Trump Indictment Flawed: ‘Hush Money’ is Not a Campaign Expense

April 5, 2023   •  By IFS Staff   •  
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Washington, D.C. – Bradley A. Smith, Chairman of the Institute for Free Speech and a former Chairman of the Federal Election Commission, released the following statement Wednesday morning:

“The criminal case against Donald Trump lacks a necessary element: there is no federal campaign finance violation.

“I said the same thing about the federal prosecution against John Edwards—the behavior was appalling but not illegal under federal campaign finance laws.

“In the case of Mr. Trump, the question of using personal funds to pay ‘hush money’ to a pornographic actress is not a campaign expense, even if he thought it would help him win the election.

“It’s true that the Federal Election Campaign Act defines both ‘expenditure’ and ‘contribution’ as payments ‘for the purpose of influencing any election.’ Yet, almost anything a candidate does can be interpreted as ‘influencing an election.’

“And because campaign finance law impacts core First Amendment free speech rights, the Supreme Court has held that the law must be rooted in clear, objective standards.

“Thus, under the law, independently purchased ads saying ‘Trump should not be indicted’ are not ‘expenditures’ under the law, even if the ‘purpose’ of the spender is to help Trump win the presidency in 2024. Similarly, a donation to a pro-MAGA think tank is not a ‘contribution,’ even though the donor’s subjective purpose might be to influence the next election.

“That’s also why another part of the law specifically bars candidates from using campaign funds for ‘personal use.’ Having campaign donors pay personal expenses that might boost a candidate’s chances of winning—such as a nice suit that looks good on TV, or paying an attorney to help seal embarrassing divorce records—may be done for the ‘purpose of influencing an election.’ But not only are these not campaign expenditures, it is illegal to pay them out of campaign funds.

“The law 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.’ The question is not whether any particular candidate would otherwise have made the expenditure, but whether the expenditure itself is one that can only be made to influence the election—such as buying ads saying “vote for me,” hiring a campaign manager, opening a campaign headquarters, or hiring a lawyer to assure compliance with campaign finance laws.

“So it would be with the payment that Mr. Trump allegedly made in this case. Not every expense that might benefit a candidate is a campaign ‘expenditure’ under the law, even if the candidate’s primary purpose in making the expenditure is to influence the election. In fact, the Federal Election Commission specifically rejected that standard when it wrote the existing regulations a quarter-century ago.

“However, even beyond the First Amendment implications, this case has another disturbing aspect. It illustrates the defects of complex, vague campaign finance laws that regulate speech and campaigns.

“Consider what might have happened if Trump had used campaign funds to pay the alleged hush money. The DA might well allege he committed the crime of converting his campaign funds for ‘personal use.’ This is exactly why a precise, objective definition is necessary in this type of case.

“Stretching campaign finance laws from their limited language and proper purpose will enable other politically motivated prosecutors to attempt to influence future elections. That’s a horrible precedent.”

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government through strategic litigation, communication, activism, training, research, and education.

IFS Staff

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