[EL] Trump and campaign finance allegations

[Smith, Brad]

Steve's column is well done, but I take issue with one line. Steve writes:

In the aftermath of Edwards’s 2012 trial, which revealed a major loophole, the commission offered no guidance concerning the circumstances in which a third-party payment for a candidate’s personal expenses (not just those for a mistress) would be considered a contribution subject to legal limits and disclosure.

It's true that the FEC offered no further guidance after the Edwards trial. But the FEC has substantial, existing guidance on the question of personal expenditures. The problem isn't lack of guidance. It's that over-zealous federal prosecutors don't like the FEC rule and its guidance, and want to try opposing theories. And in the Trump presidency, this is made worse because about half the population seems unwilling to consider that Trump might do something unwise, sordid, or boorish, and not have it be a legal violation.

I doubt that FEC guidance could be much clearer, short of adding "blackmail payments dating from behavior or events occurring before a person becomes a candidate," but that kind of specificity would merely leave create even more befuddlement when the next new fact situation comes along -- "why wasn't it listed?"

In recent years, states as diverse as North Dakota and Pennsylvania have been trying to tighten up their personal use rules to be more like the FEC's, because they are having exactly the problem that the FEC rules were, in fact, intended to address--candidates using campaign funds to pay personal expenses simply because those expenses in some general way might be relevant to--and hence intended to, at least in part--influence the campaign. These states had defined campaign expenditures broadly because they want to capture more within the regulated system. The federal law takes the opposite approach--it wants to make sure that candidates cannot convert campaign funds to personal use--bribes, if you will--by claiming a broad, general connection to the campaign or any possible advantage an expenditure might give a candidate.

The problem isn't really lack of clarity: it's unwillingness to accept the standard in the law.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Tuesday, March 26, 2019 11:31 PM
To: Election Law Listserv
Subject: [EL] ELB News and Commentary 3/27/19



“Why Trump probably won’t get in trouble for campaign finance violations”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d104365&c=E,1,UoGmwHkEwZSJx1T0LDTr0k6Pqu4KAi1TTSjiLF-x3f-8lhjTymwSH8lUAluMx1Wjm8WkRb1i5zrCdmbG8EHuM2jauHxC_Raufevbp1NOy5w,&typo=1>
Posted on March 26, 2019 8:02 pm<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d104365&c=E,1,WQf96uiMqMGjECmQnnBPxvSe4w77IvPZ1DYbiYjOOV2In2rqrJv3nAqI861cRA0kHC-oQtY6nAzGx0oueZ5tk7tIKDpCKbrlx5GWZB6P4IwAMP0,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,APfW0V2jSe_5PMsxIgH2dLfcxAGwOyrYPYvjd17ow4noUkuy6Coh3f3QXIbnGEqtKx77yjQE8_2Kxy1GINTvMkmTh1AYEi511eac5OzfwHiI&typo=1>

I missed this Steve Weissman oped<https://www.washingtonpost.com/outlook/2019/03/07/why-trump-probably-wont-get-trouble-campaign-finance-violations/?utm_term=.f5351da786d1> in WaPo a few weeks ago.
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