I’ve been thinking a bit about the pieces we’ve run by Rich Lowry, Bradley Smith, and David French on the question of whether hush-money payments intended to protect a political candidate from embarrassment are properly considered campaign-related or “personal.” I’m on Team Lowry/Smith on the question of how best to make sense of the law on the books, but I think it’s fair to say that the statute is vague and confusing when applied to this situation. Congress should have fixed the law’s contradictions back when John Edwards first drew attention to them, and should still fix them today.
The problem appears to be that there are only two categories. If an expense is “personal” — “to fulfill any commitment, obligation, or expense of a person that would exist irrespective” of the campaign — you don’t need to report it to the government, but you are prohibited from using campaign funds to pay for it. If it’s campaign-related — “for the purpose of influencing any election for Federal office” — you have to use reported campaign funds. Not all expenses fit all that well into these two boxes.
The language about purchases fulfilling a “commitment, obligation, or expense” that exists separately from the campaign is especially tricky, because the law doesn’t say whether this has to be the sole reason, the primary reason, or just a reason for the purchase. Trump may not have made the payments if he hadn’t been running for president, but certainly the payments at least in part helped shield his family and him personally from embarrassment, things he’d value apart from the campaign.
Smith writes that the rest of the statute helps us interpret it. For one thing, if this is a campaign expense, that would mean a candidate could collect campaign donations and use them to pay off porn stars, a result Congress likely did not intend. The statute also notes entire categories of purchases that are considered personal, even though in reality they are sometimes made mostly for the purpose of a campaign. This isn’t presented as a special exception for these purchases from the usual “irrespective” rule; the statute specifically says the rule “includ[es]” expenditures such as “a clothing purchase” — implying, plausibly, that when a purchase serves non-campaign purposes to a significant degree, it’s considered to fulfill the candidate’s separate commitments and obligations, even if the candidate is caught on video saying he made it mainly to help the campaign. This stops candidates from raiding their campaign treasuries to buy lots of nice clothes “for the speech tonight.” It also means they can buy nice clothes for the primary or even sole purpose of looking good on the stump without reporting the purchase as a campaign expenditure.
Smith makes a decent case that the best way to interpret the statute as a whole is to put hush-money payments on the personal side too; and in general when a law is ambiguous you interpret it in favor of the accused. But any textualist has to get a funny feeling at the idea of payments that are “made ‘for the purpose of influencing the election,’ yet . . . are not ‘expenditures’ under the Federal Election Campaign Act” (Smith’s words) when that’s literally the definition of “expenditures” in the Federal Election Campaign Act. This means we must change the law to handle future cases.
I think we could go two different routes. One is to just make it official that arranging to keep personal matters quiet is a personal expense even if done to advance the campaign. (Call it the John Edwards/Donald Trump SHUSH Act of 2019. Tweet me your best idea for what SHUSH stands for!) The other would be to create a third category, comprising significant expenses that owe their existence to the campaign but also have a large enough (or dubious enough) personal component that we do not want candidates using donated campaign funds for them. For this category we’d require reporting but also forbid the use of campaign funds.
If there are some things we want candidates to pay for themselves but also report, let’s say so up front.