If a candidate for public office decided to settle a private lawsuit to get it out of the news before Election Day, would that be a campaign expenditure? If a business owner ran for political office and decided to pay bonuses to his employees, in the hope that he would get good press and boost his stock as a candidate, would that be a campaign expenditure, payable from campaign funds?
Under the theory that then-candidate Donald Trump’s attorney Michael Cohen violated campaign finance laws by arranging hush-money payments to women accusing Trump of affairs, the answer would seem to be yes. We should think twice before accepting that answer.
The U.S. attorney for the Southern District of New York has extracted a guilty plea from Cohen for “knowingly and willfully” violating campaign finance laws by arranging for payments to two women accusing Trump of extramarital affairs. Cohen admitted he did so under the direction of “a candidate” – obviously referencing the president – to “influence” an election. Cohen was facing multiple tax and fraud charges that could have landed him in jail for the rest of his life, even if he beat the campaign finance allegations. By pleading guilty, he limits his jail time to just a few years.
However, regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries seems more like bribery than funding campaign speech.
That’s why another part of the statute defines “personal use” 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 though the candidate might benefit from it. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.
Suppose that Trump had told his lawyers, “Look, these complaints about Trump University have no merit, but they embarrass me as a candidate. Get them settled.” Are the settlements thus “campaign expenses”? The obvious answer is no, even though the payments were intended to benefit Trump as a candidate.
If the opposite were true and they were considered campaign expenses, then not only could Trump pay them with campaign funds, he would be required to pay with campaign funds. Is that what campaign donations are for?
But let’s go in that direction. Suppose Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count? And that gets us to a troubling nub of campaign finance laws: Too often, you can get your target coming or going.
Yes, those payments were unseemly, but unseemliness doesn’t make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a “campaign expense” or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a “knowing and willful” violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.
But Cohen is not the normal defendant, and prosecutors almost certainly squeezed him to plead guilty on these charges, in part, for the purpose of building a case for possible criminal or impeachment charges against the president, or even, daresay, “influencing the re-election” of Trump.
Laws, once stretched from their limited language and proper purpose, are difficult to pound back into shape. We should proceed with caution here.
Bradley Smith, a former chairman of the Federal Election Commission, is chairman of the Institute for Free Speech.
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