A simple but seldom asked question may prove surprisingly central to the Russia investigation that’s consuming Capitol Hill this week: Did Donald Trump violate the campaign-finance laws?
The case that Trump and his team broke the rules that ban foreign involvement in American elections is “more or less hiding in plain sight,” argues Democratic election lawyer Bob Bauer in a recent analysis. For all the speculation swirling around whether Trump team members met with foreign officials, notes Bauer, Trump’s own public statements may already put him on precarious legal territory.
Campaign-finance laws are explicit that foreign actors may not donate money or any “other thing of value” in connection with American elections, a rule that on its face appears to have been broken. U.S. intelligence officials have already concluded that the Russian government hacked and leaked Democratic National Committee emails to deliberately help Trump. There have also been reports that Russians sought to place social media ads to damage Hillary Clinton.
A key question is whether the Trump campaign provided “substantial assistance” to the Russians in these efforts, says Bauer, which would be illegal. The investigations on Capitol Hill and by special counsel Robert Mueller are sure to examine closely reports that Trump adviser Roger Stone was in touch with Julian Assange, the founder of WikiLeaks, and exchanged messages with Guccifer 2.0, the alleged handle of the Russian hacker who posted the DNC emails. Stone has denied any collusion with the Russians.
But Trump’s own public statements and actions—his invitation to the Russians to release more emails, his statement that he “loved” WikiLeaks, his refusal to denounce Russian interference, his constant references to the leaked emails on the campaign trail—already provide ample evidence to invite serious scrutiny, says Bauer, who was general counsel to the Obama campaign.
“A foreign government is clearly active, the U.S. government has identified this openly, and he is encouraging them, signaling that this is useful to him,” said Bauer in an interview.
It’s not often that campaign finance rules actually seem to matter much. After all, the Supreme Court has thrown out all but a few core restrictions, the Federal Election Commission has essentially stopped enforcing the laws, and most political players appear to ignore the rules in any case. But foreign money, it turns out, stands in a class by itself, posing special and widely recognized threats to American self-governance and national security.
“You get into the ability of a foreign power to effectively reach into the political process and hijack it for its own purposes, distorting the choices Americans would make for themselves,” notes Bauer.
The Framers treated the risk of foreign corruption as one of their greatest fears, according to Faulkner University law professor Matt A. Vega, apprehensive that the young nation’s relatively small size would make it vulnerable to European powers. That explains the Constitution’s Emoluments Clause, which bans office holders from accepting anything of value from foreign governments, and which critics say Trump has violated by failing to divest from his foreign business holdings.
Congress explicitly banned foreign contributions to candidates in 1966, and has strengthened the ban twice since then—once following the Watergate scandal, and again in the 1990s, after Chinese interests made soft money contributions to the DNC to help reelect then-President Bill Clinton.
The ban now makes it illegal to solicit foreign contributions—a prohibition Trump flagrantly violated during last year’s presidential campaign. The Trump campaign repeatedly solicited money from foreign sources, including members of parliament in the United Kingdom and Australia—even after two watchdog groups complained first to the FEC and then to the Justice Department.
The Russia scandal is unfolding amid growing concern about the role of foreign money in U.S. elections across the board. The Supreme Court’s 2010 Citizens United v. FEC ruling has made it easier for big-spending nonprofits, which operate outside the disclosure rules, to influence elections—creating dangerous avenues for secret foreign money, say Democrats on Capitol Hill.
FEC Commissioner Ellen Weintraub, a Democrat, has urged the FEC to launch a rulemaking process to ensure that foreign money doesn’t flow into elections through such undisclosed channels. The commission has yet to take action, but last week Senator Amy Klobuchar, of Minnesota, and 16 other Senate Democrats, wrote the FEC to urge the agency to follow through.
Weintraub is also urging her FEC colleagues to investigate reports that Russian agents paid for Facebook ads intended to damage Hillary Clinton during the campaign. Two watchdog groups—Rootstrikers and Free Speech for People—have twice called on the FEC to investigate evidence of Russian meddling in the campaign, and this week the two groups launched a petition to gin up grassroots pressure on the FEC to investigate.
There’s some evidence that the usually stalemated FEC might actually take allegations of foreign interference more seriously than some of the many other high-profile complaints the agency has ignored. Historically, foreign election interference has worried Republicans as much as Democrats. The Supreme Court, too, has affirmed the unique threat posed by foreign interference. In a 2011 case, Bluman v. FEC, the Court upheld a lower court’s finding that the ban on foreign political involvement is essential to democratic self-governance and “to preserve the basic conception of a political community.”
“What the Russians have done here, and what this statute [banning foreign intervention] deals with, is a problem that is broader and deeper than ad hoc corruption of a government decision,” says Fred Wertheimer, president of Democracy 21, which co-filed the complaints about Trump’s foreign solicitations. “This goes to the corruption of our democracy. So the stakes are much higher here.”