ControlsFreak
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User ID: 1422
ControlsFreak
9hr ago
Ok, so not amending. Got it.
And ..sigh. Let me try again. If Trump uses personal funds to buy a "Blue Lives Matter" sign, do you have any citation from any statute, FEC interpretation, or DOJ manual, that "these types of expenditures" (I.e., Blue Lives Matter signs) actually meet the definition of "expenditure", as limited by the Supreme Court, and that they then trigger a reporting requirement (where it is a criminal offense to fail to report)? We'll get to NDAs in a bit.
ControlsFreak
9hr ago
I don't know what I'm supposed to do with that. Brad Smith's personal belief can't be the standard by which the law operates. There has to be some sort of actual standard
Aaaand now you're getting us into the land of 'void for vagueness'. Brad Smith says that the FEC believes that there is an objective test here. He believes he understands that objective test. But we know that the standard by which the law operates can't just be any of our personal beliefs about the few words we have in the statute (not even the jury's personal beliefs). If it were that, then there is no way for an individual to know ahead of time, objectively, whether the actions they were thinking about taking were in the illegal bucket or the not illegal bucket. This is classic void for vagueness territory.
The way these things are usually handled in the administrative state is something something agency rulemaking, something something Chevron maybe. Before you get into the morass of trying to prosecute people for a bunch of impossibly vague statutes, an agency, in this case, likely the FEC, should go through the rulemaking process to try to interpret the ambiguity in a clear way so that people can be suitably informed. There's notice and comment procedures and everything that you have to go through to get this, but if you did, then it would basically be "the FEC's personalinstitutional beliefsinterpretation" that would control. But we don't have that here. The best we have is a Democratic appointee to the FEC saying, "If the FEC had really gone through the process to make this abundantly clear, so that everyone knew that we were thinking that there was an objective test involved, then the result would be that this is not a crime." But we're stuck in a spot where the best that you can say against Trump is that they haven't gone through this process to put a full administrative interpretation out there. Not only is it classic void for vagueness in the absence of such an administrative interpretation, it heavily weighs against scienter, because Trump can't have intended to violate a standard that is only ex post knowable from your comments on an obscure website, the personal beliefs of a NY judge he's not met yet, or the personal beliefs of a jury which has not yet been convened.
The hilarious part about this is that we have to get through 90% of all these other examples of, "No, the wording in the statute doesn't actually mean what it appears to mean, because [reasons]," many of which are at least reasonably spelled out by clear FEC interpretation or Court precedent if you've read enough. But at the end of all that, when we get to the final stage, we still have a thing that likely doesn't mean what the words in the statute appear to mean at first glance, again, for [reasons]. This is the reason why many people don't view this as a simple case of, "Trump broke the law; he's not above the law; he should be prosecuted just like anyone else." It's why the entire concept of the case is so troubling, and it's frankly the reason why they pursued it the way they pursued it. If you just shove all the mess of the core, vitally-important questions into a tiny box that you try to mostly ignore and swear that it's totally a crime if you don't think about it too much, but trust us it's totally a crime, without actually having to prosecute and prove that crime in an appropriately competent court with domain expertise and appellate review for the trickier questions, it all appears sketchy as hell.
Like I said at the outset, when this eventually hits appellate review, either in a federal circuit court or just at SCOTUS directly from NY's highest court, I think it's highly likely that it ends up resolved in Trump's favor. I'd probably say more 80/20 than 50/50. It likely won't be until after the election, unfortunately, likely because there are too many folks in the process with the capability and desire to slow-play it. And that really is damaging to democracy.
ControlsFreak
11hr ago
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.
So, when you said:
I amend my answer: Not a reporting requirement nor a crime, because a "Blue Lives Matter" sign does not constitute "express advocacy".
Were you amending your answer to the Trump hypothetical or the random ass-individual hypothetical? Because if you were amending your answer to the random ass-individual hypothetical, that wouldn't be an amendment. It would be the same answer you originally gave. The natural reading is that you were amending your answer to the Trump hypothetical.
Do you have any citation from any statute, FEC interpretation, or DOJ manual, that "these types of expenditures" actually meet the definition of "expenditure", as limited by the Supreme Court, and that they then trigger a reporting requirement (where it is a criminal offense to fail to report)?
The FEC website says:
An expenditure is a purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value to influence a federal election. "Disbursement" is a broader term that covers both expenditures and other kinds of payments (those not made to influence a federal election). All disbursements are reportable by the campaign.
Wow. Let me specify. "these types of expenditures" means, in the context of the conversation we were having, "a use of personal funds by a candidate that is within the constitutional scope of the definition of 'expenditure'". Like, I didn't think I had to specify this. After all the detail I went into to show how there are these important concerns that aren't captured by the broad definitions you might first encounter, this is basically a non-responsive reply from you. Really just throwing in the towel.
ControlsFreak
11hr ago
Here is another good one, where he says the kind of thing I've been saying about campaign finance law:
The problem, of course, is that campaign finance law is extremely complex and just reading the statute to people isn’t really going to help them very much.
Just saying that there's this irrespective test basically doesn't help unless you're steeped in this world. He gives some examples:
Go back to 1999. Hillary Clinton buys a house in New York. She bought it clearly to influence the election — I mean absolutely, right? — because she had to have a residence in New York. It is totally indisputable — that is a reason why she bought it. But it’s not a campaign expenditure. It doesn’t matter.
and
“I can tell you my personal belief is that clearly paying hush money, or paying for a nondisclosure agreement, does not constitute a campaign expense,” Smith said. “To use an example I’ve often used, it’s not a campaign expense if a businessperson is running for office and his businesses are getting sued, and if he goes to his company lawyers and says, ‘I want to settle these lawsuits against us. We’ve got some wage employment lawsuits and a woman is alleging sexual harassment. We’ve got 36,000 employees, but we’ve got these three complaints and the press will make a big deal about them. So I want you to settle these.’ And the company lawyers say, ‘No, these are great cases we should win. We shouldn’t settle them.’ He says, ‘I don’t care. I’m running for office. I don’t want press stories on it. I want you to settle them quietly.’ Well, he cannot use campaign funds to pay that settlement, even though he is clearly doing it for the purpose of influencing his campaign."
He's saying that, sure, the judge can mouth the words of the statute, but is that actually going to communicate what "the law" is? He doesn't think so, because you need some steeping. With that steeping, he thinks, the FEC would absolutely have considered it not a campaign expense and illegal for him to pay with campaign funds. Note that this is a somewhat different concern than in our other conversation, where we were talking about expenditures in terms of things that can be converted into contributions. There are still significant questions about whether it's a thing that could be captured as an expenditure, separately, and then whether constraints exist on Trump's ability to have expenditures and such in a way that can be sustained under the Constitution.
ControlsFreak
13hr ago
I mean, I feel like I'm not the one being confused. The hypo was specifically about Trump, and you said that you were amending your answer to there being no reporting requirement... in context of a hypo specifically about Trump. But this is why I asked, to make sure that you were saying what I thought you should be saying instead of what you actually said.
In any event, we can move on to seeing if your position seems to hold. There are a couple relevant portions of the code. You cited §30116(7)(B)(i), which is where there is the route to convert "expenditures" into "contributions". §30101(9) has the definition of "expenditure". The manual for federal prosecution of election offenses has this to say about the definition of "expenditures":
“expenditure” – in general, any purchase, payment, or anything else having pecuniary value that is made for the purpose of influencing the nomination or election of a federal candidate. § 30101(9). In the context of public communications, the definition has been judicially limited to disbursements for communications that contain “magic words of express advocacy,” such as “elect,” “defeat,” or “vote for,” or that otherwise clearly call for elective action for or against a clearly identified federal candidate. Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 247–249 (1986); Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976).
Clearly, they are seeing that there are significant Constitutional limits placed on the very definition of an expenditure. These limits are prior to the question of whether an expenditure can be converted into a contribution, because they cut at the question of whether something is even an expenditure in the first place. They don't seem to be saying that there is some separate route for a candidate's personal spending to be an "expenditure" which could be converted into a "contribution". Why wouldn't such an attempt run squarely into the same considerations in Buckley? I don't believe Buckley said, "Expenditures are limited to express advocacy, unless it's a candidate's personal funds, in which case they're not so limited." They just said, "Expenditures are limited to express advocacy."
candidates face reporting requirements for these types of expenditures
Do you have any citation from any statute, FEC interpretation, or DOJ manual, that "these types of expenditures" actually meet the definition of "expenditure", as limited by the Supreme Court, and that they then trigger a reporting requirement (where it is a criminal offense to fail to report)?
ControlsFreak
16hr ago
Lots of people see things lots of ways. All hail the mods and all that. As for me and my house, we will read the comments that people cite to justify the way they see things.
ControlsFreak
18hr ago
None of the lawyers I've seen arguing against the verdict have raised the definition of "campaign expenditure" as incorrectly applied
I think you've persisted in not addressing what Brad Smith has said, which is exactly that the definition of "campaign expenditure" was incorrectly applied.
ControlsFreak
19hr ago
the "anything done to affect the election" rule seems to apply to the candidate.
Ok, so back to the "Blue Lives Matter" sign that Trump put up with his own money. Are you amending your answer back to saying that there is a reporting requirement? Is it criminal if he doesn't report?
ControlsFreak
19hr ago
How NOT to Regulate the Tech Industry
Hot on the heels of my comment describing the UK's effort to finally rid the IoT market of extremely basic vulnerabilities like "has a default password", Colorado jumps in like Leroy Jenkins to show us how, exactly, tech regulation shouldn't be done. SB 205 is very concerned with "algorithmic discrimination", which it defines as, "any condition in which the use of an artificial intelligence system results in an unlawful differential treatment or impact that disfavors an individual or group of individuals on the basis of their actual or perceived age, color, disability, ethnicity, genetic information, limited proficiency in the English language, national origin, race, religion, reproductive health, sex, veteran status, or other classification protected under the laws of this state or federal law."
Right off the bat, it seems to be embracing the absolute morass of "differential treatment or impact", with the latter being most concerning, given how incomprehensible the similar "disparate impact" test is in the rest of the world. This law makes all use of algorithms in decision-making subject to this utterly incomprehensible test. There are rules for developers, telling them how they must properly document all the things to show that they've apparently done whatever magic must be done to ensure that there is no such discrimination. There are rules for deployers of those algorithms, too, because the job is never done when you need to root out any risk of impacting any group of people differently (nevermind that it's likely mathematically impossible to do so).
Their definitions for what types of algorithms this law will hit are so broad that they already know they captured far too much, so they go on a spree of exempting all sorts of already-existing things that they know about, including:
(A) ANTI-FRAUD TECHNOLOGY THAT DOES NOT USE FACIAL RECOGNITION TECHNOLOGY;
(B) ANTI-MALWARE;
(C) ANTI-VIRUS;
(D) ARTIFICIAL INTELLIGENCE-ENABLED VIDEO GAMES;
(E) CALCULATORS;
(F) CYBERSECURITY;
(G) DATABASES;
(H) DATA STORAGE;
(I) FIREWALL;
(J) INTERNET DOMAIN REGISTRATION;
(K) INTERNET WEBSITE LOADING;
(L) NETWORKING;
(M) SPAM- AND ROBOCALL-FILTERING;
(N) SPELL-CHECKING;
(O) SPREADSHEETS;
(P) WEB CACHING;
(Q) WEB HOSTING OR ANY SIMILAR TECHNOLOGY; OR
(R) TECHNOLOGY THAT COMMUNICATES WITH CONSUMERS IN NATURAL LANGUAGE FOR THE PURPOSE OF PROVIDING USERS WITH INFORMATION, MAKING REFERRALS OR RECOMMENDATIONS, AND ANSWERING QUESTIONS AND IS SUBJECT TO AN ACCEPTED USE POLICY THAT PROHIBITS GENERATING CONTENT THAT IS DISCRIMINATORY OR HARMFUL.
If your idea for a mundane utility-generating algorithm didn't make the cut two weeks ago, sucks to be you. Worse, they say that these things aren't even exempted if they "are a substantial factor in making a consequential decision". I guess they also exempt things that "perform a narrow procedural task". What does that mean? What counts; what doesn't? Nobody's gonna know until they've taken a bunch of people to court and gotten a slew of rulings, again, akin to the mess of other disparate impact law.
Don't despair, though (/s). So long as you make a bunch of reports that are extremely technologically ill-specified, they will pinky swear that they won't go after you. Forget that they can probably just say, "We don't like the look of this one TPS report in particular," and still take you to court, many of the requirements are basically, "Tell us that you made sure that you won't discriminate against any group that we're interested in protecting." The gestalt requirement can probably be summed up by, "Make sure that you find some way to impose quotas (at least, quotas for whichever handful of groups we feel like protecting) on the ultimate output of your algorithm; otherwise, we will blow your business into oblivion."
This is the type of vague, awful, impossible regulation that is focused on writing politically correct reports and which actually kills innovation. The UK's IoT rules might have had some edge cases that still needed to be worked out, but they were by and large technically-focused on real, serious security problems that had real, practical, technical solutions. Colorado, on the other hand, well, I honestly can't come up with words to describe how violently they've screwed the pooch.
ControlsFreak
1d ago
To be completely honest, as someone who doesn't really participate in the IQ/HBD wars, this mostly sounds like regular petty whining that all sorts of people have lists of for their pet issues. When I've looked at the actual comments people cite for their similar claims, my statements hold.
ControlsFreak
1d ago
He perpetually misrepresented his opponent
I read through the various comments cited for the ban, and I didn't really see much of this. I saw a more direct, "I think you're 'hiding your power level'." I don't think I've seen any clarity from the mods on whether stating such beliefs are against the rules.
refused to engage with points actuality made
Here, I think he did so in a way that was actually kind of reasonable. He openly and clearly stated that he rejected the underlying framework that led to the point being made. He gave reasons why he rejected it. This is good comment behavior, even if it really pisses off some of the people who have their entire underlying framework rejected.
he was snotty while doing it.
This is probably the most accurate claim. Poor aesthetics. Oof for a permaban.
His average quality of engagement was low.
I think any commenter that continues to engage in discussion is going to end up with a low average, depending upon how "engagement" is defined. All long comment threads, for the sake of not-taking-infinite-time result in some amount of paring down, dropping some things that feel incidental, etc. I've had plenty of experience of times when I've repeated a point that I thought was significantly not incidental, calling out that it was dropped, perhaps on grounds that they thought it was incidental, but that I thought it was not. It is only after a couple/few repeated refusals (without explanation) that you can essentially build a pattern that they're simply ignoring a point because it's inconvenient, rather than due to believing that it's incidental or because they reject the underlying framework of the point.
Kind of hilarious that even Darwin came to his defense on this topic of dropping some points in the interest of time and trying to get to the crux, considering that he was a prime example of someone who would do the precise thing I'm contrasting - repeatedly refuse to engage at all with a repeatedly-stated point that was simply inconvenient (among other bad commenter things that he did).
This is the chain of conversation as I see it:
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.
And after a back-and-forth, I think you picked it up at:
I amend my answer: Not a reporting requirement nor a crime, because a "Blue Lives Matter" sign does not constitute "express advocacy".
Now, we have:
Do you think that paying Stormy Daniels to keep her quiet is "express advocacy"?
Clearly not.
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?
It seems like you think election finance law is unconstitutional under the first amendment for some reason
I think that everyone who is at all seasoned in Supreme Court precedent in election finance law knows that the Court has already chopped off chunks of broadly-worded statutes because of the first amendment. I might think that some additional components are likely to fall if directly challenged in a suitable case, but that's not really important for my core message here. My core message here is that you simply cannot just look at broadly-worded statutes and imagine you can apply them in the most vast way your mind can come up with. There is a reason why the FEC limits themselves greatly. It's this entire way of doing things, this entire gestalt understanding of how different components of campaign finance law can work together while remaining within the bounds of the first amendment that is the basis of the inferential gap here. There is honestly no way to make that point in a way that I think you will grok without having you just work through hypos, where you have to look at the FEC's guidelines, figure out where the lines are, think about why the lines might be where they are, and maybe even read a case or two from the Court (I know, reading hard) which could be the reason why they did this thing or that thing. It's an entirely different way of thinking, this beast, and like mathematics, you have to mostly spend some time "getting used to it". I once again appreciate @gattsuru for stepping in while I was busy in the last day and wonderfully helping to step through this exact type of exercise for the question of pseudonymity and the question of first amendment constraints on reporting requirements. It's a situation where even if you look at the FEC's current guidelines, you have to also have this interesting sense from prior caselaw to be able to imagine things that very likely happen in the world, but which the FEC does not pursue, and then think about why not.
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.
EDIT: I swear this is a coincidence. I happen to be working through old 3blue1brown videos (as half-entertainment, half-reminding-myself-of-things-I-once-learned), and I just watched this video this morning after I had written that bit about making an analogy to getting used to mathematics. It honestly takes a long time just being steeped in a variety of legal topics to be able to quickly notice the patterns and see where there are likely to be significant legal issues. (...and yes, I think that process requires "reading a bunch" as he says...) I would volunteer that Gattsuru is probably even more steeped than me, but I started steeping myself in the American legal tradition almost twenty years ago now, mostly by just reading a bunch of actual cases (and some secondary sources; once you make the leap to just building the skill of reading opinions, it actually helps you digest secondary sources more easily... and definitely helps you quickly notice which sources are, shall we say, questionable on legal analysis in favor of pushing policy positions).
ControlsFreak
2d ago
I haven't read that case and I don't intend to.
I don't know what to say other than to note that if one boldly declares that they intend to remain willfully ignorant of first amendment law, then most people should probably significantly discount what they have to say concerning first amendment law.
Not a reporting requirement nor a crime, because a "Blue Lives Matter" sign does not constitute "express advocacy".
Do you think that paying Stormy Daniels to keep her quiet is "express advocacy"?
RE: Federalist papers
As usual, @gattsuru has an absolute banger of a comment. I would only add that he is citing the specifics on "electioneering communications", which is much more narrow than the extremely broad sounding statutory statement we started with on "expenditures". It is fundamentally this huge gap between extremely broad sounding statutes and very narrow slivers of actual behavior that the FEC tries to enforce (due to the knowledge that going further is likely to catch the Court's ire) that is the core of the inferential distance on this issue. Most people simply don't realize that many many many things that might at first glance appear to be a violation of campaign finance laws will never be enforced, and that if it were tried, the laws would be struck down. The core of my position is that the claims against Trump are in this category. It superficially sounds plausible that the events could be captured by campaign finance law, but if you actually had to argue the case, the law, and the Constitution all the way to SCOTUS, it would not work. It is only because they specifically didn't have to actually argue the law and the Constitution on the issue of campaign finance law (especially not in an appeals court or "court of law", rather than a trial court or "court of fact") that it was able to get to this point.
ControlsFreak
2d ago
Depends highly on the content, my familiarity with the subject or the language it's in, whether I'm watching it with my wife and various factors relevant to her, and what the purpose of the video is. For example, if it's English and a subject that I'm familiar enough with that I can process most of the information extremely quickly and am only looking to see if there are some nuggets of new ideas, definitely 2x. Though I am always ready to rewind and slow it down if necessary. An example scenario would be that I'm watching a recording of an academic talk in an area that I know pretty well, but BLAM, he starts banging out some chunk of stuff that I haven't really seen before, I'll go back and go through that section slowly.
Wife is a native French speaker, and I'm kinda learning. We watch a few French language channels together, but a nice compromise is that they are subjects that I otherwise know a lot more about than she does. We literally watch some of those on 0.75x. I can't actually tell if they're "fast" talkers relative to some typical rate, because I'm just not good enough at French to know, but slowing it down doesn't mess with the sound of it too badly, helps give me time to comprehend the words, and she's okay with it, because she's pretty new to the content.
Some videos we watch purely to relax before bedtime. Channels are picked appropriately, and they're a smooth, buttery 1x.
ControlsFreak
2d ago
doing so would not in any sense present a first amendment issue
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?
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.
Express advocacy has reporting requirements.
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.
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?
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 want to repeat that very last thing. Is it criminal to not report it? Because I believe NY law was requiring a crime, not a civil infraction that merely incurs a fee.
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?
Slightly less flippant response: It's kind of amazing, but the Court in Citizens United managed to not talk about reporting requirements at all. Like, they introduce the history of the case and say that CU was challenging the disclaimer, disclosure, and reporting requirements as well, but they literally never talk about the reporting requirements. It just disappears entirely. Almost like they were dodging the issue, so they didn't feel political pressure to falsely say that they were okay, instead perhaps coyly preserving an openness to address the issue later in a follow-on case. Diffusing the hits over time is tried-and-true Court Stuff.
Perhaps more concrete: Surely there are some bounds which contain these requirements. See McIntyre v. Ohio Elections Comm'n, for example. Perhaps the Court has to date avoided addressing the issue in context of campaign finance laws (again, hilariously coincidental that CU magically disappeared any discussion of reporting requirements), but this smells to me like it's just begging for a case. Let's say you and I got together, we conspired, hacked the source code of the universe, but only just a little. 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. Together, our source code hack accomplishes one thing: it gets the FEC to bring an enforcement action against me, and that enforcement action is now in front of the Supreme Court. How do you think it goes? Does McIntyre v. Ohio Elections Comm'n figure into the picture somehow? How so?
(FYI, note very briefly that I currently rent, and do not own, the teeny tiny yard in front of the house that I rent. Passersby may be able to surmise, "Someone who lives there must really like this guy that Ashlael picked," but they wouldn't be able to use any public records to figure out who I am, unlike what would be the case were I required to publicly report it.)
Changing directions a bit, but bringing us back closer to Trump: the good news is that those reporting requirements, whether ultimately constitutional or not, are only attached to things that "expressly advocate" the election/defeat of a clearly identified candidate. But of course, what Trump did was very much not "express advocacy". So now, on top of that other bundle of issues with reporting requirements generally, we're going to have a slew of killer hypos pulling on this thread, too. 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?
EDIT: 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?
ControlsFreak
3d ago
Count me outside of that circle as well. While I did acknowledge that it was not a complete legal nothingburger, I proudly have receipts that I was on Team No Indictment. This Trump case relies on implicitly conjuring up a federal elections charge which simply would not stand against a vigorous defense and Supreme Court precedent if it were to be seriously taken up by a serious court of law (by which I mean as opposed to a trial court).
Then I think this is a good crux that we can focus on. I don't think we have a case on point, because I don't think the FEC is insane enough to bring a case on facts like these. I think they would face serious first amendment issues, especially in light of Citizens United. There, the Court made clear that the only grounds on which expenditure limitations (and, I believe, the corresponding edifice of distinctions that are being made to consider them in-kind contributions and the corresponding reporting requirements) can constitutionally rest are quid pro quo (trading expenditures->contributions for official acts), given the significant first amendment impacts. Even the Stevens dissent would have drawn the line at a more vague sense of corruption of the political process, perhaps most simply represented by his description of "whether objective observers can reasonably believe that elections (and the official acts that follow) are being bought and paid for". This would fail both tests. It does not make sense that Donald Trump is entering into a quid pro quo with Donald Trump in buying a sign for his own lawn with his own money. It does not make sense that Donald Trump is corrupting an election official or the official acts that he takes by buying a sign for his own lawn with his own money.
ControlsFreak
3d ago
Ok, let's walk through a hypo to see why the FEC's guidance documents walk a tightrope between interpreting this in a way that lets them get at serious concerns and using this language in a more direct way that runs the risk of jeopardizing the entire edifice of the statute.
Let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he puts on his own lawn. Is that a "contribution to a candidate"? A "contribution to a campaign"? Reportable? Criminal?
ControlsFreak
3d ago
Candidates can pay for campaign expenditures with personal funds.
Bolded the key part.
minimum dollar amount of $200
Ok, so let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he put on his own lawn. Reportable? Criminal?
the FEC page on day to day operations gives meals as something that can conditionally be a campaign expenditure.
Aye, this again contributes to the claim that there is a distinction between a "campaign expenditure" and things that are not campaign expenditures. For example, Trump can take his campaign staff out to lunch and pay for it all using campaign funds, and this is a campaign expenditure. On the other hand, Trump can take his buddies from the golf course out to lunch and pay for it using his personal funds, and it is not a campaign expenditure... even if he thinks that this lunch has the possibility to in some way increase his chance of winning an election (e.g., he thinks that he will be incredibly charming and that they will be positively influenced to independently support his candidacy).
This is an obvious case where there is the possibility of mixed motives, which has been a huge thorn in the side of most arguments on several Trump-related topics. If Trump takes his golf buddies out to lunch, he may both have a motivation that they're going to like him and that it will increase their chances of doing business with him, so he has personal/business motivations. He may also have motivations that this same positive emotion might inspire them to support his candidacy. It is extremely difficult to tease these apart, which is why most of the rules try to avoid touching on these issues. They try desperately to avoid it (and they never bring such questionable cases, due to risk that SCOTUS will strike down larger swaths of campaign finance law than they would like), because there are obvious legal theory and constitutional issues. Even questions for things like lunches are a bit vague on this, likely precisely for this reason. Therefore, this is why they would have to build a case that the lunch is, indeed, a "campaign expenditure", but this requires facts, context, and argumentation. It's easiest and most clear to just identify the ultimate source of the funds - if it's coming from actual campaign funds, it's reportable. If it's not campaign funds, but a candidate took out all his campaign staff, in the same way that he would normally take them out and use campaign funds, but he used personal funds this time? Really hard case, though I doubt anyone would bring it unless they had a vendetta against the candidate. The candidate takes out his golf buddies, pays with personal funds, and maybe has some mixed motive that it might help his candidacy, too? Highly doubtful.
If Trump paid Daniel for the purpose of influencing the election it's an in-kind campaign contribution from the candidate to the campaign. The campaign has to report it in their FEC filings
I'm already off the train here. I don't think this is true or supportable. Can you find any language to support this claim? Candidates are free to spend their own money, and it is not a campaign expense or contribution. Nor do I believe that there is any statute, guidance, or caselaw that would require this to be reported. EDIT: For example, if Donald Trump took a five dollar bill out of his own pocket, money that has never been given to the campaign, has never touched the campaign books in any way, it is his money from his own personal income, and spent it on a lawn sign that he puts on the lawn in front of his own house, I do not believe that this would trigger any reporting requirements. Do you agree/disagree?
If Cohen would have made this payment independent of the election (ignoring the crimes Cohen committed to get the money) it would be legal.
Agreed.
If Cohen made this payment to influence the election I'm not sure there's any way to do it legally.
Binding Supreme Court precedent says the opposite (unless you have something further that you meant to imply but didn't actually state). For example, I could take money out of my pocket right now and spend it on something that I think would influence the election (e.g., a lawn sign promoting a candidate), and that is absolutely legal.
Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge?
If the lunch was a campaign expenditure
What would make it a campaign expenditure? You need to spell out what the test is. Not an "if", because that is the precise question that I'm requesting an answer to and the crux of the issue.
candidate in-kind contribution
There is no such thing as a candidate in-kind contribution. There can be campaign in-kind contributions (and PAC in-kind contributions for another example), but there is no such thing as a candidate in-kind contribution.
ControlsFreak
3d ago
A payment made on behalf of a candidate counts as a donation to that candidate
No. A payment made on the behalf of a campaign counts as a donation to that campaign. (This would be the case if the campaign reimbursed him from campaign funds.) Similarly, a payment made on behalf of a PAC counts as a donation to that PAC. (Again, this would be the case if a PAC reimbursed him from PAC funds.) This was a payment made on behalf of an individual, in his personal capacity. Please cite any statute or FEC interpretation that regulates this behavior as a criminal matter.
ControlsFreak
3d ago
If Trump had paid Daniels directly, out of either campaign or personal funds, that would likely have been legal. If Cohen made the payment and Trump reimbursed Cohen out of campaign funds that also might have been legal (it converts Cohen's campaign contribution into an operation expense).
Hilarious, especially because this story keeps changing, depending on where we are in the argument. Most people used to say that if Trump reimbursed Cohen out of campaign funds, that would have been illegal use of campaign funds. The FEC says that there is an "irrespective" test, and so if Trump would have wanted to keep Daniels quiet irrespective of the election (quite plausibly), one would even say that it would be illegal for him to pay her from campaign funds. How do you see significant daylight between "Trump pays Daniels directly out of his personal funds," and, "Trump pays Daniels indirectly out of his personal funds," for purposes of campaign finance law? Statutory cites would be ideal, but even an FEC interpretation would be interesting.
Like, surely there are plenty of hypos here where you would agree. Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge? Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house. We have Supreme Court precedent that Trump is allowed to pay for election-related things from his personal funds. The FEC says very little about this, because they basically don't touch expenditures of personal funds by candidates. They have plenty to say about things like extending credit when you're paying it back via campaign funds (or a PAC), because that is directly about the use of campaign funds (or PAC funds). This is about personal funds.
ControlsFreak
3d ago
Nope. They have to decide whether the underlying facts, which are mostly uncontested, comprise a crime. Cohen's case is not involved in any part of that sentence/process. Like, where does it go in there? It doesn't.
Was this meant to be a reply to this comment instead?
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