Last week, former acting U.S. solicitor general Neal Katyal said the hush-money payments allegedly made on President Trump’s behalf could be the biggest campaign finance violation in U.S. history. They could be “the most significant campaign contributions ever,” he told CNN.
This is news to Trump and his backers, who’ve downplayed the significance of the breach. They have compared it with the $375,000 in penalties imposed on Barack Obama’s campaign or the violation John Edwards was accused of but never convicted of when it came to the $1 million in payments he allegedly made to his mistress and the mother of his child, Rielle Hunter.
So who’s closer to the truth? Is this really the biggest campaign finance violation ever?
By dollar amount, the answer is no. Trump’s team is accused of paying $130,000 to Stormy Daniels and $150,000 to Karen McDougal. Freddie Mac in 2006 was ordered to pay a $3.8 million fine for unlawfully using corporate resources to raise $1.7 million for federal candidates. The penalty remains the largest in the history of the Federal Election Commission.
At the state level, the Grocery Manufacturers Association was penalized $6 million — the largest campaign finance-related fine in U.S. history — by Washington state over its efforts to beat back a 2013 ballot initiative on “genetically modified organism” labeling. (That fine was raised for a time to $18 million and is still the subject of legal battles). In California, a $1 million fine was levied against groups allied with the Koch brothers that were engaged in trying to defeat ballot initiatives.
The Obama campaign’s $375,000 fine was for campaign reporting violations and was one of the largest fines for a presidential campaign in U.S. history. (It’s worth noting, though, that the size partially reflected his unprecedented $1 billion campaign; proportionally, it was in line with others that came before it.)
“The FEC has found violations significantly larger in amount than the two Trump hush payments, and has a few more complaints still pending that allege much larger amounts in violation,” said Paul Ryan, an election law expert at Common Cause.
But those were civil penalties, not criminal matters. And that’s a key difference when it comes to the Daniels and McDougal cases, both of which have been established by federal prosecutors in the Southern District of New York as criminal efforts to violate campaign finance law.
The government’s recent sentencing memo in Michael Cohen’s case laid out very serious sentences in other cases involving criminal violations of campaign law:
- Former congressman Steve Stockman (R-Tex.) was sentenced to 10 years in prison last month in a case that involved both excess contributions and other financial crimes.
- Republican consultant Tyler Harber was sentenced to two years for illegal coordination and lying to the FBI in 2015.
- That same year, former Connecticut governor John Rowland (R) got 30 months for illegal contributions and a related coverup.
- An aide to former Connecticut state House speaker Christopher Donovan (D), Robert Braddock Jr., got 38 months in 2013 for accepting fraudulent contributions for Donovan’s congressional campaign.
- The brother of a major donor to Sen. Robert Menendez (D-N.J.), Joseph Bigica, in 2012 got five years for illegal contributions to Menendez made on his brother’s behalf.
Not all of these were solely for campaign finance issues. But those violations were at the heart of each sentence, and they led to years in prison.
Cohen will serve three years in prison. But the campaign finance violations accounted for just two of the nine counts to which he pleaded guilty, and his other crimes were serious and unrelated. In addition, he got some leniency thanks to his cooperation with the government. But if you carve out the portion of his sentence that was for the campaign finance violations, it would probably come up short of most of the above cases.
Which brings us to the main argument for this being the biggest campaign finance violation in U.S. history: its impact.
I’ve touched on this before, when I argued that it’s quite plausible that this particular violation changed the result of the 2016 election and, potentially, by extension, U.S. history:
A secret hush-money payment ... carries significantly more potential effect. This was a story that could have cost Trump lots of votes — possibly even enough to tip the scales of what was a very closely decided election. Trump seemed to don his own version of political Teflon, yes, and his many controversies didn’t prevent him from being elected president. But imagine if voters had known before Election Day that Trump paid off a porn star who alleged an affair? Imagine if they knew he had allegedly had this affair while his wife was home with their young son?
It’s impossible to play out that hypothetical, just like it’s impossible to rerun a 2016 campaign in which Russia didn’t interfere to help Trump. But Trump won the three decisive states in 2016 — Michigan, Pennsylvania and Wisconsin — each by less than one point. If a story like the Daniels story even shifted the national electorate one percentage point across the country, Trump loses the presidency. If it affected 80,000 people across these three states, we have a different outcome.
And that’s really the point: Regardless of the egregiousness of the offense (which may not eclipse the others above), the stakes here were incomparable. This was not beating back a GMO labeling initiative or a tax hike. It wasn’t trying to elect one of 435 members of the U.S. House or even a governor or senator.
This was something that could have reshaped the election of a U.S. president, and it was deliberately hidden, then covered up by the president and his White House staff. The closeness of the result, too, means that the buried information might actually have mattered to the election outcome.
This is also a U.S. president who has shattered numerous political norms, reshuffled the priorities of the two major political parties and cast aside major U.S. foreign policy alliances. He is the subject of multiple investigations that could tear the country apart. There’s a distinct possibility that none of this would have happened if not for these campaign finance violations, which makes them hugely significant — very plausibly the most significant ever.
I asked former FEC general counsel Larry Noble where he thinks this one ranks in the course of U.S. history, and he said it was up there. There’s something else, too. “I also think there’s a campaign finance element to Russia’s involvement in our election, and it also involves the manipulation of information that reached the electorate,” he said. “I think that may be a more serious violation.”
So there’s another potential campaign finance violation that benefited Trump that could be the most significant in U.S. history.