Inside Campaign Finance Law

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Lawyer Lawyer – Law News and Legal Topics

Inside Campaign Finance Law

12/21/2018

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Erin Chlopak: When somebody knowingly and willfully conceals information from the public, and they do that because they think that it might change how the public exercises their constitutional right to cast a vote for the person who is going to represent them; that’s really serious.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California. I write a legal blog named ‘May it Please the Court’ and have about two books out called ‘How to Get Sued’ as well as a Christmas book called ‘The Sled’.

And a special note today we are celebrating our 500th podcast episode. While we’re open to challenge we believe this to be the longest continuously running legal podcast. So, it’s quite a milestone and thanks to our listeners we’ve gotten this far.

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Well, Campaign Finance Law in the United States can be very complicated in the news and under our current administration we’ve heard the terms campaign finance violations, hush money payments, private versus campaign payouts. Since 2010 the Supreme Court decision in Citizens United v. FEC and the D.C. Circuit Court of Appeals decision in SpeechNOW.org v. FEC, Campaign Finance Law has changed drastically.

So, how these two decisions impacted our Campaign Finance Laws what actually constitutes a campaign violation and is the current administration potentially guilty of this act?

Today on Lawyer 2 Lawyer we are going to discuss what constitutes campaign finance violations, these private versus campaign payouts, and take a look inside campaign and election law in the current political climate. Here to discuss today’s topic is Erin Chlopak, she is the Senior Legal Counsel of Campaign Finance for the Campaign Legal Center.

Erin joined CLC in August 2008 after spending nearly a decade working on a wide range of campaign finance issues in the Federal Election Commission’s Office of the General Counsel. Her areas of focus include CLC’s appellate and district court litigation and its federal reform and state and local reform programs.

Well, welcome to the show, Erin.

Erin Chlopak: Thanks Craig. I am really glad to be here. One quick correction, I actually joined CLC in August of this year. I greatly appreciate the extra 10 years experience which you tried to give me, but alas.

J. Craig Williams: Well, I’m sure you are knowledgeable enough. So, let’s just dive right in here and ask you that question what is essentially a Campaign Finance violation these days?

Erin Chlopak: Well, so Campaign Finance Law in general are the rules governing the raising and spending of money to help candidates get elected to political office, and their primary areas that Campaign Finance Law involves are disclosure requirements that the spending to influence elections be publicly disclosed so voters know who is spending money to influence their votes, who’s providing financial support to candidates, limits on how much people can give directly to candidates, which are called contributions, and that includes loans and in-kind contributions of goods or services, and then prohibitions on certain sources of spending.

We’ve heard a lot in the news about foreign nationals, corporations. Now, Citizens United, as you mentioned, change the rules dramatically by allowing corporations to make unlimited independent expenditures in political campaigns, but they can — corporations remain prohibited from giving contributions directly to candidates.

J. Craig Williams: Well, how do PACs fit into it? Are PACs basically a workaround?

Erin Chlopak: Well, the political committees or PACs are group associations of people that are permitted to make contributions to candidates. There’s restrictions on how much people can give to political committees that make contributions to candidates, after Citizens United and in the other case that you mentioned, the SpeechNOW case and some other decisions by the FEC or Federal Election Commission relying on those decisions there are now a category of PACs, they are commonly known as Super PACs that don’t make direct contributions to candidates and those entities can spend unlimited amounts of money on campaigns independent of candidates so they can run ads to support or oppose candidates that they can’t coordinate with candidates on that funding.

(00:05:19)

J. Craig Williams: Is that a wink-wink nudge-nudge we can’t coordinate?

Erin Chlopak: Yeah, well, I mean, that’s a great question and this is one of the real problems that we’re seeing today is that the premise of the Citizens United decision was that independent spending, that’s not coordinated with candidates as a matter of law cannot corrupt, but that assumption is that that spending is actually in fact independent, and I think we see a lot today and since Citizens United of spending that while there’s no explicit agreement between a candidate and the people spending the money that candidates know who’s spending money to help them. And in fact there have been instances of committees making public resources that are campaigns making public resources by committees can then use to “independently engage in activities” that help them out.

J. Craig Williams: Well, let’s kind of zone in here pretty quickly on one of the things we’re going to be talking about today. Michael Cohen, are we still in the area of private versus campaign payouts when we’re talking about him?

Erin Chlopak: No, I think that the recent court filings both regarding the Michael Cohen’s plea and the non-prosecution agreement entered into with that AMI — American Media entered into, made quite clear that these were not just private payouts.

So, Michael Cohen, in pleading guilty said that he spent the money to pay Stormy Daniels not to publicize the alleged extramarital affair that she had with Trump in coordination and at the direction of Trump himself and that the purpose of those payments was to influence the 2016 presidential election.

AMI has similarly stated that it spent money that it paid $150,000 to a different person who was making similar allegations and that it made those payments also for the purpose of influencing the election.

I think the AMI statement is particularly notable because media entities like the National Enquirer generally have a lot of leeway to — they’re largely exempt from campaign finance laws under an immediate exception that allows legitimate press activities such as publishing articles to be done without being subject to the reporting requirements and other requirements of campaign finance laws, but at the same time corporations are prohibited as I mentioned earlier from making contributions to candidates.

So, AMI’s admission, that’s the money that it spends in its decision to what they call catch and kill or purchase Ms. McDougal’s story and then not publish it that the purpose of all of that activity was to influence the federal election is really significant in telling.

J. Craig Williams: Well, so here’s the $64,000 question or perhaps in today’s parlance the million-dollar question. If AMI was in the room and they’ve put guilty and Cohen was in the room and he’s put guilty and Trump was in the room, where does that leave us?

Erin Chlopak: Right, now, I mean, that’s a really great question and so there certainly seems to be mounting evidence that Trump was involved and directly involved in these payments, and his story has been evolving since he was first asked about them back, I think in April of 2018 and claims he had no knowledge of them, but between his the inconsistency of his statements and these direct admissions by both Cohen and AMI suggesting that the payments were made in coordination with him or at his direction, in the case of Cohen, there seems to be quite compelling evidence and we don’t know what other evidence the prosecutors may have suggesting that Trump was indeed involved. So that raises the question whether there may be criminal liability for him.

Now, the Department of Justice has a policy that they have had for years against prosecuting a sitting president during the president’s term in office, it’s not far from clear whether that policy ever contemplated alleged crimes that would allow — that he will allow the president to get elected into office in the first place, but even if that policy remains in effect there is still the possibility of impeachment and there is also the possibility of an indictment when Trump is no longer in office.

(00:10:06)

J. Craig Williams: And what do we learn from history? I mean certainly we have gone through this before, probably most notably with Nixon.

Erin Chlopak: Exactly. I mean Nixon obviously resigned before he could be impeached. And actually Nixon — the entire Watergate scandal is what led to the Federal Election Campaign Act and the laws that we have now that didn’t exist at the time.

But an interesting fact is that actually Nixon’s personal lawyer went to prison for paying hush money to burglars during the 1972 campaign to keep them quiet and he ended up serving prison time and obviously this ended Nixon’s presidency.

J. Craig Williams: Right. But that brings us then to what Trump has been saying, one of his defenses is well, if my lawyer paid it, then it’s his wrong, not mine.

Erin Chlopak: Right. I mean there is nothing to suggest that the fact that a lawyer was involved in the activity exonerates the candidate or the official who participated and it’s certainly possible that Cohen violated the law and Trump did too, particularly as Cohen has alleged he was acting at Trump’s instruction.

J. Craig Williams: A gun is a gun is a gun.

Erin Chlopak: Right. Exactly.

J. Craig Williams: Well, can you give us a little bit of background on the involvement of foreign nationals and foreign governments in our election process? I mean not only do we have these hush money payments that we have been talking about; we also have obvious involvement of the Russian government. And if you just even remember listening to the debates, the timing of Trump’s statements about the email disclosures from Hillary Clinton and then the information that we have now about the WikiLeaks disclosures and the Russian hacking, this all seems to be woven into a pretty tight web.

Erin Chlopak: Yes, absolutely. So as I mentioned, I think at the beginning there are several different areas of campaign finance law that are implicated here, separate from the restrictions on contributions and the ban on corporations. One of the broadest bans or rules in campaign finance law is a prohibition on foreign nationals being involved in American elections. And the foreign national ban is not just for contribution, it’s for spending money independent of candidates and it applies both to federal and state elections.

And actually a few years ago, in 2012, there was a decision involving the question about whether the restrictions on foreign national participation in American elections is constitutional, and then Judge Kavanaugh authored an opinion emphasizing that the government can bar foreign citizens from participating in the campaign process that seeks to influence how voters cast their ballots in American election. And the Supreme Court affirmed that decision.

But in the environment today, we have a number of different issues raising questions about to what extent Russia was involved in our election. So there is the question about the WikiLeaks information, the meeting that happened at Trump Tower, where it appears that Donald Trump’s son was seeking political opposition research on Hillary Clinton for the benefit of the Trump’s campaign, that certainly soliciting that information itself would violate the ban on contributions or expenditures by foreign nationals.

We don’t know what, if anything, the prosecutors are doing about that information at this point. Just yesterday there was the Flynn sentencing hearing where the judge expressed extreme concerns about the conduct that Michael Flynn had.

J. Craig Williams: Became very obvious it was not what Flynn’s lawyers were expecting yesterday.

Erin Chlopak: Right. No, I think a lot of people were very surprised. There was a lot of speculation that the judge would go easy on him and be concerned about allegations that he or his lawyers had made about the FBI not informing him that it would be a crime to lie to them. But in fact the judge suggested that he might not be prepared to defer to the recommendation of prosecutors not to sentence Flynn to any prison time.

We have the Maria Butina plea, Cohen himself in his plea also.

(00:14:58)

J. Craig Williams: Do you think that when Flynn was sentenced or when a sentencing hearing came up, do you think that the kind of undercurrent unspoken legal maxim of live by the sword, die by the sword came into play for Flynn’s claims to lock up Hillary Clinton?

Erin Chlopak: Yeah. I mean it’s certainly ironic going back to watch the videos of him saying that and I mean similar statements by Michael Cohen as well, so yeah, absolutely.

J. Craig Williams: All right. Well, before we move on to our next segment, we are going to take a quick break to hear a message from our sponsor. We will be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams and we are joined by Erin Chlopak. She is the Senior Legal Counsel of Campaign Finance for the Campaign Legal Center. And just before the break we were discussing what constitutes campaign finance violations, private versus campaign payouts and especially foreign involvement.

And just to follow up on that portion of our conversation, how do you see Trump and Michael Cohen differing from John Edwards? I mean we have very similar circumstances here.

Erin Chlopak: Right. So actually it’s interesting. I mean Trump and I think Rudy Giuliani have suggested that the Edwards case proves that there really can’t be criminal liability here, and I think actually the Edwards case is really unhelpful to this particular case.

In the Edwards case, he was tried, ultimately a jury was not able to agree on most of the charges and rejected one of the charges, but most importantly, I think about that case was that the judge rejected arguments that Edwards had made that the payments couldn’t be campaign contributions because they were not made exclusively to further his campaign.

What the judge said was that a payment to a candidate’s extramarital sexual partner is a campaign contribution if one of the reasons the payment is made is to influence the election. Here there seems to be substantially more and stronger evidence that the payments that were made to the two women alleging affairs with Trump were done because of attempts to influence the election.

First of all, as we just talked about, you have two people who made the payments admitting that the purpose of the payments were to influence the election. We certainly didn’t have anything like that.

In the Edwards case, you have those same people implicating Trump himself in the decision to make the payments. And then the timing of the payments here is really significant. So it was Stormy Daniels, there is reporting that she back in 2011 had been talking about her story and there was some indication that it might be reported in a magazine.

And I think Michael Cohen made legal threats to the magazine about suing it if the story were printed, but that would have been an opportunity; I think it was much closer or right after the birth of Trump’s son, that certainly would have been a time that you would expect to see a payment made, if it were being made for personal reasons. And instead the payment wasn’t made until weeks before the presidential election when Daniels was threatening to come public with this information.

And similarly, with the AMI payment, which was also made I think 12 days before the presidential election. So the timing of those payments so close to the election is a real strong indication that they were made — corroboration of the statements by Cohen and AMI that they were made to influence the election.

J. Craig Williams: Is this almost a Streisand effect, I mean from the standpoint that Barbra Streisand’s home was not really known where it was until it became — she should complained to Google about it being available on Google Maps and then it became viral of where it was located? I mean are we in the same kind of situation here where if Trump had just not said anything and not been forced to disclose? And maybe the question is why is it that — why do we have disclosure laws, what is it that’s so important about disclosures? I mean would these disclosures have changed public votes?

(00:19:55)

Erin Chlopak: That’s a really important question and I don’t have the information to answer that. It’s hard to know what would have happened, but certainly it seems that AMI and Cohen and Trump himself were under the impression that that might be the case. And given how close the election was, that’s a real possibility, and I think it really underscores the importance of disclosure laws.

This is so fundamental to our democracy. This is how — people make decisions about who they want to vote for and disclosure helps them be able to assess who those candidates are, who supports them and really evaluate candidates. And so when you have a candidate running for office that’s hiding, taking steps actively to conceal information that people may consider and that may affect the way people decide how to cast their votes.

J. Craig Williams: Well, if it was important enough to make the payment, it was probably important enough to affect votes.

Erin Chlopak: Absolutely.

J. Craig Williams: So let’s kind of follow the slippery slope here, obviously AMI is pleading guilty, Cohen has pled guilty and is sentenced to three years for felony campaign violations. Felony is certainly more serious than a misdemeanor, but how does a penalty for a sitting President, is it impeachable? Do we have high crimes and misdemeanors here?

Erin Chlopak: Right. So that’s a great question. I wish I could say I knew the answer to that. We don’t have a great deal of precedent on what exactly that means. Only three Presidents in history have been subject to impeachment proceedings, but no President has ever been removed from office through impeachment. It’s really up to Congress to decide whether this is an impeachable offense and it’s a complicated and difficult process.

I am no expert on impeachment, but I do know that the House would vote first and would require a majority — they would vote on Articles of Impeachment and would require a majority to impeach the President, which is kind of like a congressional indictment. But then after that the Senate would hold a trial and you would need at least two-thirds of the Senate to find the President guilty and have him removed from office. That was a stage at which Clinton was not removed because there I think they were 45 votes short of the 67 required.

And you have seen I think in the past days various members of Congress being asked about their concerns about Cohen’s plea and a number of members have sort of dismissed this as, if we prosecuted every campaign finance violation, then everyone would be going to prison, which is really disheartening.

J. Craig Williams: How true is that?

Erin Chlopak: It’s just not true at all.

J. Craig Williams: How common are campaign violations?

Erin Chlopak: So I mean it is true that run-of-the-mill civil violations, where a campaign fails to report spending or contributions by a deadline or inadvertently misstates the totals or fails to refund excessive contributions by the required deadline, those are sort of — those are not uncommon. They are usually remedied by campaigns and sometimes they pay a fine. Sometimes they pay a substantial fine, but those are dramatically different than what we are talking about here, where steps are taken knowingly and willfully, that’s the term of art to even bring a violation into the realm of criminal liability.

But when somebody knowingly and willfully conceals information from the public and they do that because they think that it might change how the public exercises their constitutional right to cast a vote for the person who is going to represent them, that’s really serious, completely undermining the entire way that our democratic process is supposed to work, and that’s a big deal.

J. Craig Williams: Does it come to the level of fraud? And since we are going to talk about that, what’s the remedy? I mean impeachment is certainly a remedy, but if it was a fraud and if there was Russian involvement and there was direct intention to hide these affairs that presumably a significant number of Americans would have voted against someone in that situation, as they have historically in the past, do we have a do over? I mean we have no precedent for this, but what’s being discussed is the potential for how do you unwind a presidency that was obtained this way, if in fact it was?

(00:24:55)

Erin Chlopak: As you say, there is no precedent. I mean under the way the impeachment proceeding would work, if a President is removed from office, then the Vice President would take over. Same thing would happen I think if article — if the Twenty-Fifth Amendment were invoked.

J. Craig Williams: But is there any less involvement in the Vice President’s camp than there is in the President, since they run on the same ticket together? I mean would you — is there an argument that both the Vice President and the President should be impeached at the same time for these violations?

Erin Chlopak: I haven’t seen any allegations about the Vice President having participated in any of the — all these alleged wrongdoings.

J. Craig Williams: I mean I guess there is a taint in the — if there is a taint in the campaign on the President’s side, does that taint also affect the Vice President’s campaign?

Erin Chlopak: I completely take your point. It certainly undermines confidence in the entire process. I mean I think the real solution is to make sure that this doesn’t happen again in the future. And there will be another election in two years and people can exercise their votes in light of all of the information they have at that point.

I mean I think what this entire discussion and this entire situation really does underscore is why campaign finance laws are so important contrary to the sort of efforts to dismiss them as not very meaningful and the need for stronger disclosure laws than we currently have and for stronger civil enforcement than we currently have.

I mean we are really at a situation of great concern now where large amounts of money are being spent on our elections and much of that money is going undisclosed.

J. Craig Williams: Are we approaching anything near RICO? I mean, we have a situation where the Trump Foundation has just agreed to dissolve itself after what is identified in the charging documents is a significant problem, and then you have this situation potentially; if that turns out to be true, which we don’t yet know and is there a pattern here?

Erin Chlopak: That’s a great question. It’s a question for the prosecutors who have all of that information, but it’s certainly concerning the number of pending investigations that seem to implicate President —

J. Craig Williams: And guilty pleas that already exist.

Erin Chlopak: Absolutely, I couldn’t agree more, and yes, as I was saying, I mean I think we really need to improve our existing campaign finance laws and we talked a little bit earlier about Citizens United and the consequence of that case, it’s really just unleash vast amounts of corporate spending on Elections, but the laws that we currently have were really designed for a different time and a different system in which there wasn’t corporate spending on elections in which much of that spending was not happening on the Internet.

And so, we now have these big loopholes in campaign finance law that make it easier for Russia to spend money and to influence how people vote and to do so in a way that totally conceals that information from the public.

J. Craig Williams: Were we really aware that social media had such an influence? I mean, prior to the election were people that cognizant of the political effect of Facebook and Instagram and all these other social platforms that are out there?

Erin Chlopak: No, I don’t think so, and the way that our laws work right now and the FEC as enforcement makes it really easy, not only for foreign entities and the individuals but also for domestic groups and people that want to hide their identity to use social media and the Internet to spend money and try to influence voters and just make sure they do it without explicitly saying vote for or against this person and they can hide who they are, and so people don’t know who is talking to them and it’s deceitful and it should be fixed.

J. Craig Williams: And let’s jump on that point, you said, it’s deceitful, we heard Trump complain about fake news, we have seen a lot of fact-check by the networks and news stations of Trump statements and there’s a whole seemingly late-night industry that delves into it as well on both sides. So, do the campaign finance laws have an element or requirement of truth and then how do we arbitrate that?

Erin Chlopak: Yeah. That’s a good question too, and I think that’s an issue that has actually been litigated in the Supreme Court and because of our First Amendment freedom of speech the court has held fairly clearly that you cannot legislate the truthfulness requirements in the context of politics. So, they can’t — the government cannot mandate that statements be true.

(00:30:03)

Erin Chlopak: So, they can’t, the government cannot mandate that statements be true and one of the big concerns is that — with that is who evaluates whether a political statement is true or not. But I think what that really underscores is like, why disclosure is so important because it’s left to the people to evaluate the statements that are being served to them, and one of the most important ways to do that is to be able to know who is speaking and who is the person or group advocating a particular position and knowing that it’s not just Americans for America — excuse me, Americans for a Better America, but that group is actually such and such individual who spent $5 million on whatever add about this particular issue.

And you can really assess the bias and what personal or private interest that group or organization may have when they’re spending that money and trying to conceal their identity.

J. Craig Williams: And that’s how you determine what the truth is, you let the people determine what the truth is based upon full disclosure all the way around.

Erin Chlopak: Exactly. But we don’t have that right now.

J. Craig Williams: No, perhaps not. It seems like we’re — until we get some factual determinations from the Mueller report and Congress takes steps or prosecutors take steps, it’s all speculation at this point.

Erin Chlopak: Exactly.

J. Craig Williams: So, here we are. We’ve pretty much reached the end of our program, I’d like to take the opportunity here to let you share your final thought and then how listeners can reach out to you and find on you on the web if you’d like.

Erin Chlopak: That would be great. I mean, I think where we were just ending up is a great place to end because my final thought is that this entire drama that’s unfolding, I think really underscores why it’s so important to have campaign finance rules that have parameters about how people operate in the political realm and why disclosure of political spending on the Internet and by corporations and groups spending money to influence how people vote is so important. And we’d like to see those rules strengthened and perhaps with the new Congress next year that will happen.

J. Craig Williams: Great, and tell us about the Center for Campaign Finance.

Erin Chlopak: Oh, great. So, yeah, at the Campaign Legal Center, you can find us at www.campaignlegal.org; and yeah, come visit us.

J. Craig Williams: Great. Well, that brings us to the end of our show. Thank you very much, Erin, for being on it.

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I am Craig Williams. Thanks for listening. Join us next time for another great legal topic.

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