By Bradley Smith
The first relevant statute is 18 U.S.C. 201, which prohibits any person from “corruptly” offering “anything of value to any public official . . . with intent to influence any official act.” The organizers and donors here clearly want to influence an official act – Collins’s vote on Kavanaugh. But are they doing so “corruptly”?
Others have suggested the statute doesn’t apply because the funders are not offering anything to Collins – they’ll be giving it to someone else. Is it a “thing of value” to not give money to a candidate’s opponent?
I think the answer to each of these questions is a clear “no.” Few would consider it an illegal bribe, for example, if an advocacy group threatened to turn out 100,000 opposition voters unless the officeholder went the right way on a crucial issue. But could an ambitious U.S. attorney get an indictment or a plea bargain on the theory that this is a corrupt offer of “anything of value”? I’m guessing probably yes. Whether a jury would convict is another question.
These uncertainties illustrate the dangerous complexity of our public corruption and campaign-finance laws. Americans should not have to consult a lawyer before engaging in political advocacy but, too often, they do, and even then, the answers are not always clear…
Then there is the Maine People’s Alliance, which is also an incorporated entity. Thanks to the Supreme Court’s Citizens United v. Federal Election Commission decision, the group can spend money urging votes for or against a candidate. But it is still prohibited by law from using its corporate resources to raise funds for a candidate’s campaign, meaning the Alliance may have run afoul of the law. It wants to overturn Citizens United but, perhaps, it should be calling to expand it.
Washington Post: Is attempting to sway Susan Collins’s vote breaking the law? It’s hard to tell. (In the News)
By Bradley Smith
Washington Examiner: The New York Times wants anonymity for the powerful, but no privacy for you (In the News)
By Bradley A. Smith
The president’s anger at a disloyal staffer who is vowing to frustrate his policies is understandable, and if his identity is learned, firing is an appropriate response. But the New York Times piece is not “treason,” it is not a national security issue to find this person, and the president should not be haranguing the New York Times about disclosing this author or others. It’s that pesky First Amendment thing…
No one thinks for a moment that the New York Times is going to “turn over” its anonymous diarist “to government.” But the Times is protecting its author because his or her “job would be jeopardized by its disclosure.” And the Times thought it important to publish these anonymous thoughts because it “believe[s] publishing this essay anonymously is the only way to deliver an important perspective to our readers.”
Yet the New York Times has been a big supporter of ever more disclosure of the identities of persons who finance public debate. It has supported the so-closed “DISCLOSE Act” and regularly rails against “dark money.”
Does it not occur to the Times that perhaps its anonymous writer ought also be able to contribute to candidates or organizations critical of President Trump without “jeopardizing” the anonymous writer’s job? How about other people in similar situations? What about a Trump critic who happens to work for the Trump Organization? What about a corporate officer of a company with long-standing government contracts, or one that hopes to bid fairly in the future?
Many people who will never be granted a platform as large as a New York Times op-ed face possible retaliation for their views, whether from government officials, employers, or the online mob. Yet the Times supports a crackdown on the decidedly less influential means of speaking that are available to them – contributions to like-minded candidates and causes.
New York Daily News: Legal scrutiny of the National Enquirer risks free speech rights: Do we want the government second-guessing decisions to publish or not to publish? (In the News)
By Bradley A. Smith
Prosecutors argue that the publication’s hush money payments were illegal campaign expenditures because they were paid in order to help Trump’s campaign. (I and others have argued that such payments are “personal use” under the statute and not campaign expenditures.)
Since Pecker was granted immunity, it has been widely speculated that he and the Enquirer would otherwise have faced prosecution for campaign finance violations. The interesting wrinkle is that campaign finance laws typically don’t apply to the media. A statutory “press exemption” shields media outlets from these laws, including disclosure and reporting requirements. Before the Supreme Court affirmed the First Amendment right of corporations and unions to speak about and spend money on elections in Citizens United, the press exemption is what allowed newspapers – virtually all of which are owned by incorporated entities – to make endorsements.
But the media’s ability to politic is not absolute. A newspaper can’t, for example, buy billboards telling you how to vote. But the list of things a newspaper can do to influence voters is significant. It can run editorials endorsing or opposing a candidate; it can run a glowing profile of a candidate, knowing its coverage and imprimatur may be used to promote the campaign and be worth thousands of dollars in paid media; and it can spend large sums to gather and publish dirt on candidates it opposes. The last example is particularly relevant here.
If the Enquirer violated campaign finance laws by spiking the stories it purchased, would it also be illegal to spike stories it spent money to research? Both things happen in the media world, but the latter is likely far more common. If a news outlet devotes substantial resources to digging on a candidate, then chooses not to publish what it found because it doesn’t like the political implications, would that be illegal?
Washington Post: Those payments to mistresses were unseemly. That doesn’t mean they were illegal. (In the News)
By Bradley A. Smith
[R]egardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. 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 Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count? And that gets us to a troubling nub of campaign finance laws: Too often, you can get your target coming or going.
By Bradley A. Smith
In 2005, while presiding over the trial of a Democratic Party fundraiser accused of filing false campaign finance reports, federal judge Howard Matz told the FEC witness who was attempting to explain the reporting requirements:
“[T]o set up this regimen at the FEC, with the reporting consequences, and the transferring at least for accounting purposes of moneys, and the distinctions that some of the witnesses testified to before the jurors, I’m confident that the jurors-I would be surprised if any single juror could follow that extremely complicated evidence. I think it would be a lot more comprehensible to read the Internal Revenue Code from start to finish than to figure out some of the evidence that was issued on the Federal Election Commission requirements.”
Increasingly, campaign finance laws now illustrate the classic situation where the government can always get you for something-it’s just a question of what they’ll get you for…
The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy-and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime. But at a minimum, it is unclear whether paying blackmail to a mistress is “for the purpose of influencing an election,” and so must be paid with campaign funds, or a “personal use,” and so prohibited from being paid with campaign funds.
Normally, given this lack of clarity, we would not expect a prosecutor to charge those involved with a “knowing and willful” violation, which means a criminal charge with possible jail time. Typically, at most a civil fine for an unintentional violation would be the response. But prosecutors may be using a guilty plea from Cohen as a predicate for going after the bigger fish, and our simultaneously vague, sometimes contradictory, and incredibly complex campaign finance laws give them that opening.
By Bradley A. Smith
The decision to stop gathering some donor information seems, on the surface, like a no-brainer. First, the IRS neither used nor needed the information in its everyday operations. Because the new rule applies to nonprofit groups that do not get tax-deductible donations, including trade associations, issue groups such as the National Rifle Association and Greenpeace, and organizations such as volunteer fire departments, the information is not necessary to verify that taxpayers made tax-deductible contributions. (The IRS will still be able to demand donor information when necessary, such as for audits or criminal investigations).
Second, though the information is supposed to be kept confidential, this has not always been the case. For example, in 2014 the IRS was forced to pay damages to the National Organization for Marriage, which supports traditional marriage, after an employee, whose specific identity was never publicly uncovered, leaked information on NOM’s donors to an LGBT rights organization. There is simply no need for the IRS to maintain donor information that might be accidentally released, leaked by a rogue employee, or used by unscrupulous politicians to harass political opponents…
Finally, we might ask why, absent a very good reason, the federal government should ever be collecting data on our memberships and donations in the first place. What business of the government is it if you belong to a fishing club or the National Association of Realtors, or want to support Everytown for Gun Safety or the NRA?
When Justice Kennedy announced his retirement from the Supreme Court last month, the Institute for Free Speech conducted a thorough review of the First Amendment records of each of the potential nominees for the seat on the President’s shortlist, with an emphasis on political speech. Judge Brett Kavanaugh, the eventual nominee, had the longest record […]
[O]n June 30, 1958, the Supreme Court held that Alabama’s demands for the NAACP’s member and donor information violated the organization’s and its members’ freedom of association. “It is hardly a novel perception,” wrote Justice John M. Harlan II, “that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.” Alabama’s demand, he continued, “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”
Today politicians routinely demand that the law be changed to require disclosure of names and personal information of donors to any organization that is involved in public affairs. Concerns about privacy are brushed off with the response that such donors no longer face any substantial threat. And it is true that few causes today generate the potential for violence that faced civil-rights protesters 60 years ago in the deep South.
But NAACP v. Alabama wasn’t a one-off. It was merely the most dramatic of a series of midcentury decisions that protect the right of Americans to support causes without fear of retaliation. The parties protected against compulsory disclosure include union members and organizers (Thomas v. Collins, 1945), those paying for flyers critical of business practices (Talley v. California, 1960), donors to charities (Bates v. Little Rock, 1960), and public-school teachers (Shelton v. Tucker, 1960), among others.
Retaliation from compelled disclosure remains a live risk in the contemporary political scene. Vandalism, boycotts and bullying by both online and real-life mobs are well-documented. In some cases, elected officials have used disclosure information to retaliate against citizens for their lawful support of organizations critical of those same officials.
By Bradley A. Smith
There is no agreed upon definition of “dark money.” Hence it can be used as a pejorative term for any number of things that the person using it does not like.
For example, suppose you give money to the Sierra Club. The Sierra Club then spends some of its money to advocate for the defeat of a political candidate who opposes green energy subsidies. Are you a “dark money” donor? After all, your name will not be publicly disclosed.
Suppose that instead, the Sierra Club uses some its money to run ads urging voters to contact their senators to support green subsidies: Now are you a “dark money” donor? …
In the narrowest sense of the term, “dark money” usually means money spent by a group to promote the election or defeat of a candidate, where that group (like most non-profits and trade associations) does not publicly name all its members and donors. But what does it mean to promote the election or defeat of a candidate, or to use another term bandied out, what is “political spending?” Was the think tank’s spending money on a study that was critical of green energy subsidies “political spending?” If a group like, say, Common Cause, sends out a mailer urging people to demand an end to “dark money,” is that “political spending?” What if it doesn’t actually mention any candidates? What if does, but merely to note their position on a bill to reform campaign finance? …
So here’s the bottom line answer to your question: When somebody talks about “dark money,” they’re not trying to clarify or explain. They’re trying to make something normal sound sinister, something legal sound shady, something complex sound simple. It’s political rhetoric for any spending pertaining to public affairs and elections that the speaker doesn’t like. (Speakers who like the spending call it “donations” or “grassroots advocacy” or something like that).
Illinois Business Journal: Counterpoint: Should the U.S. Constitution be amended to reverse Citizens United? No: Government power over campaign spending is a threat to free speech (In the News)
By Bradley A. Smith
Laws banning corporate speech do not just silence major for-profit firms. They also silence nonprofit advocacy groups. Justice Anthony Kennedy listed examples of speech that would constitute a felony prior to Citizens United: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” …
An amendment reversing Citizens United would be most dangerous for critics of powerful politicians, not those already with money and power. History teaches us that giving government power over speech, however indirect, inevitably harms marginalized groups and critics of the government. America’s strong protections for political speech were developed by generations who discovered that, unless the First Amendment was given a robust interpretation, in practice it was easy for governments to shut down their critics. Those on the outskirts of acceptable political opinion, from civil rights activists to Communist Party members, found themselves at risk of being arrested, fined, and subject to retribution simply for speaking their minds.
This history should inform the current debate. Government officials typically do not go after the message they want to censor directly. Instead they target the methods employed by groups they wish to stop. Political spending is one method that is always under attack.