Is Kanye West Breaking the Law By Coordinating with the Trump Campaign While Running for President? Perhaps

I’ve been getting a lot of questions about whether Kanye West, who is running for President and getting on the ballots in at least a few states, is somehow breaking campaign finance law by doing so given the possibility that he is running for office, at least in part, to help President Trump’s reelection (by potentially siphoning votes away from Biden, though that’s far from clear) and given that he has reportedly been speaking “almost daily” with the President’s son-in-law Jared Kushner. Kushner is one of the key people running Trump’s reelection campaign.

West’s motivations alone in running for office cannot be the basis for a campaign finance violation. Third party candidates run for office for all sorts of reasons, and there’s nothing illegal about running for office while secretly (or openly) hoping your run will help another candidate.

The real issue is one of potential illegal coordination. A person can contribute up to $2,800 to a presidential campaign (and spend unlimited sums independent of that candidate to support that candidate’s run). When someone spends money supporting a candidate but does so in coordination with a candidate for office, that counts as a contribution and is subject to the $2,800 limit. West surely is spending more than $2,800 on his campaign. If he’s doing so in coordination with the Trump campaign to help Trump win, that could count as an excessive contribution to the campaign and be illegal.

But this is a really odd situation, and I cannot think of a case in which a candidate has been found to make an excessive contribution to another candidate by coordinating a spoiler run for office. I’m not sure how authorities would treat such a case, which would get into some difficult questions of motive.

The closest case I can think of on point is United States v. Goland, 959 F.2d 1449 (9th Cir. 1992). (Disclosure: I was a clerk to the author of this Ninth Circuit opinion, Judge David Thompson, when Goland was decided.) Goland involved a 1986 U.S. Senate race in California between the incumbent Alan Cranston (a Democrat) and his Republican opponent, Ed Zschau. Michael Goland was a Cranston supporter because of Cranston’s pro-Israel views. Goland spent $120,000 producing commercials supporting a right-wing, anti-Israel third party candidate, Ed Vallen with Vallen’s cooperation (Goland hid his identity and worked through a company because he thought Vallen would have rejected his help). Goland said he spent the money supporting Vallen in the hopes of siphoning votes away from Zschau. Cranston went on to narrowly win the election of Zschau.

At the time of the campaign, Goland could have given (or spent in coordination with a candidate) no more than $1,000 to any candidate for office, but could spend independently as much as he wanted. He claimed that the $120,000 he spent in coordination with Vallen was not an illegal excessive campaign contribution to Vallen because he was spending his money to support Cranston. The Ninth Circuit rejected the argument:

Goland asserts that his contributions were “independent expenditures” because he did not directly contribute to Vallen’s campaign and because he was secretly supporting Cranston’s reelection. Goland’s arguments lack merit.

Goland was charged with contributing to the Vallen campaign. He worked through his agent, Barnes, to fund and arrange the Vallen commercials. The independent expenditures exception to contribution limits does not apply to Goland because: (1) agents of Vallen and Goland were acting in concert; and (2) Vallen cooperated with Goland by accepting the money and performing the commercial. Goland intended to contribute to Vallen’s campaign, and it is immaterial to conviction under section 441a(a)(1)(A) that he did so in support of Cranston.

Goland stands for the proposition that spending supporting a candidate for office done in cooperation with a candidate (or candidate’s committee) counts as a coordinated contribution subject to the contribution limits, and that secret motivations to help another candidate do not matter. The West situation is somewhat different, in that West is spending money on his own campaign allegedly in coordination with another campaign to help that other campaign. Perhaps this is close enough that the conduct is illegal. I’m not sure and perhaps there are other precedents on point I’m not aware of.

There’s one other wrinkle, an issue I’ve spent a lot of time on in discussing the Trump Tower meetings between Donald Trump Jr. and Russian operatives during the 2016 campaign: for such conduct to be criminal, one must act wilfully, knowing one is violating campaign finance laws. We don’t know much about West’s knowledge of campaign laws–most lay people know very little about such laws, but good candidates get advice from good campaign lawyers–but according to his spouse he is suffering from mental illness, which could well be relevant to his state of mind. Hard to know what his state of mind is from the outside. (Whether Kushner and the Trump campaign could also be found to have engaged in illegal activity seems easier given that this campaign has a large legal staff.)

Finally, nothing is likely to happen to West in the near term that would stop his candidacy on legal grounds. An FEC complaint will languish for years, and I hardly expect DOJ headed by Bill Barr (who has done everything to help President Trump’s political aims) to come out and go after West in real time.

UPDATE: As Paul Ryan notes, to the extent we are talking about contributions between campaign committees, the amount at issue is $2,000, not $2,800.

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