambiguity in the Trump case: …
It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries – such as expensive watches, massages and Brooks Brothers suits – seems more like bribery than funding campaign speech.
That’s why another part of the statute defines “personal use” as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.
Suppose, for example, that Trump had told his lawyers, “Look, these complaints about Trump University have no merit, but they embarrass me as a candidate. Get them settled.” Are the settlements thus “campaign expenses”? The obvious answer is no, even though the payments were intended to benefit Trump as a candidate.
If the opposite were true and they were considered campaign expenses, then not only could Trump pay them with campaign funds, but also he would be required to pay these business expenses from campaign funds. Is that what campaign donations are for?