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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.
I haven't read that case and I don't intend to.
So it does. TIL.
Implicitly I meant "any expenditure by the candidate or people coordinating with the candidate". The distinction I was drawing was that I believed unconnected individuals did not face reporting requirements. You've now alerted me that this is not precisely the case, so I amend my answer: Not a reporting requirement nor a crime, because a "Blue Lives Matter" sign does not constitute "express advocacy".
I'm not sure I understand the question? Why would they be impacted by campaign finance laws at all?
I don't know what to say other than to note that if one boldly declares that they intend to remain willfully ignorant of first amendment law, then most people should probably significantly discount what they have to say concerning first amendment law.
Do you think that paying Stormy Daniels to keep her quiet is "express advocacy"?
RE: Federalist papers
As usual, @gattsuru has an absolute banger of a comment. I would only add that he is citing the specifics on "electioneering communications", which is much more narrow than the extremely broad sounding statutory statement we started with on "expenditures". It is fundamentally this huge gap between extremely broad sounding statutes and very narrow slivers of actual behavior that the FEC tries to enforce (due to the knowledge that going further is likely to catch the Court's ire) that is the core of the inferential distance on this issue. Most people simply don't realize that many many many things that might at first glance appear to be a violation of campaign finance laws will never be enforced, and that if it were tried, the laws would be struck down. The core of my position is that the claims against Trump are in this category. It superficially sounds plausible that the events could be captured by campaign finance law, but if you actually had to argue the case, the law, and the Constitution all the way to SCOTUS, it would not work. It is only because they specifically didn't have to actually argue the law and the Constitution on the issue of campaign finance law (especially not in an appeals court or "court of law", rather than a trial court or "court of fact") that it was able to get to this point.
Clearly not. Accordingly, if some random individual with no connection to Trump paid her to keep quiet, that would not be a reportable expenditure.
We've been doing this question-and-answer thing for a while, and I'm still not sure where you're going with it. It seems like you think election finance law is unconstitutional under the first amendment for some reason, but I'm failing to see how and none of these hypotheticals have gotten me any closer to understanding your position.
This is the chain of conversation as I see it:
And after a back-and-forth, I think you picked it up at:
Now, we have:
So, take the phrase [paying Stormy Daniels to keep her quiet] and plug it in to [buy a "Blue Lives Matter" sign]. From your amended response, I would believe your position to be that there is not a reporting requirement nor a crime for Donald Trump to pay Stormy Daniels. (I am not at the current moment taking any position on what I think is the objectively correct interpretation of the statute/FEC interpretations; I am just trying to make sure I'm actually just reading what you wrote correctly and that we're on the same page for what your claims are.) Is that your position?
I think that everyone who is at all seasoned in Supreme Court precedent in election finance law knows that the Court has already chopped off chunks of broadly-worded statutes because of the first amendment. I might think that some additional components are likely to fall if directly challenged in a suitable case, but that's not really important for my core message here. My core message here is that you simply cannot just look at broadly-worded statutes and imagine you can apply them in the most vast way your mind can come up with. There is a reason why the FEC limits themselves greatly. It's this entire way of doing things, this entire gestalt understanding of how different components of campaign finance law can work together while remaining within the bounds of the first amendment that is the basis of the inferential gap here. There is honestly no way to make that point in a way that I think you will grok without having you just work through hypos, where you have to look at the FEC's guidelines, figure out where the lines are, think about why the lines might be where they are, and maybe even read a case or two from the Court (I know, reading hard) which could be the reason why they did this thing or that thing. It's an entirely different way of thinking, this beast, and like mathematics, you have to mostly spend some time "getting used to it". I once again appreciate @gattsuru for stepping in while I was busy in the last day and wonderfully helping to step through this exact type of exercise for the question of pseudonymity and the question of first amendment constraints on reporting requirements. It's a situation where even if you look at the FEC's current guidelines, you have to also have this interesting sense from prior caselaw to be able to imagine things that very likely happen in the world, but which the FEC does not pursue, and then think about why not.
As an aside, IIRC, you're an Aussie, and one would think that you'd have some understanding and respect for why the concept of secrecy might be useful in various ways in the context of democratic elections.
EDIT: I swear this is a coincidence. I happen to be working through old 3blue1brown videos (as half-entertainment, half-reminding-myself-of-things-I-once-learned), and I just watched this video this morning after I had written that bit about making an analogy to getting used to mathematics. It honestly takes a long time just being steeped in a variety of legal topics to be able to quickly notice the patterns and see where there are likely to be significant legal issues. (...and yes, I think that process requires "reading a bunch" as he says...) I would volunteer that Gattsuru is probably even more steeped than me, but I started steeping myself in the American legal tradition almost twenty years ago now, mostly by just reading a bunch of actual cases (and some secondary sources; once you make the leap to just building the skill of reading opinions, it actually helps you digest secondary sources more easily... and definitely helps you quickly notice which sources are, shall we say, questionable on legal analysis in favor of pushing policy positions).
No. I'm still seeing a distinction between the candidate and people coordinating with the candidate versus unconnected individuals. The "express advocacy" rule seems to apply to unconnected individuals, while the "anything done to affect the election" rule seems to apply to the candidate. So if you, a person with (I presume) no connection to Trump were to pay Daniels to keep quiet, that would not be express advocacy, so you're all clear. Whereas if Trump or someone acting on his behalf (like Cohen) does it, it triggers a reporting requirement (and additionally is subject to contribution limits if the payment does not come directly from Trump himself).
I understand the principle that case law amends how things operate in ways that might not be clear from the text of the statute, and I'm not pretending to be intimately familiar with the body of case law on this topic, but I also think that if you can't point to a specific rule or precedent that's been adopted by the courts previously, it's a bit of a stretch to say the NY court got this case wrong. Like maybe on appeal some higher court finds that yeah, the way we've been applying election finance law has some constitutional issues so we're going to set out a new standard and that means this conviction gets voided. But the trial court's job isn't really to deal with those issues, it's to apply the law as it is currently understood. And as far as I can tell, they did that.
I'm also highly sceptical that there is in fact any relevant first amendment issue that affects this case. Possibly the way things are currently drawn might present some sort of issue in some other hypothetical situation. But in this specific instance, I cannot see how being required to disclose an NDA payment as a campaign expenditure is a limitation on freedom of speech. It's not stopping Trump from saying anything - the only issue I could possibly imagine is the question of whether NDAs are enforceable in the first place (as they involve creating a legal penalty for engaging in certain types of speech), but even that doesn't affect any of the matters at issue here.
Sure. The point of a secret ballot is so people can't effectively threaten or bribe you to vote a certain way. What's the relevance of that?
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While FECA is best-known for its direct contribution limits on candidate-specific communications, much of the point of McCain-Feingold in 2002 was to expand the law's definition of 'electioneering communications' to cover matters that did not target or support a specific politician directly, but also matters like 'issue ads', which focused on topic areas, if usually to highlight a candidate on those matters. In addition to restrictions on when they could run them and how they could fund them, candidates running issues ads (or coordinating with those running issue ads) were required to disclose their participation, known as the "Stand By Your Ad" provision.
This was mostly used where the third-party issue ads explicitly named politicians (such as Citizens United involving a movie about Clinton's history), but the law held a candidate was clearly identified a "specific candidate" where a communication asked to call their representative, even if this resulted in many different 'specific' candidates being involved. And while the Federalist Papers genuinely were more focused on the theoretical foundations, their calls to action and some of the more subtle components would pass this requirement.
The larger length of time between the issuance of the Federalist Papers and the local elections for the convention might have put it outside of the FECA safe harbor timeline, but I'm honestly not sure, and the Stand By Your Ad requirement probably would have applied by its strict text. (In practice, the FEC tends to avoid cases with that clear a First Amendment component, lest they get slapped by SCOTUS again.) And most FECA provisions have a 50k audience requirement and only covered audio and video, which obviously would have been hard to hit in the Founding era.
And, of course, New York law can be much more aggressive than federal law : a New York organization opposing or supporting even specific ballot issues, separate from any specific candidate, must register with the state, report to the state any donations above a certain (low) threshold, and refuse any anonymous contributions. The Federalist Papers would clearly hit that requirement by strict read of the text, though there's both official and unofficial exceptions for organizations whose free speech the ACLU cares about. I think the Federalist Papers could also hit the PAC requirements by a strict read of the text, but I'd have to look through that in more detail to say for sure.
I'm still not really getting it. I was under the impression that the Federalist papers were a series of essays published in newspapers. As far as I know, they weren't ads. Why would they be governed by the rules that apply to modern ads and not the rules that apply to modern newspaper editorials?
...
McCain-Feingold's (and I think NY law) definitions of electioneering communications are not limited to advertisements. Famously so, given that Citizens United revolved around a case where the FEC both prohibited ads for a movie and simply showing that movie.
There are exceptions for contributions (ie costs) by independent news media reporting bonafide news, but the "stand by your ad" rules, reporting provisions, and time provisions do not have such exceptions, and some of the Federalist newspapers probably would fail the modern independence test (if only because almost all newspapers at the Founding Era were tied heavily to local political parties, or were vanity press). In practice, the FEC almost never takes such charges, because at least some would fail Mills (though Mills was about uncoordinated expenditures, and Hamilton was clearly coordinating them), but the strict text would allow them.
Okay, so is the answer to the hypothetical then that yes the Federalist Papers would have been legal but they would have needed to include a "I'm James Madison and I approve this message" style notification?
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