Breitbart, of course, is the pro-Trump conservative news site whose chairman, Steve Bannon, also serves as chief executive of the Trump campaign.
“If the Trump campaign wanted her there, and Breitbart, a corporation, paid for the ticket to assist the Trump campaign, that would be an illegal in-kind corporate contribution,” said Rick Hasen, an expert in campaign finance law at the University of California at Irvine. “But we need to know more facts before we know if that is the case.”
The Trump campaign quickly disputed Broaddrick's account of her travel — ironic, since the premise of her appearance in St. Louis was that people should believe what she says. Breitbart initially did not respond to a Fix inquiry about travel expenses for Broaddrick but said Monday evening that it did not pay her tab. Broaddrick also recanted.
Corporations are prohibited from making direct contributions of money or services to political campaigns. (The Supreme Court decision in Citizens United removed limits on outside spending only.)
Media companies enjoy a broad exemption from the laws governing corporate donations. For example, the Federal Election Commission does not consider a newspaper's endorsement to be an in-kind contribution to the candidate it supports, even though its value is arguably equivalent to that of an advertisement, which the candidate would otherwise have to purchase. An endorsement is protected because the FEC deems it part of a newspaper's “normal press function.”
That term — “normal press function” — is a bit squishy, making its application in other situations unclear. When Sean Hannity used his radio program's email newsletter to solicit contributions to a Republican congressional candidate in 2010, for instance, the FEC was divided over whether Hannity should be covered by the media exemption. (A majority would have been required to open a formal investigation, so the case was dismissed.)
Breitbart on Sunday published an interview with Broaddrick and two other women, Paula Jones, who alleges that Bill Clinton propositioned her and exposed himself in 1991, and Kathleen Willey, who claims Clinton groped her in 1993. The interview took place in Washington, D.C., some time before all three women traveled to St. Louis to attend the debate and a Trump campaign event. The event was styled like a news conference — or at least, a photo op designed to look like a news conference — and streamed live on Facebook.
Larry Noble, general counsel at the Campaign Legal Center in Washington, said that if Breitbart were to have paid for Broaddrick's travel, “they might argue it was part of some deal where they were putting on the event as part of a story, and they were in control. But that doesn't seem to fit the facts. I think paying for someone to travel to participate in a campaign event falls outside the media exemption.”
Noble added, however, that “there is little likelihood the FEC would find four votes to do anything about it.” The six-member commission is composed of three Republicans and three Democrats, meaning at least one Republican would have to vote to investigate Breitbart.
Dan Petalas, the FEC's acting general counsel from August 2015 until last month, agreed that paying for Broaddrick's travel “could exceed the scope of the legitimate press function, if it was a campaign event, not a press event, and thus a contribution if the campaign wanted her there.”
“It really depends on the facts,” Petalas added.
Rudolph W. Giuliani, who represented the Trump campaign in debate negotiations, said the campaign originally planned to seat the women in Trump's family box at the debate before the Commission on Presidential Debates nixed the idea.
“We had it all set,” Giuliani said. “We wanted to have them shake hands with Bill, to see if Bill would shake hands with them.”