Russia, Trump campaign colluded legally, just like PACs do regularly

Special counsel Robert Mueller’s report evidently failed to find sufficient evidence that President Donald Trump or his campaign illegally conspired with Russian agents in the 2016 election. However, to understand political reality we must place the unusual Trump-Russian relationship in the financial context of usual presidential campaigns.

The U.S. Supreme Court has recast – some would say emasculated – post-Watergate reforms starting with Buckley v. Valeo (424 U.S. 1 [1976]). The court created a two-tiered system of permissible regulation of campaign finance. Contributions directly to campaign organizations controlled by the candidate can be subject to relatively severe restrictions – e.g., limits on how much can be contributed – because there is a high chance of corruption or the appearance of corruption in that situation. The court maintains that less severe restrictions are permitted if a campaign organization – a PAC – is independent of the candidate, because there is less chance of corruption.

This independence is a fiction. Media purchases and campaign ads are available, and the candidate can publicly acknowledge strategic information. Independent PACs easily tailor their efforts to match the publicly known efforts of the candidate. Public statements can help guide the efforts of independent PACs. For example, the candidate could say, “We are putting maximum effort into Florida and cannot contribute more to Pennsylvania.” Message to independent PACs: put money into Pennsylvania. Or the candidate can announce, “We think we will make inroads into the opposition party’s support among white, working class voters.” Message to independent PACs: target those voters. Suppose the candidate said: “If somebody has those missing emails of my opponent, I wish they would release them.” Message to an independent PAC: find and release those emails.

The judicial myth of independence does, however, have a pernicious effect. Independent PACs can run scurrilous, negative ads against an opponent. If there is blowback, the candidate has plausible deniability, because he or she cannot legally direct the efforts of an independent PAC.

It is illegal for the candidate or his or her organization to communicate directly with independent PACs. Coordinating by burner phones, secret email accounts, or midnight meetings in abandoned car parks would be illegal. But this would also be incredibly stupid. The independent PAC can achieve all necessary coordination by closely monitoring the candidate’s campaign.

What does this tell us of the Trump-Russia connection before and during the 2016 election? Russian entities and individuals, some with ties to President Vladimir Putin, interfered in the campaign with appeals that neatly tied in with Trump rhetoric. But Trump could hardly be held legally accountable for what the Russians were doing independently. Direct contact by the Trump campaign with Russian entities might be illegal. Such contact would be similar to, but legally distinct from, illegal cooperation with an independent PAC.

Why did Russians help the Trump campaign? One answer is that Trump’s rhetoric fit into Russian’s historic strategy of denigrating democratic institutions and promoting racial, ethnic, and class divisions in countries deemed to be enemies. This strategy goes back to the Comintern – the Third International 1919-1943 – and the Soviet Union during the Cold War. In a sense, the Trump campaign joined the Russian effort rather than the other way around.

There was, however, more than serendipitous similarity. Trump continually praised President Putin and called for better relations with the Russians. The Russian campaign aimed vicious charges at Hillary Clinton, advocated for Trump and discouraged voting by usual Democratic voters. The timing of Russian efforts shows this coordination. For example, release of Hillary Clinton’s hacked emails by WikiLeaks just as The Washington Post published the “Access Hollywood” tape in which Trump boasts of grabbing women.

Trump and the Russians were clearly working together or “colluding” during the campaign in the way that presidential campaigns routinely collude with supposedly independent PACs. Whether there was an illegal conspiracy to facilitate this collusion and any quid pro quo for the Russian efforts, are separate questions.

Theodore S. Arrington is Emeritus Professor of Political Science, University of North Carolina at Charlotte

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