This is the critical point that keeps getting missed: “It must exist solely because the candidate is running for office.” And that’s a challenging bar.
Democrats and media commentators are noting that many Republicans are “shrugging off” the fact that Michael Cohen pleaded guilty to felony campaign finance violations which prosecutors say President Trump directed him to commit. The president, they say, is “implicated in two felonies.” How could GOP lawmakers shrug that off?
One little-discussed reason is that many Republicans never liked and continue to oppose current campaign finance laws. They don’t approve of limits on contributions by individuals, corporations, and others — they view those limits as restrictions on constitutionally-protected speech. So they don’t approve of what the laws are designed to do. But of course, the restrictions are law. Given that, many Republicans favor interpreting the law in the most limited way possible.
In that spirit, with the Cohen case, some of the best conservative thinkers on campaign finance are arguing that Cohen’s offense, to which he has pleaded guilty, wasn’t really an offense at all. And it certainly wasn’t an offense for which President Trump could be prosecuted.
Brad Smith, a former chairman of the Federal Election Commission, is one of the strongest voices in opposition to much of the current campaign finance law structure. He doesn’t believe the Trump-Cohen Stormy Daniels payoff was a campaign finance violation because he doesn’t believe it was a campaign expenditure. In a recent email exchange, Smith explained his position at some length:
Not everything that is subjectively intended to influence an election is a campaign expenditure. For example, if Trump (or any other businessman running for office) settled lawsuits against the business in order to get them off the table, so that they wouldn’t become campaign issues, those settlements would not be campaign expenses, but would remain personal expenses, payable by Trump or the company sued. That is true even if the suits were deemed totally meritless by Trump’s lawyers and paid solely as nuisance settlements to prevent bad campaign press.
The standard “for the purpose of influencing a campaign” must be read in pari materia with the prohibition in the statute on personal use of campaign funds. That section and its regulations define things that are not campaign expenditures, and personal use includes any obligations that would exist irrespective of the campaign. The obligations to Daniels or others (such as they were) were not created as a candidate. Moreover, even if Trump decided to pay the blackmail in part because he was running for president, in its implementing regulations, the FEC specifically rejected a mixed motive test, i.e. that something would count as a campaign expense if one of multiple motives was to help the campaign. It must exist solely because the candidate is running for office. But Daniels’ blackmail threat exists whether or not Trump was running for office. Clearly, Trump may be more inclined to pay it because he was running for office, but it still existed. Indeed, Daniels has said she was threatened way back in 2012. And if she only came forward after Trump were elected, he might still pay it — yet the campaign would be over. In short, it doesn’t arise solely from the campaign.