Clinton, Gore Held Unlikely to Face Prosecution

To Republican investigators in Congress, last year’s relentless pursuit of campaign cash by President Clinton and Vice President Al Gore looks like a massive conspiracy to evade the post-Watergate campaign finance laws, and even to many Democrats it offers a dismaying spectacle.

Yet the fund-raising mess is unlikely to lead to criminal charges against top officials in the White House or the Democratic National Committee, according to campaign finance lawyers.

The reason is clear: The laws are too murky. Criminal charges traditionally require proof that a defendant “knowingly and willfully” violated the law--a tough standard to meet in the case of campaign finance laws.

“There is a wide gulf here between what doesn’t look good and what’s illegal,” said Kenneth A. Gross, an election law expert and counsel for Bob Dole’s 1996 presidential campaign. “There’s no question a lot of what went on doesn’t look good, but it doesn’t give grounds for a prosecution.”

So far, the pressure on Atty. Gen. Janet Reno to ask for an independent prosecutor to look into campaign fund-raising is driven less by clear evidence of illegalities than by concerns over her ability to conduct, or even her interest in, a probe of her own bosses. Reno’s Justice Department investigators are still several weeks away from deciding whether there is enough evidence to warrant the appointment of an independent prosecutor.

Here are some of the areas investigators are looking at:

Illegal phone calls? Clinton and Gore may have violated the 1883 Pendleton Act by making fund-raising phone calls from their offices. The act bars officials from soliciting or receiving campaign money from within a federal facility, but most lawyers doubt such a charge would stand up because the act, which was passed before telephones were in common use, has not been used against other officials who have made such fund-raising calls.

Illegal fund-raising in the White House? Big donors were invited to the White House for coffees with the president or sleepovers in the Lincoln Bedroom. These could also be deemed illegal if Clinton directly charged donors to participate. But without an explicit link to contributions, the events are not illegal.

Illegal foreign money? This is a fertile area for prosecutions. Section 441e of the election laws bars a “foreign national” from giving money to a federal election campaign. It is also illegal for “any person to solicit, accept or receive any such contribution.”

Investigators may bring charges against a few Democratic fund-raisers. But while the direct participants could be indicted, it will be harder to make a case against the candidates themselves and their top campaign officials unless it can be shown they knowingly and willfully sought money from people who were barred from contributing.

Conspiracy to circumvent the election laws? Common Cause, a nonpartisan watchdog group, charged in October 1996 that the Clinton and Dole presidential campaigns “massively violated” legal spending limits by pouring millions of dollars into TV ad campaigns run through the parties. The group calculated that the Clinton campaign used at least $22 million in unregulated money for its advertising campaigns, while the Dole campaign spent at least $9 million.

But the Federal Election Commission, which is charged with enforcing campaign laws, and the Justice Department have taken the view that “issue ads” are exempt from the spending limits, a stance that makes a subsequent prosecution all but impossible.

At the heart of the controversy are the 1974 election laws that created the FEC and established limits on fund-raising and campaign spending.

The laws make public funds available to presidential candidates who agree to limit how much they spend on their campaigns. For example, Clinton and Dole accepted public funds for their primary campaigns and were limited to spending $37 million apiece.

The 1974 election laws also limit citizens’ contributions for federal elections. These limits do not apply to money contributed to the political parties for so-called party-building activities, such as get-out-the-vote drives.

By the mid-1980s, the parties were using their revenue to pay for generic ads promoting their agendas--but not their candidates.

Early in 1995, the FEC advised the Republican National Committee that it could use this unregulated soft money to pay for ads so long as they did not include an “electioneering message” about “a clearly identified candidate.”

Before the votes were cast last November, tens of millions of dollars from both political parties poured through that loophole.

In the fall of 1995, the Clinton-Gore campaign, at the urging of advisor Dick Morris, undertook a huge TV ad campaign portraying Clinton as the defender of Medicare against the efforts of Dole and House Speaker Newt Gingrich (R-Ga.) to slash the program. The ads were paid for by the Democratic Party with soft money.

Videotapes of Clinton’s meetings with contributors show how he did it.

“We realized we could run these ads through the Democratic Party, which meant we could raise money in $20,000 and $50,000 and $100,000 blocks,” Clinton told one group of major contributors.

“In these areas where we have shown these ads, we are basically doing 10 to 15 points better than in the areas where we are not showing them,” Clinton told another group.

Was it legal? “Absolutely,” said Lyn Utrecht, counsel for the Clinton-Gore campaign. “The lawyers from both parties looked at this and came to the same conclusion.”

William B. Canfield, former counsel for the National Republican Senatorial Committee, agrees.

“You look at the text of the ads,” he said. “If they don’t say, ‘Vote for Clinton’ or ‘Defeat Dole,’ they are issue ads. It doesn’t matter that they directly benefit candidate Clinton. I’m not saying the law makes sense, but that is the law.”

The Supreme Court has contributed to the difficulty of policing the fund-raising laws.

In 1976, in Buckley vs. Valeo, the justices declared that most election spending is a type of free speech and enjoys the 1st Amendment’s protection from government regulation. Since then, the court has slapped down FEC efforts to chip away at the free-speech standard.

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In 1995, the FEC tried to restrict ads or mailings from incorporated groups that could “reasonably” be read as encouraging the election or defeat of a candidate. Lawyers for the National Right to Life Committee challenged those regulations as free-speech violations. A U.S. court of appeals agreed and invalidated the rules.

Last month, the FEC and the Justice Department appealed to the high court, but the justices rejected the appeal without a hearing.

The justices have been equally unwilling to treat campaign contributions--even secret cash delivered in an envelope--as bribes or illegal favors.

A federal probe of corruption in the West Virginia Legislature uncovered a state delegate who had pressed a group of foreign doctors, who were practicing medicine under temporary permits that the lawmaker had helped arrange, to give him money for his campaign. They responded by delivering envelopes with $3,200 in $100 bills to his office.

But the Supreme Court overturned his federal bribery conviction in 1991 and set a standard that bars most prosecutions over campaign contributions.