Campaign-finance law may be one of the few areas of the law where ignorance is bliss. In Special Counsel Robert Mueller’s February 2018 indictment of Russian operatives, he stated that Russians talked to unwitting individuals associated with Donald Trump’s campaign. The open question over the past year was whether there was any intentional conspiracy between the Trump campaign and Russians—for instance, at a fateful meeting at Trump Tower between Paul Manafort, Jared Kushner, and Donald Trump Jr.; Natalia Veselnitskaya, a Kremlin-connected lawyer; and others. The release of Mueller’s report highlights one reason the members of the Trump campaign were never charged: The special counsel’s office could not establish that they had knowingly aided and abetted Russians in violating campaign-finance rules meant to fence out foreign involvement in American elections.
But there was another reason Mueller might have shied away from prosecuting Kushner and Trump Jr. for a campaign-finance conspiracy: Not only would the special counsel have had the epic headache of dealing with right-wing media going apoplectic about an attack on the Trump family, but he also would have faced the real possibility that a hostile Supreme Court could rule unconstitutional whichever campaign-finance law he used to charge them.
The Mueller investigation proceeded against a backdrop of a conservative Supreme Court’s systematic deregulation of campaign finance from 2006 to the present. The purpose of campaign-finance regulations is to discourage corruption and improper interference in the political system by regulating which entities can contribute to campaigns, and in what form. In the past 13 years, though, Chief Justice John Roberts’s Court has struck down key campaign-finance laws—from a limit on corporate independent spending in Citizens United v. Federal Election Commission to limits on aggregate contributions by wealthy individuals in McCutcheon v. FEC. These decisions were grounded in five justices’ view that political spending is a form of expression protected by the First Amendment.
The unredacted portion of the Mueller report detailed many actions by the Trump 2016 campaign that walked right up to the legal line of potential campaign-finance crimes. In particular, campaign-finance law contains a long-standing ban—upheld by the Roberts Court in a case called Bluman v. FEC—on contributions of money or things of value by foreign nationals. An American who conspired with a foreign national to facilitate such transfers could also be ensnared by this aspect of the federal election law. (This is part of the law that Sam Patten violated by helping to funnel $50,000 in Ukrainian money into the Trump inaugural.)
A key question in the Mueller investigation was whether Trump Jr. and others in the campaign had illegally abetted the Russian operatives who had promised “dirt on Hillary Clinton”—presumably stolen emails from the Democratic National Committee. Had the Russians shown up at Trump Tower with cash for its namesake’s 2016 campaign, that clearly would have violated the foreign ban.
The crux of the issue under campaign-finance law is whether stolen emails constitute “a thing of value” for the purpose of the foreign-donor prohibition. Since the Trump Tower meeting was revealed in 2017, this has been a subject of active debate among campaign-finance scholars. Former White House Counsel Bob Bauer has argued that “dirt on Clinton,” otherwise known as opposition research, could very well be a thing of value for campaign-finance-law purposes. Ex–FEC Commissioner Bradley Smith has argued to the contrary that it could not. On page 187, the Mueller report noted that no court case has yet applied the foreign-donor ban to opposition research, and that being the first to apply the law this way may raise First Amendment questions.
Even under Bauer’s standard, it’s easy to understand the special counsel’s choice not to charge Trump Jr. and Kushner, who appeared to be sufficiently witless to avoid criminal liability. But Mueller pulled some punches that he didn’t have to—especially in the choice not to charge Manafort with campaign-finance violations. Manafort has been around the block. He worked as a lobbyist and lawyer in political campaigns in the United States and around the world for decades. Not taking things from foreigners is Campaigning 101. If anyone should have known that, it should have been Manafort. But even he wasn’t charged with violating campaign-finance laws by the special counsel.
It’s possible that, in contrast with the prosecutors in the Southern District of New York who pursued two campaign-finance charges against the president’s ex-lawyer Michael Cohen, Mueller was not prepared to die on the campaign-finance hill. It’s understandable why he would avoid this First Amendment fight. Mueller had to keep multiple cases going on multiple fronts—including a suit from the Roger Stone associate Andrew Miller that challenged Mueller’s own appointment, as well as the still unknown mystery case of a foreign company owned by a foreign nation that went to the Supreme Court.
The nation’s remaining campaign-finance laws have a host of specific vulnerabilities that the Russians exploited in 2016. For example, many of the Russian ads on social media that were intended to disrupt the presidential election in 2016 fell into a nearly unregulated domain.
Foreign interference in a U.S. election already reappeared in the 2018 election cycle. If Congress does nothing else to shore up federal campaign-finance laws, it should close both of the foreign loopholes that the Mueller report exposed. Congress should make clear that online political advertisements that mention a federal candidate cannot be purchased by a foreigner. Moreover, the federal statute that bans foreign nationals from participating in American elections should be clarified to cover any stolen item as well as all opposition research and polling. Otherwise, future American confederates could plead ignorance—and get away with helping foreigners interfere with the 2020 election, too.