Last November, I blogged some questions about the future of the Commission of Presidential Debates. And my instincts were right. We learned today that the Biden and Trump campaigns have privately back-channeled with one another about an alternative debate format. More at the New York Times. There are lots of political reasons for each campaign to do this–both have grievances with the CPD and apparently have the leverage to jettison it (aging candidates looking to have greater control over timing and conditions)–and have agreed to a debate hosted by CNN on terms they prefer.

To get around campaign finance restrictions, CNN has listed “pre-established objective” criteria to participate in the debate. And here’s where things get complicated.

I’ve been critical of the NY district attorney seeking to turn the Trump falsifying business records charges into felony charges in the hush money case now on trial in NY. To turn the misdemeanors into felonies, Trump had to be falsifying the business records to further or conceal “other crime.” The three potential baskets of other crimes are (1) violations of the federal campaign finance law (paying campaign expenses with corporate funds, making it an impermissible corporate campaign contribution, failing to disclose the payments, and lying about the payments as legal expenses); (2) violations of a state election law against influencing an election by unlawful means; and (3) violations of state tax law.

Among other things I noted:

Trump also may have serious grounds for appeal in the New York case. It is far from clear that appellate courts would treat the hush money payments as legitimate campaign expenses that needed to be reported, as opposed to personal expenses. And it is uncertain that failing to report a campaign expenditure required by federal law can be a violation of New York state election law against promoting “the election of any person to a public office by unlawful means.” These issues may well have to be sorted out by higher courts.

The trial court rejected these arguments in an order before trial, but I expect they will be back on appeal. I also am uncertain if the trial court will require proof to commit or conceal the other crime beyond a reasonable doubt, which seems like it should be required. And I’ve written about my concern about the apparently novel use of the state election law to go after Trump. If the only unlawful means is a federal campaign finance violation, it’s not clear how that could could as “unlawful means” under state law. The state court inexplicably called this a law against “voter fraud and ballot theft” which don’t seem implicated in this case.

So those arguments have a chance on appeal. Aside from those, Steven Calabresi argues that Trump has a First Amendment right to make hush money payments without disclosure, adding: “All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.”

Let’s put aside the state tax law (and maybe the state election law) and focus on the FECA violation. Trump under the FECA theory could have been charged with causing illegal corporate contributions to the campaign and with violating federal campaign finance disclosure laws. For Calabresi to be right, there would have to be a First Amendment right of candidates not to disclose their campaign expenses truthfully. I don’t think even most opponents of disclosure of contributions would find a First Amendment right of candidates to spend money in campaigns without disclosing them. Such payments help deter corruption, inform voters, and help enforce other campaign finance laws. And the Supreme Court in the 2004 case of FEC v. Beaumont has upheld the ban going back to 1910 on direct corporate contributions to candidates. Without such a ban, someone could simply evade individual contribution limits by creating an unlimited number of corporations. The Supreme Court has repeatedly refused to reconsider the Beaumont case even though other aspects of its reasoning have been undermined by subsequent rulings.

In short, Donald Trump may have some potent argument if he’s convicted and loses on appeal, but the First Amendment is not likely one of them.

Ciara Torres Spelliscy at Law and Crime.

Quite the lineup.

You can watch William Brangham’s report here, also featuring Jerry Goldfeder and Jessica Roth:

Politico:

Super PACs keep pushing the boundaries of campaign finance law this cycle.

They’re using novel financial arrangements, like taking “bridge funding” in the form of undisclosed de facto loans from major donors or receiving ad revenue from a candidate’s podcast. They’re also continuing to take advantage of long standing loopholes in anti-coordination guidelines.

The willingness to push the boundaries suggests that U.S. politics has entered the Wild West campaign financing system that many observers predicted would come in the wake of the court’s weakening campaign finance laws.

It comes as super PACs are taking a more prominent role in campaigning. Total spending on independent expenditures so far this cycle is nearly 2.5 times what it was at this point in 2020. And because candidates are having more and more trouble with small-dollar fundraising, super PAC money could be even more important as the cycle continues.

“As long as super PACs remain relatively under regulated in the way that they have been, the consultants who work for them and for various campaigns are going to continue trying to push the envelope using them in creative ways,” said Saurav Ghosh, director for federal campaign finance reform at the nonprofit Campaign Legal Center. “Because there seems to be very little risk in pushing against the supposed legal limits.”

Ciara Torres-Spelliscy at Law & Crime.

Gabriel Foy-Sutherland and Saurav Ghosh have written this article for ELJ. Here is the abstract:

This article examines the campaign strategy known as “redboxing.” Redboxing refers to efforts by candidates and parties to bypass laws prohibiting them from coordinating campaign advertising with outside spending groups such as super PACs. This coordination takes place in plain sight—on official campaign websites and party “microsites”—with campaigns asking outside groups to fund specific campaign messages that target particular groups of voters on desired media channels. The instructions contained in a redbox typically employ coded or technical language intended to guide the resulting “independent” expenditures, and are often presented in a distinctive, red-bordered text box designed to be easily identifiable by super PAC operatives. Overall, we find that campaigns use redboxing for two purposes: to engage an allied outside group to amplify the campaign’s primary message to voters, or to delegate a given message to an allied group, often a negative or inflammatory attack on a political opponent. Complementing our legal analysis of this practice, we assess the prevalence of redboxing in the American political system, as well as the relationship between redboxing and independent expenditures in congressional races. Drawing on the first comprehensive dataset of redboxes in a single electoral cycle, we find that this strategy is far more widespread than previously understood. Over two hundred candidates for federal office employed redboxing during the 2022 electoral cycle, and these same candidates frequently benefitted from super PAC spending that was hundreds of times greater than candidates who did not redbox. We conclude by providing recommendations for legal reforms to bring redboxing under control, highlighting recent reform initiatives adopted in Philadelphia and Allegheny County, PA, to outline a workable rule that prohibits redboxing while not infringing on genuine, vital political speech.