AshLael
Just here to farm downvotes
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User ID: 2498
AshLael
Just here to farm downvotes
1yr ago
So, take the phrase [paying Stormy Daniels to keep her quiet] and plug it in to [buy a "Blue Lives Matter" sign]. From your amended response, I would believe your position to be that there is not a reporting requirement nor a crime for Donald Trump to pay Stormy Daniels. (I am not at the current moment taking any position on what I think is the objectively correct interpretation of the statute/FEC interpretations; I am just trying to make sure I'm actually just reading what you wrote correctly and that we're on the same page for what your claims are.) Is that your position?
No. I'm still seeing a distinction between the candidate and people coordinating with the candidate versus unconnected individuals. The "express advocacy" rule seems to apply to unconnected individuals, while the "anything done to affect the election" rule seems to apply to the candidate. So if you, a person with (I presume) no connection to Trump were to pay Daniels to keep quiet, that would not be express advocacy, so you're all clear. Whereas if Trump or someone acting on his behalf (like Cohen) does it, it triggers a reporting requirement (and additionally is subject to contribution limits if the payment does not come directly from Trump himself).
I understand the principle that case law amends how things operate in ways that might not be clear from the text of the statute, and I'm not pretending to be intimately familiar with the body of case law on this topic, but I also think that if you can't point to a specific rule or precedent that's been adopted by the courts previously, it's a bit of a stretch to say the NY court got this case wrong. Like maybe on appeal some higher court finds that yeah, the way we've been applying election finance law has some constitutional issues so we're going to set out a new standard and that means this conviction gets voided. But the trial court's job isn't really to deal with those issues, it's to apply the law as it is currently understood. And as far as I can tell, they did that.
I'm also highly sceptical that there is in fact any relevant first amendment issue that affects this case. Possibly the way things are currently drawn might present some sort of issue in some other hypothetical situation. But in this specific instance, I cannot see how being required to disclose an NDA payment as a campaign expenditure is a limitation on freedom of speech. It's not stopping Trump from saying anything - the only issue I could possibly imagine is the question of whether NDAs are enforceable in the first place (as they involve creating a legal penalty for engaging in certain types of speech), but even that doesn't affect any of the matters at issue here.
As an aside, IIRC, you're an Aussie, and one would think that you'd have some understanding and respect for why the concept of secrecy might be useful in various ways in the context of democratic elections.
Sure. The point of a secret ballot is so people can't effectively threaten or bribe you to vote a certain way. What's the relevance of that?
AshLael
Just here to farm downvotes
1yr ago
Ok. So is it your position then that by the text of the statutes, when the NYT publishes an anonymous article saying "I am part of the resistance inside the Trump White House", that article would be illegal? But no one prosecutes it because it would so obviously infringe on free speech?
AshLael
Just here to farm downvotes
1yr ago
Indeed, things change. Reunification cannot happen peacefully in the present circumstance. But maybe in another 50 years things will have changed again.
Say what you like about what the CCP did to Hong Kong (and believe me, I do), but it demonstrated their ability and patience to execute a multi-decade plan.
AshLael
Just here to farm downvotes
1yr ago
I'm asking you! I sincerely don't have a strong understanding of the operation of the law in this respect and am trying to get my head around it. Have I understood you correctly?
AshLael
Just here to farm downvotes
1yr ago
What's the tribal landscape like? It it Ashkenazi vote one way while Mizrahi vote another way, or do things split in some other way?
AshLael
Just here to farm downvotes
1yr ago
Okay, so is the answer to the hypothetical then that yes the Federalist Papers would have been legal but they would have needed to include a "I'm James Madison and I approve this message" style notification?
Do you think that paying Stormy Daniels to keep her quiet is "express advocacy"?
Clearly not. Accordingly, if some random individual with no connection to Trump paid her to keep quiet, that would not be a reportable expenditure.
We've been doing this question-and-answer thing for a while, and I'm still not sure where you're going with it. It seems like you think election finance law is unconstitutional under the first amendment for some reason, but I'm failing to see how and none of these hypotheticals have gotten me any closer to understanding your position.
AshLael
Just here to farm downvotes
1yr ago
I'm still not really getting it. I was under the impression that the Federalist papers were a series of essays published in newspapers. As far as I know, they weren't ads. Why would they be governed by the rules that apply to modern ads and not the rules that apply to modern newspaper editorials?
AshLael
Just here to farm downvotes
1yr ago
I'm always interested in learning more about the domestic politics of other countries. What are some things you think are important to understand that media outlets like the NYT don't tell people?
AshLael
Just here to farm downvotes
1yr ago
I think the odds are very low. The US has made meaningful steps towards developing their own semiconducter production capacity, but they aren't there yet, so that means they still need TMSC. Biden has also made explicit statements asserting that a move on Taiwan would be met with military intervention. Moving now risks American retaliation.
Wait some number of years and the situation is different. Biden will be gone, possibly replaced by a new president more willing to let Taiwan fend for themselves. TMSC chips won't be so irreplaceable. If Xi wants to take Taiwan but does not want to start WW3, his best play is to stay patient.
AshLael
Just here to farm downvotes
1yr ago
I'm most certainly ignorant, so please, educate me. What is the governing case law on this topic, and how does it differ from Merchan's instructions?
AshLael
Just here to farm downvotes
1yr ago
My understanding is that the law says that if the expenditure would not have occurred but for the candidacy, then it is a campaign expenditure. If it would have occurred anyway, then it is not. So in reference to the Trump case, the question is if Cohen would have paid off Daniels if Trump had not been trying to get elected. Presumably, the jury was satisfied that the evidence showed he would not have.
AshLael
Just here to farm downvotes
1yr ago
According to the jury instructions, the way the law handles mixed motives is as follows:
Under federal law, a third party’s payment of a candidate’s expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy. If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution.
AshLael
Just here to farm downvotes
1yr ago
I think this just is one of those where you are not well-versed with a very different legal regime than your own. I notice that you avoided talking about McIntyre v. Ohio Elections Comm'n. Do you have any comment on that case or how it could play in to a hypothetical future case that directly addresses reporting requirements?
I haven't read that case and I don't intend to.
Express advocacy has reporting requirements.
So it does. TIL.
What's the difference? You just said "any" expenditure made for the purpose of influencing the election is a campaign expenditure. So, shouldn't the latter be one, too?
Implicitly I meant "any expenditure by the candidate or people coordinating with the candidate". The distinction I was drawing was that I believed unconnected individuals did not face reporting requirements. You've now alerted me that this is not precisely the case, so I amend my answer: Not a reporting requirement nor a crime, because a "Blue Lives Matter" sign does not constitute "express advocacy".
Let me one more hypo you. One that I would be very unsurprised if it literally actually came up in arguments if we had a SCOTUS case directly on the reporting requirements. Would the pseudonymous Federalist Papers have been legal? They were all essentially politicians of various sorts and were surely running for elections at various times. The papers, themselves, were certainly aimed at influencing voting, and they could very plausibly think that it would influence things in ways that would get them elected (as they were, indeed, elected to various positions). Pseudonymous? Or reporting requirement? Criminal?
I'm not sure I understand the question? Why would they be impacted by campaign finance laws at all?
AshLael
Just here to farm downvotes
1yr ago
It won't occur before the election. Willis may indeed be kicked off the case (and IMO she should be). But it's still an extremely serious case, and it doesn't automatically go away after the election happens.
AshLael
Just here to farm downvotes
1yr ago
Flippant response: Then you won't mind publishing reporting all of your personal expenditures, right? I mean, you can still spend unlimited amounts of money on whatever you want; you just have to report what you spent. No one could possibly see how an obligation to document your expenditures counts as an imposition on free speech, right?
(Ignoring for the sake of argument that I live under a very different legal regime)
It would certainly be an imposition, but it would not be an imposition on my speech rights. I would find it very annoying to have to constantly detail where I bought lunch, but doing so would not in any sense present a first amendment issue. It would be bad policy, but I fail to see how such a law would be unconstitutional.
After all, while the government doesn't require you to report all your expenditures it does require you to report your income. This is accepted as normal and uncontroversial - as are expenditure reporting requirements for political candidates.
I, a totally random individual, but still presumably subject to independent expenditure reporting requirements, pulled some money out of my pocket and bought the most YUGEASS sign for my teeny tiny front lawn. Like, my lawn is so friggin' small, it can barely hold this sign. The sign definitely cost a few hundred dollars, triggering the reporting requirement. You got to pick the candidate that this sign supports.
My understanding is that if there is no coordination with the candidate there is no reporting requirement. You can spend a billion dollars on "vote Trump" ads and as long as you don't communicate with the Trump campaign there's no obligation to disclose anything.
Suppose Trump pulls two crisp Benjamins out, which happens to be just enough cash to place a "Blue Lives Matter" sign, not on his own lawn, but on a patch of land that cannot be connected to him, personally. He happens to think that this message will implicitly bolster support among people who are likely to vote for him in addition to just personally believing/liking the message and wanting to support the police. Reporting requirement? Criminal?
I think that's a reporting requirement. I haven't gone into any case law, but a plain reading of the legislation would seem to indicate that any expenditure made for the purpose of influencing the election is a campaign expenditure.
Hell, we don't actually need to go all the way to Trump doing it. Could again just say that I, a random ass-individual, spent a few hundred dollars on a "Blue Lives Matter" sign (presumably because you picked it out; I don't think I'd ever do that otherwise), but let's immediately forget that parenthetical and assume that I did it because I thought it would implicitly bolster support for Trump and help Trump's election campaign. Reporting requirement? Criminal?
Neither. Not a reporting requirement, not a crime.
AshLael
Just here to farm downvotes
1yr ago
I would vastly prefer to be in Trump's shoes in New York than in Georgia. The bar for proving RICO is so low there and it comes with a 5 year minimum sentence.
AshLael
Just here to farm downvotes
1yr ago
i don't think reporting requirements constitute any sort of expenditure limitation though. As I understand it, candidates can spend unlimited amounts on their own campaigns, they just have to report what they spent. I don't see how an obligation to document your campaign expenditures counts as an imposition on free speech.
AshLael
Just here to farm downvotes
1yr ago
TBH I'm not sure that a second New York jury would get to the same verdict. I think the verdict is correct, but it's clearly the weakest of the cases against him and I was not confident he would be convicted.
But regardless, I think it's disingenuous to describe Manhattan as being 90-10 against Trump in this context. That's true of the voting population, but something like 40% of the people there didn't vote in 2020 (can't be arsed to look up the exact figures). I do not believe that it is particularly challenging to find 12 impartial jurors among a population where somewhere between a third and a half of them voted neither for nor against Trump. Believe it or not, there's a LOT of people who sincerely find politics tremendously uninteresting and are not at all invested in the success of one side or the other.
AshLael
Just here to farm downvotes
1yr ago
I'll make the point here that the judge was legally barred from fining Trump more than $1k for each instance of contempt. He could have jailed him, but he could not have levied multi million dollar fines.
AshLael
Just here to farm downvotes
1yr ago
Hunter Biden is being prosecuted. He's not currently behind bars, but neither is Trump.
New York apparently prosecutes falsifying business records something like a thousand times a year.
AshLael
Just here to farm downvotes
1yr ago
§30116(7)(B)(i):
expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate;
I agree that it's kind of a dumb standard to have, but it appears to be the one that exists. If these same events had occurred in Australia the NDA payment would have clearly fallen outside the definition of "electoral expenditure", and this is one of many areas where I think Australian law is better than American law. But Trump is an American, and he has to follow American law.
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