‘Russia Hoax’ author Gregg Jarrett and former FEC chairman Bradley Smith join ‘Life, Liberty & Levin’ to discuss campaign finance laws.
Washington Post: Is attempting to sway Susan Collins’s vote breaking the law? It’s hard to tell. (In the News)
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 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.
By Eric Peterson
The Fairness Doctrine was first introduced by the Federal Communications Commission in 1949. It required broadcasters “to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” …
Presidential administrations from Kennedy to Nixon used the Fairness Doctrine to maximum effect. The administration could use the doctrine to demand equal air time any time one of the president’s policies was criticized. This not only allowed the president nearly endless opportunities to express his viewpoint, but took time away from his opposition. Eventually, wary of the burdensome government demands, many stations simply stopped airing political commentary altogether.
As one member of the Johnson administration put it: “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.” …
Today, many on the right seem to want a Fairness Doctrine for the Internet. Creating one would demean one of Reagan’s great achievements and give government yet another tool to crack down on its critics.
While President Trump may not like CNN coverage or Google search results of his name, granting the government the power to control search results is asking for a whole host of unintended consequences…
The freedom and choice the Internet provides have allowed for an explosion of different opinions and content available to people around the world. Empowering the government to provide “balance” is not only impractical, but a mistake that could massively backfire – likely against the very people pushing for it.
Washington Examiner: Baltimore has bigger needs than taxpayer money for political campaigns (In the News)
By Eric Peterson
Baltimore Mayor Catherine Pugh signed two charter amendments, cementing their appearance on the November ballot. One of these measures would provide politicians with tax dollars for their political campaigns…
The specifics of the program are still undefined…
But even without the details, every council member and the mayor are for some reason certain this is a great idea…
All involved seemed unfazed by the only speaker opposing the bill, the Baltimore City Department of Finance. The department’s representative warned that the city is projecting a shortfall of revenue, has massive unfunded liabilities, and the highest taxes in Maryland. In light of this situation, the department suggested that there was little public money to put aside to fund political campaigns.
This advice was summarily ignored.
Perhaps ignoring the department’s recommendation would be worthwhile if proponents’ claims about the program were based on evidence instead of rhetoric. Solving issues from corruption to dirty water surely would be worth the hefty price tag. But the results from other cities with tax-funded campaign programs provides no evidence supporters’ claims are true.
New York City has one of the oldest, and most expensive, public financing programs in the country, and little to show for it, other than a large tax bill.
Take, for example, the most recent mayoral general election, where Bill de Blasio cruised to his second term as mayor, winning more than 66 percent of the vote. Still, de Blasio convinced the City’s Campaign Finance Board that he was facing more than “minimal opposition” and qualified for 6-to-1 matching funds despite the program failing to produce a worthwhile challenger. De Blasio received more than $2 million from the city’s coffers in the primary alone.
C-Span (Washington Journal): Bradley Smith on Michael Cohen’s Plea Deal and Campaign Finance Laws (Video) (In the News)
Hosted by John McArdle
Former Federal Elections Commission Chair Bradley Smith talked about his op-ed in the Washington Post that questions if payments made to women by President Trump’s attorney are in violation of campaign finance laws. He spoke via video link from Columbus, Ohio.
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.
Washington Examiner: Gov. Steve Bullock’s nosy lawsuit to make the IRS collect more of your data (In the News)
By Allen Dickerson
As the Supreme Court noted in 1976, when the government demands to know “the giving and spending of money” our freedoms are threatened, “for financial transactions can reveal much about a person’s activities, associations, and beliefs.” It was not for nothing that the IRS was one of Richard Nixon’s favorite tools to harass critics and rivals.
So when the IRS announced it would stop requiring that some nonprofit groups, including labor unions, report the names and addresses of their major donors, everyone should have breathed a sigh of relief. If it doesn’t have this information, the Trump administration cannot misuse it for political gain, or to promote the harassment of donors to left-wing causes.
But Bullock disagrees. His complaint, filed July 24 in federal court, argues that the IRS did not have the statutory power to cease collecting donor information. He’s wrong.
Congress expressly gave the IRS wide discretion to determine the information it needs from nonprofit groups. And federal regulations allow the IRS commissioner to “relieve any … class of organizations … from filing” information when “he determines that such returns are not necessary for the efficient administration of the internal revenue laws.”
Here, the commissioner determined that because contributions to these non-profits (as opposed to 501c(3) non-profits) are not tax-deductible, there is no need to collect donor information to ensure people aren’t improperly claiming deductions. And given the obvious privacy concerns, it was unwise to keep a list of sensitive financial transactions lying around on the IRS’ servers.
Despite all this, Gov. Bullock sued because he would very much like access to private donor information – but without the inconvenience of having to set up his own procedures for getting it.