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Aides Advise Reno to Pursue Probe of Fund-Raising Calls Under Special Counsel Law (Washington Post, Oct. 2)

Many Interpretations of Obscure Law

By Ruth Marcus
Washington Post Staff Writer
Thursday, October 2, 1997; Page A04

The shakedown couldn't have been more blatant. E.S. Thayer, a member of the Texas Republican state committee, wrote to a federal tax official working out of the Dallas post office to demand a campaign contribution.

"You are now . . . receiving a salary of $900 per year. I, therefore, ask you to at once . . . remit the sum of $45, it being 5 percent of your salary," he wrote in September 1906, enclosing a coupon for the worker to send back. "This is very important."

Thayer was prosecuted for violating the Pendleton Act, an 1883 law which prohibits the solicitation of campaign contributions on federal property. His obscure case is one of the handful of tests of the law, which has been catapulted into prominence by reports that Vice President Gore, and perhaps President Clinton, made fund-raising calls from their White House offices.

As Attorney General Janet Reno prepares to take the next step in the legal process that could lead to appointment of an independent counsel to investigate Gore, the meaning of the Pendleton Act has never been more important, or more hotly debated. And while the law would seem on its face to prohibit such calls, the legal analysis as it applies to Gore and Clinton is far from simple, and experts sharply disagree. There are only four reported court cases on it, the last from 1954.

The questions center on three issues: Does the law apply to the solicitation of people who aren't federal employees, or only to situations in which federal workers are being pressured to contribute? Does it apply in cases where a telephone call is made from a federal office, but the person being solicited isn't on government property? And does the law apply at all to the president and vice-president, as opposed to all other federal employees?

Does the law apply only to federal workers?

The language of the law, known as Section 607, is broad. It makes it illegal "for any person to solicit or receive any contribution" covered by the federal election law "in any room or building occupied in the discharge of official duties by any person mentioned in Section 603." That section applies to rooms used by "an officer or employee of the United State or any department or agency thereof."

The Justice Department's 1995 manual on election law states that the "employment status of the parties to the solicitation is immaterial." What matters, according to the manual, is "the federal character of the place where the solicitation took place or was directed."

But the manual also states that "prosecutable violations of section 607 may arise from solicitations that can be characterized as `shakedowns' of federal personnel" – suggesting that other situations, while technical violations, wouldn't end up being prosecuted. And Gore's backers argue that the law – passed as part of an overhaul of the federal civil service to reduce patronage jobs – was intended to cover only such coercive situations.

For example, Connecticut Republican Sen. Joseph Hawley, the sponsor of the amendment that became Section 607, said during the Senate debate in December 1882 that it was aimed at preventing "oppressive extraction" of contributions in government offices.

Likewise, in its 1985 rejection of a complaint about a fund-raising letter prepared by the Democratic Congressional Campaign Committee and distributed to Democratic members, the House Ethics Committee said the law was "intended to protect federal employees from coercion vis-a-vis political contributions and to insulate the federal workplace from such solicitations."

And the Watergate Special Prosecutor in 1974, differing with the Justice Department, found that the law "was intended to protect federal civil service employees from coercion and thus prohibits the solicitation or receipt of contributions only from such employees."

Even if it applies to people who aren't federal employees, does the law apply to telephone solicitations in which the person being called isn't on government property?

The main argument about this issue involves the Thayer case, the first and only Supreme Court test of the law. In that case, Justice Oliver Wendell Holmes – noting that the law was intended "to check a political abuse which is not different in kind whether practised by letter or by word of mouth" – found that the solicitation occurred when the federal worker received the letter, not when Thayer mailed it. That meant the prohibition on soliciting in federal buildings applied.

Gore's supporters argue that Thayer shows that the place where the solicitation was received – not where it came from – is what matters under the law. They also cite a recent Congressional Research Service study that found that while "the language of Section 607 might be broad enough to apply to all situations where one would initiate a request for a campaign contribution for a federal election in a federal building or office," the Justice Department has never used it to cover solicitation "to persons who ar not located themselves in a federal building."

But others note that the 1908 Thayer ruling came before the period when telephones were in wide use or installed in the White House and that Holmes's reasoning – "an offer is nothing until it is communicated to the party to whom it is made," he wrote – could be different when applied to a telephone solicitation. In addition, Holmes was expanding the reach of the law to get at the contested conduct, not contracting it.

And a 1995 memorandum by then-White House counsel Abner J. Mikva instructed White House workers that "no fund-raising phone calls or mail may emanate from the White House or any other federal building." The memorandum was intended for staff, who aren't allowed to solicit contributions in any case.

Even if it applies to telephone solicitations of people who are not federal employees, does the law apply to the president and vice president?

The law covers federal offices used by people who are officers or employees of the United States, language that would appear to include Clinton and Gore. A 1979 opinion by the Justice Department's Office of Legal Counsel, relying in part on comments by Sen. Hawley, found that while the issue was open to debate, the "better view" was that the president and vice president were among the covered "officers."

Gore's supporters, however, point to the fact that members of Congress are specifically mentioned in the law, while the president and vice president are not. They also note that the description of what offices are covered has been changed since the Office of Legal Counsel opinion, so that the 1979 analysis may no longer apply.

And they point to a 1992 Supreme Court ruling, Franklin v. Massachusetts, for the proposition that laws should specifically mention the president and vice president if they mean to include them.

In that case, the court ruled that the president was not an "agency" under the Administrative Procedure Act, which governs the rules for federal agencies. "Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the president to the provisions of the APA," the court said.

Reno has a separate issue to grapple with – whether Gore knew that some of the money he raised was going to be deposited into "hard money" accounts by the Democratic National Committee. That is important because, according to Reno, Section 607 covers only such "hard money" contributions. Gore has said he intended to solicit only "soft money," a different category of contribution that Reno has said is not covered.

But Reno might not have to get to the difficult question of Gore's state of mind if she determines the Justice Department would not prosecute such a case. Under the independent counsel statute, Reno is supposed to "comply with the written or other established policies" of the Justice Department in deciding whether to seek an independent counsel.

Some experts said it was time for an independent counsel. "On its face, it's a violation," said Jan Baran, a Republican attorney who specializes in election law. "Just like if you jay-walked across the street, it's a violation of the law. That doesn't mean that people get ticketed and sent to prison for it. . . . I think it violates the law and there ought to be an independent investigation to determine whether it is flagrant enough to warrant a prosecution."

Others said it would violate established department policy to prosecute under such circumstances. "If this were anyone other than the vice president of the United States, no one would be considering prosecution and, indeed, the times that it's come up before, the Justice Department specifically declined to prosecute," said Marc Miller, who represented one of four Agriculture Department employees who allegedly solicited contributions to Clinton's 1992 campaign inside the agriculture building.

Although the department originally considered charging the agriculture employees under Section 607, they ended up pleading to a misdemeanor of promising benefits for federal contributions. The prosecutor on the case was Laura Ingersoll, who until recently headed the Justice Department task force looking at the 1996 campaign.

© Copyright 1997 The Washington Post Company

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