If Gore Uses a Pay Phone, Can Public Get Its Quarter Back?

Since I retired from the U.S. Senate and moved back to Tuscumbia, Ala., I have, once again, found myself driving through the back roads and country lanes of Alabama hill country. Just last week, in fact, while I was driving to the flea market in Vina, I pulled over in a rain storm to a two-pump gas station with a front porch and a wet dog to make a phone call.

I parked my car, ran to the porch and found a man wearing blue pants, who looked like he ran the place. I asked if I could please use his phone. He looked me over and, without much need for saying a word, pointed to the pay phone outside.

Well, it was raining pretty hard, so I asked him again, just as nice as I could, if I could use the phone inside.

He looked at his wet dog, looked out at the rain, and asked, “Local call?” I said no, long-distance. But I’ll charge the call to my credit card. At that point, he walked me over to the phone inside, and though he didn’t watch me punch in all the charge numbers, I could tell he was listening close to make sure I did.

I imagine almost everyone has had a similar experience. As long as I pay for it, what’s the difference to him? And I’d rather not get wet.

So I started thinking about Vice President Al Gore’s long-distance calls. They didn’t cost the taxpayers anything. On the other hand, unlike me at the gas station, if Gore had gone to the Democratic National Committee to make those calls--in a federal limousine with federal secret service agents and federal telecommunications equipment he must always have with him--they would have cost the government a bunch. You might say when the vice president calls from a pay phone in the rain, the taxpayers don’t get their quarter back.

Despite this brand of common sense (which you find throughout Alabama), Gore’s political enemies say his phone calls violated 18 U.S.C. Section 607, a statute born in the 19th century, which restricts solicitation or receipt of campaign contributions in certain federal offices.

But the way I read the U.S. Supreme Court’s opinion in United States vs. Thayer, Gore’s calls were not a violation of law. In Thayer, the Supreme Court held, in the case of a written solicitation, that the “solicitation was in the place where the letter was received.” Justice Oliver Wendell Holmes, one of our greatest judges, reasoned that a person who mailed letters from outside a government building “did not solicit until his letter actually was received in the building . . . and read there.”

Applying this reasoning to a telephone call from a vice president’s office, the “solicitation was in the place where the [phone call] was received,” not from the location where the call was placed. To Holmes, only the solicitee’s location mattered, not the caller’s. For instance, Holmes suggested that Thayer would not have solicited in a federal building if the “receiver had put the letter in his pocket and had read it later at home.”

Whether writer and receiver or speaker and listener, it takes two people to make a solicitation. One person soliciting is like the sound of one hand clapping. Until the object of the entreaty becomes a party to it, solicitation hasn’t happened.

Those who dispute this reading of Thayer claim that, because letters can be lost or destroyed, Holmes would have thought differently about phone solicitations. “The time determines the place,” Holmes said, and they would argue that telephone callers speak and listen almost simultaneously.

Perhaps Holmes would have thought that an instant’s delay was enough to place the solicitation at the receiving end. Perhaps he would have considered hypotheticals involving phone calls disconnected or cut off, voice-mail or e-mail.

More likely, Holmes would have said that while technology may change, reasoned legal principles don’t have to. Whether by letter, phone or e-mail, Holmes taught us in Thayer that a solicitation takes place where the request completes itself.

The Senate has long known of the confusion surrounding this law, its vagueness and its record of complete nonenforcement. So until Congress clarifies that all such fund-raising calls by all constitutional officers from all government buildings are unlawful, then Holmes’ views on the matter are good enough for me.*