Cohen guilty plea shows campaign finance law issues

It’s hard to feel sorry for anyone involved in the President Donald Trump-Michael Cohen-Stormy Daniels triangle. Trump cheated on his wife with Daniels and lied about it publicly. Daniels was willing to sleep with Trump despite his marriage, accepted money from Cohen to not talk about it, and lied about it publicly. Cohen paid off Daniels – at the behest of Trump – lied about it publicly, admitted to lying, faces prison time for federal crimes, and is trying to raise money for legal bills ala Peter Strzok. All three strike me as people who deserve to be intertwined with each other.

I stayed away from the Cohen plea deal – save for a snarky retweet or two – not only because I don’t care about the entire thing, but the issue of campaign finance laws is murkier than the swamp Trump alleges to want drained.

It should be simple: people, businesses, organizations, and unions can donate to whatever candidate they want. No donation limits. Candidates can spend said money however they want but an itemized list needs to be provided to the FEC and made public.

Things do get dicey when it comes to whether candidates should reveal their list of donors. It’s possible candidates should be forced to release an itemized list of all donors (sans addresses and phone numbers) to the FEC and make known the release is public. However, this raises questions about freedom of association and freedom of speech over direct donations to candidates.

I don’t have a perfect solution to this, unfortunately, and I wish I did. Perhaps repealing the direct election of U.S. Senators is the way to go because then it’s state legislatures deciding who goes to D.C. to represent the upper chamber. That’s a debate for another day – but I think it really should be considered.

One thing the Cohen guilty plea does show is just how complicated the current system is and how easy it is for candidates to get caught up in said system.

Former FEC Commissioner Bradley A. Smith suggested at the confuzzling system really caught Cohen and Trump in a Catch-22.

In the Cohen case, the prosecutors hung their hat on FECA’s definition of “contributions” and “expenditures” as anything spent or contributed “for the purpose of influencing any election.” That’s a pretty broad definition, and certainly it may have been thought that paying hush money to Trump’s old memories would “influence an election.” Thus, they argue, payment of the hush money was subject to limits on the size of contributions used to pay, could not include corporate funds, and had to be reported to the FEC.

But there is another provision in the statute that prohibits a candidate from diverting campaign funds to “personal use.” “Personal use,” in turn, is defined as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even if they are intended to influence the election…

The upshot is that TV ads, polling, hiring a campaign accountant to comply with federal laws, and renting office space are all examples of expenses that exist only because the person is running for office—they are campaign expenses. But if Trump or some other candidate were to tell his personal lawyers, “I want all the lawsuits against me settled. I think they’re a bunch of B.S., but they’re hurting my candidacy,” the settlements would not be “campaign expenses,” even though the payments were made to “influence an election.”

Smith thinks Cohen would have been nabbed by investigators either way because of the way the system is set up. He’s not defending the hush money payments – just pointing out how easy it is for regulators to find violations.

There are obviously people who believe Cohen and Trump violated the law by giving Daniels the money. One former opposition research campaign operative said to me it shouldn’t matter where the cash came from.

While it may be tempting to suggest there are no campaign finance law violations when the money isn’t from the campaign, that is wrong. What makes it more difficult is the fact that the current law places a paper-thin line between “monies spent to preserve one’s reputation,” and “monies spent to influence an election.” Arguably, there is no real difference, in spite of the fact that the voting populace no longer seems to care about character when casting a ballot. Intent does matter, and paying hush money to people who could speak against a candidate’s character during a campaign without reporting it should be a clear cut violation, period. Using personal funds for these pay-offs should not be a “get out of jail free” card for politicians, regardless of level.

I’m not sold on this idea because hush money payments tend to leak out one way or the other. David Pecker obviously knew something since he’s apparently been granted immunity by prosecutors in the probe. Other scandals involving celebrities have leaked out via work by journalists from one entity or another through great sources.

Of course, no one would be considering this a crime if Trump the celebrity did the payment. The complication is because he went into politics.

Exit quote from Smith at Reason.

Now we can see the dilemma the Trump campaign faced. It could pay with funds from outside the campaign, risking prosecution for failing to use campaign funds or file reports. Or it could pay with campaign funds, risking prosecution for an illegal diversion of campaign funds to personal use. “Heads I win. Tails you lose.” Such are our complex campaign finance laws.

The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime. But at a minimum, it is unclear whether paying blackmail to a mistress is “for the purpose of influencing an election,” and so must be paid with campaign funds, or a “personal use,” and so prohibited from being paid with campaign funds.

Leave it to government to muck the whole thing up. Hence why I tend to stay away from campaign finance law stories.