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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?
As I understand it, an NDA is a voluntary contract between two parties, trading one party’s things of value for the other’s agreement not to say a certain set of things. That means breach of contract (disclosing the thing and not paying the penalty listed in the contract) falls under civil suit law, with penalties being restricted to the monetary and enforceable by public judges.
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Ok, so back to the "Blue Lives Matter" sign that Trump put up with his own money. Are you amending your answer back to saying that there is a reporting requirement? Is it criminal if he doesn't report?
I think you've gotten confused. I don't need to "amend my answer back", I've been consistent that candidates face reporting requirements for these types of expenditures. Read back our exchanges while bearing in mind the distinction between candidates and unconnected individuals and you'll see that (even though I did err initially in thinking there was no reporting burden on unconnected individuals rather than a lower burden).
So, yes. There's a reporting requirement, and he violates FECA if he doesn't report it.
I mean, I feel like I'm not the one being confused. The hypo was specifically about Trump, and you said that you were amending your answer to there being no reporting requirement... in context of a hypo specifically about Trump. But this is why I asked, to make sure that you were saying what I thought you should be saying instead of what you actually said.
In any event, we can move on to seeing if your position seems to hold. There are a couple relevant portions of the code. You cited §30116(7)(B)(i), which is where there is the route to convert "expenditures" into "contributions". §30101(9) has the definition of "expenditure". The manual for federal prosecution of election offenses has this to say about the definition of "expenditures":
Clearly, they are seeing that there are significant Constitutional limits placed on the very definition of an expenditure. These limits are prior to the question of whether an expenditure can be converted into a contribution, because they cut at the question of whether something is even an expenditure in the first place. They don't seem to be saying that there is some separate route for a candidate's personal spending to be an "expenditure" which could be converted into a "contribution". Why wouldn't such an attempt run squarely into the same considerations in Buckley? I don't believe Buckley said, "Expenditures are limited to express advocacy, unless it's a candidate's personal funds, in which case they're not so limited." They just said, "Expenditures are limited to express advocacy."
Do you have any citation from any statute, FEC interpretation, or DOJ manual, that "these types of expenditures" actually meet the definition of "expenditure", as limited by the Supreme Court, and that they then trigger a reporting requirement (where it is a criminal offense to fail to report)?
That's not true.
You said
I said
You said
I acknowledged that you were right, and said
You asked me a hypo about a random individual, I answered about a random individual, I amended my answer in the context of a random individual, and I said so clearly.
Okay, on to the concrete issue.
The FEC website says:
We can go to the tape.
So, when you said:
Were you amending your answer to the Trump hypothetical or the random ass-individual hypothetical? Because if you were amending your answer to the random ass-individual hypothetical, that wouldn't be an amendment. It would be the same answer you originally gave. The natural reading is that you were amending your answer to the Trump hypothetical.
Wow. Let me specify. "these types of expenditures" means, in the context of the conversation we were having, "a use of personal funds by a candidate that is within the constitutional scope of the definition of 'expenditure'". Like, I didn't think I had to specify this. After all the detail I went into to show how there are these important concerns that aren't captured by the broad definitions you might first encounter, this is basically a non-responsive reply from you. Really just throwing in the towel.
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