CAMPAIGN FINANCE : The Greed of Both Parties Undermines the Election Law

Atty. Gen. Janet Reno has, in effect, declared legally dead the historic prohibition in federal elections of contributions from corporate treasuries (a century old), and union treasuries (a half-century old) and the limitations on the size of individual contributions (a quarter-century old). In doing so, she has ruled that our federal elections are now for sale on a scale previously unimaginable in the United States. Watch what happens in election year 2000.

Whether to stick to this ruling, and not whether an independent counsel will be appointed, is the critical issue before the attorney general. The McCain-Feingold bill would remedy this problem by statute. But the need for a remedy is made far greater by the foolish words of the Justice Department.

My wife is fond of quoting Mr. Bumble from Charles Dickens’ “Oliver Twist.” “If the law supposes that,” said Bumble, “the law is a ass, a idiot.” In explaining why contributions that President Bill Clinton solicited for his 1996 campaign and then spent on ads he designed were not for campaign purposes of getting him elected--and thus not violations of the federal campaign laws--the Justice Department is telling us that the law “supposes” something just as contrary to fact as the absurdity irritating Bumble.

On April 14, 1997, in response to Chairman Orrin G. Hatch (R-Utah) of the Senate Judiciary Committee, the department gave its only explanation of this conclusion, saying, in a single sentence:

“With respect to coordinated media advertisements by political parties (an area that has received much attention of late), the proper characterization of a particular expenditure depends not on the degree of coordination, but rather on the content of the message.”

In simple English, the Justice Department is saying that in making the two determinations that decide legality--whether an ad is for election purposes or is intended merely to discuss issues; and whether an ad is by a campaign or by a political party--all the following is completely irrelevant. It makes absolutely no difference, the attorney general says: 1) that the ad is funded, designed and placed at the request of the candidate; 2) that as we have seen in recently released tapes of the president and read in accounts of the campaign, the ad is expressly intended to further his election, and 3) that the role of the Democratic or Republican National Committee is to be a willing servant in these plans.

The president says as much on tapes of a May 21, 1996, meeting, “The fact that we’ve been able to finance this long-running” ad campaign has “been central to the position I now maintain in the polls.” Yet the Justice Department tells us to presume the ads were not intended to get him elected.

The truly important consequence of this bizarre conclusion is that the Justice Department has shredded the campaign finance laws and exposed us for the first time in a century to unlimited purchases of access and influence. No familiar interpretation of statutes requires this.

In 1996, at the request of the two presidential campaigns, corporations, unions and wealthy individuals donating large sums gave about $75 million to both parties--which used it to buy ads designed by the campaigns to advance their candidacies.

If the donor had simply given the money directly to the candidate to pay for ads, the contributions would have been prohibited by the statute. If the donor had instead designed and broadcast ads under its own name but arranged all this in cooperation with the presidential campaign, the money it spent would still be considered a contribution to the campaign. That is essential to the structure of the statute: An expenditure made at the request of a campaign or candidate and coordinated with it must be treated as a contribution. Otherwise, all contribution limits could be easily circumvented by the campaign or candidates simply asking the would-be contributor to bear particular expenses that the candidate would otherwise have to meet.

In either case, as a contribution to the campaign, there would be no argument about whether the ads were campaign ads or simply discussions of an issue. Everything a campaign does is intended to lead to the election of its candidate. Campaigns have no “issue” ads, and corporate and union contributions to campaigns are forbidden and the size of individual contributions limited--whatever the wording and images an ad is given by the candidate and his staff. So large individual donors, corporations and unions cannot contribute either directly to, or by coordinating their expenditures with, campaigns. In the broadest terms, corporations and unions are also forbidden by statute to make a contribution or expenditure “in connection with” any presidential election.

Why then has the Justice Department concluded that all this is changed by a corporation or union or wealthy individual making the check out to the Democratic National Committee or the Republican National Committee, although the money was intended to help the election of the presidential candidate? Certainly, the purpose of the election statute is absolutely clear. No one can believe that the dangers of large corporate and union contributions, which the Supreme Court has repeatedly recognized in sustaining the statutory prohibitions, are less if the money the candidates solicit from the corporation or union is run through an obedient party committee before appearing as an ad designed by the campaign.

Any expenditure by a corporation or union or a major individual contributor that is requested and controlled by a presidential campaign is a contribution to the campaign. As such, it is subject to the prohibitions and limitations of the statute.

The statute’s wording does not pose any difficulty in reaching this sensible conclusion. In any other situation, a statute would be read to treat actions directed and controlled by Mr. X as the actions of Mr. X. No drug dealer or money launderer could get away with a contrary argument. Certainly from the point of view of the corporation or union, the expenditures were forbidden because they were, in the words of the statute, “in connection with” the electoral campaigns of the presidential candidates who solicited the funds.

As best one can tell, the single sentence in the attorney general’s letter seems based on a mistake about how the First Amendment applies in this situation, rather than on any statutory interpretation. Of course, expenditures on ads discussing policy issues by someone unconnected to a candidate enjoy far more protection under the First Amendment than contributions or coordinated expenditures to candidates for ads designed to further their campaigns. The reason is straightforward: Those paying for policy ads are far less likely to be buying access and influence with a particular candidate. That reason disappears when coordination of expenditures with a campaign brings back in full force all the possibilities of corrupt purchase of favored treatment or access.

So, nothing about the enthusiastic deference to the First Amendment that has led the court to require clear evidence that an ad is intended to further a candidate’s election when a third party runs the ad independently comes into play when presidential campaigns themselves solicit $75 million from unions, corporations and big donors to spend on the election of their candidates. In this context, there is no doubt that the $75 million was intended to create powerful feelings of indebtedness.

To save the federal campaign laws from destruction at the hands of two greedy campaigns, the Justice Department needs only to say, as thousands of judicial decisions have said in other contexts, that what the campaign organizations controlled through intermediaries remains their responsibility; and that funds they are responsible for--which they solicited and used for campaign purposes--could not legally come from corporations, unions or, beyond statutory limits, wealthy donors. These conclusions are almost inevitable readings of the statute, for the law would indeed be, as Bumble suggested, “a ass, a idiot” if it supposed, despite all the evidence, that the two presidential candidates were busy raising money for purposes having little to do with their campaigns. By ratifying the legality of a supposed “loophole,” that the candidates claim their lawyers found, the Justice Department is authorizing the sale of our democracy. It’s not too late to remove the “For Sale” sign.