This week, the Federal Election Commission notified Common Cause that it has fined the tabloid publisher American Media Inc. for a payment made to Karen McDougal shortly before the 2016 election. McDougal has maintained she had an affair with former President Donald J. Trump, which he denies.
Common Cause, where I lead policy and litigation, filed a 2018 complaint arguing the payment was "for the purpose of influencing the 2016 presidential general election."
The $187,500 fine was for knowingly and willfully violating federal campaign finance law with the $150,000 hush payment — what the FEC said was an illegal in-kind contribution to the Trump campaign. Common Cause, where I lead policy and litigation, filed a 2018 complaint arguing the payment was "for the purpose of influencing the 2016 presidential general election." This accountability is a win for democracy. But the news is bittersweet, because the FEC also let Trump off the hook for his role directing this illegal scheme.
Common Cause has always maintained that Trump cheated en route to winning the 2016 election by violating campaign finance laws. Michael Cohen, Trump's former lawyer and fixer, was sentenced in 2018 for, in part, orchestrating payments to help to cover up Trump’s alleged affairs. Now the other big player, AMI, has been fined. But to date there’s been no accountability for Trump. Here’s the backstory on Trump’s alleged crimes and why they matter.
In January 2018, Wall Street Journal reporters linked Cohen to an October 2016 payment of $130,000 to Stormy Daniels to enter a “nondisclosure agreement” regarding her relationship with Trump. This deal was made just before the general election and days after publication of the infamous “Access Hollywood” videotape in which Trump bragged about assaulting women. Common Cause filed complaints with the FEC and Department of Justice arguing that this payment was an illegal in-kind contribution to Trump and his campaign.
New York Times reporters then connected Cohen to a similar $150,000 payment from AMI to McDougal in August 2016. Common Cause immediately filed FEC and DOJ complaints arguing that this, too, was an illegal in-kind contribution to Trump and his campaign.
Federal law defines “contribution” as a gift of money or anything of value made for the purpose of influencing an election. Corporations like AMI are prohibited from making contributions to federal candidates. Contributions from individuals were limited to $2,700 in the 2016 election. The Supreme Court has upheld these contribution limits as important means to preventing corruption or the appearance of corruption of candidates and officeholders.
Cohen was convicted of multiple crimes, including making an illegally large contribution ($130,000 to Daniels) and causing AMI to make an illegal corporate contribution ($150,000 to McDougal) to the Trump campaign, and was sentenced to three years in prison. Cohen told the presiding judge under oath that the payments to Daniels and McDougal were made “in coordination with and at the direction of a candidate for federal office,” a clear reference to Trump, an unindicted co-conspirator in Cohen’s crimes.
This week’s FEC notice that it had fined AMI for violating federal law wasn’t surprising, considering that AMI admitted its violation in a 2018 nonprosecution agreement with the DOJ. Disappointing and confounding, however, was notice that there “were an insufficient number of votes” to find that Trump and his campaign had violated laws with the McDougal hush payment. At the FEC, it takes at least four votes — among the six commissioners — to find campaign finance violations. We don’t yet know which commissioners refused to hold Trump accountable for his actions. Documents providing this information will be made public within 30 days. But based on recent past FEC action, I’m willing to speculate.
Less than a month ago, the FEC announced it had ignored the recommendation of its career staff attorneys and dismissed Common Cause’s complaint against Trump for what those FEC lawyers said was the illegal Daniels hush payment.
Republican commissioners Sean Cooksey and James “Trey” Trainor voted against the staff recommendation, noting in their “statement of reasons” that Cohen had already been punished. “Thus, [they] concluded that pursuing these matters further was not the best use of agency resources.”
This makes no sense. Democratic chair Shana Broussard and commissioner Ellen Weintraub voted in favor of the staff recommendation, noting that the commission’s interests "in seeing the law enforced with respect to Trump, the Committee, and the Trump Organization have in no way been vindicated.”
It seems likely these Republican commissioners once again blocked accountability for Trump in the McDougal matter. And once again the FEC has shown itself incapable of fully enforcing the campaign finance laws passed by Congress.
These laws are essential to keeping our democracy off the auction block. Trump’s allegedly illegal activities in winning the presidency sets a horrible precedent if left unpunished. The last hope for Trump accountability is the DOJ, which has until August to charge him for the McDougal payment.
And it is imperative that the Senate follow the House’s lead and pass the For the People Act, which includes provisions to significantly restructure the FEC so it can actually do its job. Our nation’s campaign finance laws play a vital role maintaining public confidence in our elections and our politicians. To have a real democracy, they must be enforced.