Jeffrey Miron and Jacob Winter
On April 4, 2023, the Manhattan District Attorney announced the indictment of former President Donald Trump on 34 counts of falsifying business records.
These are misdemeanor charges in New York State, but they upgrade to felonies when the defendant falsified business records to conceal another crime.
The DA, Alvin Bragg, has not been precise in naming the crimes that the allegedly false business record entries were meant to conceal. He will likely argue, however, that the Trump Organization’s reimbursement to Trump’s lawyer, Michael Cohen, for hush money paid to Stormy Daniels, constitutes an illegal corporate contribution to Trump’s 2016 campaign.
In the United States, corporations cannot donate directly to political campaigns. Bragg will likely argue that the reimbursement is a campaign contribution because it was meant to prevent a news story that would damage Trump’s campaign. It’s unclear if that argument will hold up in court.
Resolving all this is thorny, but in Libertarian Land the issue is simple: there is no campaign finance regulation.
Proponents of campaign finance regulation assert that contributions affect a candidates’ electoral chances; that contributions influence the policies candidates support; that this influence is undesirable; and that regulation successfully limit this influence.
Each of these claims is problematic.
In a democracy, candidates cannot support policies that are significantly out of step with a majority of their constituents. Also, it is unclear whether contributions influence positions or certain positions attract contributions. Many positions that attract contributions have substantial support, like environmentalism.
Plus, regulation is not successful at “getting money out of politics.” Even if the law were to prohibit corporations or people from spending money to explicitly support a candidate, they could spend money to support policies that align with certain candidates. If the law banned spending that supports specific policies, that would blatantly violate free speech.
These regulations also reward dishonest candidates who evade enforcement or have the legal know‐how to exploit loopholes at the expense of law‐abiding, less‐resourced candidates.
Private solutions, including independent watchdogs and voter advocacy groups, moderate undesirable influence of contributions to candidates.
Finally, campaign finance regulation, like the laws against business fraud at issue in the Trump case, allow government prosecutors to choose targets based on political pressures (as many have suggested in this case). Whether accurate or not, the appearance of political influence made possible by campaign finance regulation reduces confidence in the criminal justice system.
Donald Trump’s indictment would not reach felony status without campaign finance regulation. Regardless of the merits of the Manhattan DA’s case, the indictment is an opportunity to reflect on the misguided existence of such regulation.