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Trump's top lawyer helped open political spending floodgates

Trump's rejection of pay-to-play politics is central to his appeal. But his top lawyer helped create the lawless campaign finance system Trump now denounces.
Federal Election Commission (FEC) Commissioner Donald McGahn II testifies during a hearing, Nov. 3, 2011 on Capitol Hill in Washington, DC. (Photo by Alex Wong/Getty)
Federal Election Commission (FEC) Commissioner Donald McGahn II testifies during a hearing, Nov. 3, 2011 on Capitol Hill in Washington, DC.

Donald Trump has made his opposition to the flood of big money in politics a centerpiece of his front-running campaign, frequently lamenting the role of super PACs and the outsized sway of wealthy donors like the Koch brothers. But Trump’s top campaign lawyer, veteran Republican election attorney Donald McGahn, was a crucial player in creating the out-of-control campaign finance system that his boss now denounces.

McGahn helped broker Monday's meeting between Trump and Republican congressional leaders, which took place at the Washington offices of the law firm Jones Day, where McGahn is a partner.* To date, the Trump campaign has paid Jones Day more than $500,000, according to Federal Election Commission (FEC) filings. 

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McGahn’s key role on Team Trump undercuts the brash businessman’s claim that he’ll reduce the political influence of billionaires and special interests. And it suggests that Trump’s campaign may intend to tap into other sources of big money, using McGahn’s expertise to push the boundaries of the law.

As a member of the FEC from 2008 to 2013, campaign finance reformers say, McGahn led the successful conservative effort to neuter the agency, with the result that today it is unable to respond to even seemingly egregious violations of campaign finance law. Soon after McGahn joined the FEC as its chair, its three Republican-appointed commissioners have consistently voted as a bloc against enforcement, stymieing the agency from taking action — a situation that has continued since he left.

Lawrence Noble, a former FEC general counsel now with the Campaign Legal Center, which supports stricter campaign finance regulations, points out that the rise of super PACs, which has allowed the uber-wealthy to pour unlimited dollars into electoral politics, wasn’t inevitable after the Supreme Court's 2010 Citizens United ruling. It happened thanks in part to the FEC’s decision — driven by McGahn and its other GOP-appointed commissioners — to interpret Citizens United broadly, rather than seeking to salvage what it could of campaign finance law.

In other words, if you don’t like today’s almost-anything-goes campaign funding landscape, you can lay part of the blame on McGahn.

“McGahn’s general philosophy has been, the law is too burdensome for the poor political people who want to run campaigns,” said Noble. “So you ended up with super PACs as effectively arms of the campaigns, and the explosion of dark money because they cut back on disclosure rules ... It’s fair to say he was a leader in a lot of that.”

Craig Holman of Public Citizen, another pro-reform group, goes further. “McGahn’s role was to bring the FEC into dysfunction so that the campaign finance laws could easily be sidestepped,” Holman said via email.

RELATED: ‘Citizens United’ fallout ‘more dangerous’ than expected

McGahn declined to comment in detail for this story. But his conservative defenders argue that he was right not to enforce campaign finance laws that violate the Constitution. They say the FEC should ensure that the First Amendment rights of campaigns and contributors are protected from overzealous regulation.

McGahn himself appears to relish his role in upending the agency, noting in a brief email to MSNBC that “others have called my tenure the most consequential of any commissioner.” Indeed, McGahn seems never to have believed in a strong role for the agency in enforcing campaign finance laws. “You’re gonna appoint your guys to make sure you are taken care of,” he told the author of a 2003 academic study of the commission. “The original intent was for it to be a glorified congressional committee. That’s the way I see it.”

Supporters of campaign finance regulation say it was those views that made McGahn— a former top lawyer for the National Republican Congressional Committee, as well as Tom DeLay’s ethics adviser—Mitch McConnell’s choice to chair the agency in 2008. The GOP Senate leader is a staunch foe of campaign finance regulation who personally sued to weaken the 2002 McCain-Feingold law.

“I don’t think Mitch McConnell has attempted to hide his disdain for campaign laws,” said Noble. “Don McGahn fit perfectly into his philosophy of not enforcing campaign finance laws.”

Now, McGahn may be poised to use his detailed knowledge of campaign finance law and its many loopholes on behalf of his latest client.

“As the campaign enters the convention and the general election season, Trump will inevitably start tapping into other sources of big money, such as closely coordinating with outside groups and super PACs while avoiding the laws against such coordination,” wrote Holman. “And this is where McGahn will come in particularly handy.”

But there’s little question that his approach contrasts with the thrust of Trump’s public statements on money in politics. Trump has criticized Citizens United, calling super PACs “horrible” and saying they’re not really independent from the candidates they’re backing.  And he’s consistently expressed concern that when candidates take money from wealthy donors, “they owe them,” saying that unlike his rivals, his personal wealth makes him impossible to buy.

"I guess from my standpoint personally I'd almost rather not see it," he has said of candidates seeking to raise large amounts of money from the Koch brothers.

Of course, that’s the world that Trump’s own campaign lawyer helped create.

* CORRECTION: This story originally referred to Jones Day as a law and lobbying firm. In fact, it does not officially lobby.