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Rep. Duncan Hunter (R-CA 50th) is facing possible criminal liability for a colorful litany of alleged misdeeds, such as paying for five mistresses with campaign money. But among the more unique allegations leveled against Rep. Hunter includes using campaign funds to fly his pet rabbit Eggburt on a vacation. Why are these crimes? Because our nation’s campaign finance laws limit who can pay for what.
This is a lesson that even the President still needs to learn.
Here’s some campaign finance history: Many American campaign finance laws were inspired by political scandals. Perhaps most infamously, the money in politics shenanigans in President Nixon’s 1972 re-election campaign included using illegal campaign funds to finance an illegal burglary of the DNC’s headquarters in the Watergate building. Revelations about Watergate led to the enactment of the Federal Election Campaign Act (FECA), which still governs campaigns. A long forgotten scandal about insurance companies secretly funding the Republican Party in 1904 led to the Tillman Act, which bans corporate contributions to campaigns. Fear of Nazis influencing American elections during World War II led to a ban on foreigners’ spending in U.S. elections.
In campaign finance law, it matters a great deal which way the money flows. In many instances, money flowing one way is perfectly legal. But reverse the direction, and you’ll have investigators in FBI flak jackets at your door asking questions about criminal violations.
(The laws I’ve run through here are all federal. But it’s worth remembering that each of the 50 states have their own campaign finance laws. Some states are more strict and others are more permissive.)
Back to Rep. Hunter and his jet-setting pet rabbit Eggburt. Money in federal campaigns is meant to be used for — drum roll please — federal campaigns. There are rules against using campaign funds for personal use. Just ask ex-Congressman Jesse Jackson Jr., who went to prison for using campaign funds to buy Michael Jackson memorabilia.
And remember, which way the money flows is important. While it would be perfectly legal for Rep. Duncan Hunter to give his campaign an unlimited amount of money pursuant to a Supreme Court case called Buckley v. Valeo, Rep. Hunter was not allowed to dip his hand into his campaign’s till and treat it like his personal piggy bank. Perhaps because of government’s allegations about Rep. Hunter’s five mistresses, Rep. Hunter’s wife Margaret Hunter just flipped, so watch this space to see whether federal prosecutors can convict him for his alleged illegal personal use of over $200,000 in campaign funds.
Many have heard of Citizens United v. FEC, which allows corporations to spend money on political ads. What’s less known is that corporations are still banned under the Tillman Act from giving money to federal candidates directly. But when it comes to corporations in politics, it (again) makes a big legal difference who is paying whom. For instance, the Trump Campaign is allowed to rent locations from the Trump Organization for rallies at fair market rates. But the Trump Organization’s corporate arms cannot give money or things of value to the Trump Campaign under the 1907 Tillman Act. Even though this statute is over a hundred years old, it is still good law. In fact, the Supreme Court just turned down the opportunity to strike the Tillman Act in a recent case in 2019.
And finally the direction of money flows is important when it comes to foreign spending in U.S. elections. The law bans American political campaigns from accepting or soliciting a thing of value or money from a foreign national. But the money can go the other way. This prohibition, for instance, does not stop an American campaign from hiring a foreign national, so long as the foreign national is not given decision-making control over a campaign or PAC.
Thus, there is a huge difference between a law firm paying ex-MI6 British subject Christopher Steele to do research into an American presidential candidate, which is permitted under U.S. law, and accepting money from a foreign national, which is not allowed. A campaign paying money to a foreign national is kosher. But any offers of things of value or money from a foreign national to an American political campaign are banned.
Trump should know the difference, since Trump’s 2016 campaign hired a British firm called Cambridge Analytica, which is fine (so long as the foreign nationals working there didn’t take over control of the campaign). Meanwhile, any offers of help from a foreign government to the same campaign could lead to a multiple-year federal investigation by a special prosecutor.
So to sum up: rich individuals can self-finance a political campaign to their heart’s content; federal candidates can pay corporations for campaign expenses like buying bunting; and Americans campaigns can hire foreign nationals to do limited tasks. But what is not allowed includes: (1) corporations’ dumping money into federal campaigns, (2) foreigners’ dumping money into any American political campaign, and (3) paying for a Congressman’s pet rabbit to fly with him on his campaign’s dime. Oh and bonus (4) paying for mistresses with campaign money is also a big no-no.
Word to the wise: If you want bunny Eggburt along for the ride, pay for it yourself out of pocket. The same goes for paramours.
Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Brennan Center Fellow and the author of the book “Political Brands.”
