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No. A payment made on the behalf of a campaign counts as a donation to that campaign. (This would be the case if the campaign reimbursed him from campaign funds.) Similarly, a payment made on behalf of a PAC counts as a donation to that PAC. (Again, this would be the case if a PAC reimbursed him from PAC funds.) This was a payment made on behalf of an individual, in his personal capacity. Please cite any statute or FEC interpretation that regulates this behavior as a criminal matter.
§30116(7)(B)(i):
The context of that is that it is a campaign expenditure. You’ve stolen a base assuming it is a campaign expenditure.
You should read what Brad Smith wrote about mixed motives and campaign finance law. Your view seems to be that subjective intent matters but then you create a wholly ungovernable and dangerous scheme for candidates.
Imagine there is a debate coming up. Candidate wants to look sharp so goes to buy a new suit. Well his motive is to look good for campaign purposes so should he use campaign funds? If he does, then he opens himself up to claims that he improperly used funds to pay for the campaign because after the debate he still has this fancy suit (ie there is a mixed use).
Let’s say his proud mother buys the suit for him. Did they run into a campaign finance problem because subjectively it was for the benefit of the campaign? Or was it? Was it just a proud mom having affection for her son and proud of where he was?
Let’s say the candidate is friends with Person X. X regularly has lunches with Y and Z and routinely brings other interesting people to lunch. X brings along the candidate because he wants Y and Z to vote for him but also thinks the candidate is interesting and it would make for an enjoyable lunch. X pats for the expensive lunch. Campaign contribution? If so, does the candidate have to pay for brunch with campaign funds? Now you created jeopardy in that case.
All of these hypos show why mixed motive cases should not be policed because they create untenable and unknowable catch 22 situations for candidates. It is why Brad Smith believes the rules are bright line.
So I think, much like the Colorado case you got dreadfully wrong, you aren’t thinking about the havoc your interpretation of the rules would wrought. Once you think about that, then it becomes clear it can’t be what the system was intended to do.
To be clear, this isn’t a resurrection of the church of the holy trinity. But it is asking in dense texts with hard to understand meanings “does this interpretation create such a crazy system that we don’t think ambiguous phrases should be constructed to lead to such a crazy result.” That is, it is a clear statement principle somewhat similar to the major questions doctrine.
My understanding is that the law says that if the expenditure would not have occurred but for the candidacy, then it is a campaign expenditure. If it would have occurred anyway, then it is not. So in reference to the Trump case, the question is if Cohen would have paid off Daniels if Trump had not been trying to get elected. Presumably, the jury was satisfied that the evidence showed he would not have.
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Ok, let's walk through a hypo to see why the FEC's guidance documents walk a tightrope between interpreting this in a way that lets them get at serious concerns and using this language in a more direct way that runs the risk of jeopardizing the entire edifice of the statute.
Let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he puts on his own lawn. Is that a "contribution to a candidate"? A "contribution to a campaign"? Reportable? Criminal?
I think it's reportable.
Then I think this is a good crux that we can focus on. I don't think we have a case on point, because I don't think the FEC is insane enough to bring a case on facts like these. I think they would face serious first amendment issues, especially in light of Citizens United. There, the Court made clear that the only grounds on which expenditure limitations (and, I believe, the corresponding edifice of distinctions that are being made to consider them in-kind contributions and the corresponding reporting requirements) can constitutionally rest are quid pro quo (trading expenditures->contributions for official acts), given the significant first amendment impacts. Even the Stevens dissent would have drawn the line at a more vague sense of corruption of the political process, perhaps most simply represented by his description of "whether objective observers can reasonably believe that elections (and the official acts that follow) are being bought and paid for". This would fail both tests. It does not make sense that Donald Trump is entering into a quid pro quo with Donald Trump in buying a sign for his own lawn with his own money. It does not make sense that Donald Trump is corrupting an election official or the official acts that he takes by buying a sign for his own lawn with his own money.
i don't think reporting requirements constitute any sort of expenditure limitation though. As I understand it, candidates can spend unlimited amounts on their own campaigns, they just have to report what they spent. I don't see how an obligation to document your campaign expenditures counts as an imposition on free speech.
Flippant response: Then you won't mind
publishingreporting all of your personal expenditures, right? I mean, you can still spend unlimited amounts of money on whatever you want; you just have to report what you spent. No one could possibly see how an obligation to document your expenditures counts as an imposition on free speech, right?Slightly less flippant response: It's kind of amazing, but the Court in Citizens United managed to not talk about reporting requirements at all. Like, they introduce the history of the case and say that CU was challenging the disclaimer, disclosure, and reporting requirements as well, but they literally never talk about the reporting requirements. It just disappears entirely. Almost like they were dodging the issue, so they didn't feel political pressure to falsely say that they were okay, instead perhaps coyly preserving an openness to address the issue later in a follow-on case. Diffusing the hits over time is tried-and-true Court Stuff.
Perhaps more concrete: Surely there are some bounds which contain these requirements. See McIntyre v. Ohio Elections Comm'n, for example. Perhaps the Court has to date avoided addressing the issue in context of campaign finance laws (again, hilariously coincidental that CU magically disappeared any discussion of reporting requirements), but this smells to me like it's just begging for a case. Let's say you and I got together, we conspired, hacked the source code of the universe, but only just a little. I, a totally random individual, but still presumably subject to independent expenditure reporting requirements, pulled some money out of my pocket and bought the most YUGEASS sign for my teeny tiny front lawn. Like, my lawn is so friggin' small, it can barely hold this sign. The sign definitely cost a few hundred dollars, triggering the reporting requirement. You got to pick the candidate that this sign supports. Together, our source code hack accomplishes one thing: it gets the FEC to bring an enforcement action against me, and that enforcement action is now in front of the Supreme Court. How do you think it goes? Does McIntyre v. Ohio Elections Comm'n figure into the picture somehow? How so?
(FYI, note very briefly that I currently rent, and do not own, the teeny tiny yard in front of the house that I rent. Passersby may be able to surmise, "Someone who lives there must really like this guy that Ashlael picked," but they wouldn't be able to use any public records to figure out who I am, unlike what would be the case were I required to publicly report it.)
Changing directions a bit, but bringing us back closer to Trump: the good news is that those reporting requirements, whether ultimately constitutional or not, are only attached to things that "expressly advocate" the election/defeat of a clearly identified candidate. But of course, what Trump did was very much not "express advocacy". So now, on top of that other bundle of issues with reporting requirements generally, we're going to have a slew of killer hypos pulling on this thread, too. Suppose Trump pulls two crisp Benjamins out, which happens to be just enough cash to place a "Blue Lives Matter" sign, not on his own lawn, but on a patch of land that cannot be connected to him, personally. He happens to think that this message will implicitly bolster support among people who are likely to vote for him in addition to just personally believing/liking the message and wanting to support the police. Reporting requirement? Criminal?
EDIT: Hell, we don't actually need to go all the way to Trump doing it. Could again just say that I, a random ass-individual, spent a few hundred dollars on a "Blue Lives Matter" sign (presumably because you picked it out; I don't think I'd ever do that otherwise), but let's immediately forget that parenthetical and assume that I did it because I thought it would implicitly bolster support for Trump and help Trump's election campaign. Reporting requirement? Criminal?
(Ignoring for the sake of argument that I live under a very different legal regime)
It would certainly be an imposition, but it would not be an imposition on my speech rights. I would find it very annoying to have to constantly detail where I bought lunch, but doing so would not in any sense present a first amendment issue. It would be bad policy, but I fail to see how such a law would be unconstitutional.
After all, while the government doesn't require you to report all your expenditures it does require you to report your income. This is accepted as normal and uncontroversial - as are expenditure reporting requirements for political candidates.
My understanding is that if there is no coordination with the candidate there is no reporting requirement. You can spend a billion dollars on "vote Trump" ads and as long as you don't communicate with the Trump campaign there's no obligation to disclose anything.
I think that's a reporting requirement. I haven't gone into any case law, but a plain reading of the legislation would seem to indicate that any expenditure made for the purpose of influencing the election is a campaign expenditure.
Neither. Not a reporting requirement, not a crime.
I think this just is one of those where you are not well-versed with a very different legal regime than your own. I notice that you avoided talking about McIntyre v. Ohio Elections Comm'n. Do you have any comment on that case or how it could play in to a hypothetical future case that directly addresses reporting requirements?
Express advocacy has reporting requirements.
What's the difference? You just said "any" expenditure made for the purpose of influencing the election is a campaign expenditure. So, shouldn't the latter be one, too?
Let me one more hypo you. One that I would be very unsurprised if it literally actually came up in arguments if we had a SCOTUS case directly on the reporting requirements. Would the pseudonymous Federalist Papers have been legal? They were all essentially politicians of various sorts and were surely running for elections at various times. The papers, themselves, were certainly aimed at influencing voting, and they could very plausibly think that it would influence things in ways that would get them elected (as they were, indeed, elected to various positions). Pseudonymous? Or reporting requirement? Criminal?
I want to repeat that very last thing. Is it criminal to not report it? Because I believe NY law was requiring a crime, not a civil infraction that merely incurs a fee.
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