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From The Post Reno Decides Against Independent Counsel To Probe Clinton, Gore (Dec. 3) News Analysis: Decision No Cause for Celebration (Dec. 3) Reno Clears O'Leary in Charity Donation (Dec. 3) The Probe's Path: A Timeline (Dec. 3) Reno: 'This Decision Was Mine' (Dec. 3) On washingtonpost.com Discussion: Did Reno Make the Right Decision? In Bigger Picture, Law Often Seems Gray By Ruth Marcus Washington Post Staff Writer Wed., Dec. 03, 1997; Page A01 Attorney General Janet Reno's decision yesterday not to seek an independent counsel to investigate President Clinton and Vice President Gore did nothing to quiet – and, indeed, may have further inflamed – critics who say an independent counsel is warranted to look at the bigger picture of fund-raising abuses during the 1996 campaign. Republicans did not dispute Reno's legal analysis on the narrow question of whether the president and vice president's fund-raising telephone calls warrant criminal prosecution as much as they complained that her inquiry was not framed broadly enough and did not consider what they see as the Justice Department's inherent conflict of interest in the case. A main focus for Reno, they argue, should have been the Democratic Party's $44 million "issue advocacy" advertising during the campaign. That advertising, they say, combined with Clinton's intense personal involvement in raising the money to pay for it and craft its message, represented an illegal effort by the president and his campaign to evade the spending caps to which presidential candidates agree as a condition of receiving federal funds. Following Reno's announcement yesterday, Sen. Fred D. Thompson (R-Tenn.), who headed the Senate inquiry into fund-raising abuses, singled out the use of party advertising as an area that cries out for review by an independent counsel. "Under this interpretation," he said, "all limits are off." But even now, more than a year after the election, lawyers who specialize in the field strenuously disagree over whether the unprecedented blitz of advertising by both political parties violated election law. And, given the murky state of the rules, some – including Republican election law experts – believe it would be a mistake for Reno to seek an independent counsel to investigate whether the advertising constituted a criminal violation. "Criminal sanctions in such a gray area would be just insanity," said Mark Braden, a former chief counsel of the Republican National Committee, who thinks an independent counsel should be appointed, but on other grounds. Others disagreed. "The specific crime you have to look at is conspiring to violate the limits and the White House tapes would seem to suggest . . . that the use of the soft money [Clinton] was raising was specifically for him and his campaign," said Benjamin Ginsberg, another former RNC chief counsel, referring to the videotapes of Clinton fund-raisers made by the White House and obtained by congressional investigators. Campaign finance advocates such as Common Cause argue that both parties' advertising campaigns – carefully crafted to avoid specific appeals for a presidential candidate – constituted an evasion of the $37 million spending limit imposed by federal law on the 1996 primary campaign. Common Cause also argues that the advertising violated the law because it was funded in part with unlimited "soft money" contributions from corporations, labor unions and individuals, donations that aren't supposed to be used for federal races. Republicans such as Thompson and Sen. Arlen Specter (Pa.) contend that the GOP advertising stayed within those bounds, but that the Democrats violated the election law because Clinton and his top strategists were intimately involved in crafting the commercials and deciding where they should run. As evidence, they point to the recently disclosed videotapes that capture Clinton explaining how the large sums of cash going to the Democratic National Committee would benefit his reelection drive. Specter, appearing on ABC News's "This Week" last Sunday, accused Reno of a "much too narrow" focus in determining whether an independent counsel was necessary. He called Clinton's videotaped comments that the ads helped his candidacy "a smoking gun," saying that with the commercials' attacks on Republican presidential candidate Robert J. Dole and praise for Clinton, "there's no way a rational person can say they're anything but advocacy ads" pushing Clinton's reelection. In her news conference yesterday, Reno did not directly reply to a question about why she examined only whether an independent counsel should be named to investigate fund-raising calls, a tiny sliver of the complaints about Clinton and Democratic fund-raising abuses. She said only that she would "pursue every lead" that suggested criminal wrongdoing. In fact, she has already rejected GOP requests to examine the advertising issue. In a letter last April to Sen. Orrin G. Hatch (R-Utah), Reno said that evidence of Clinton's involvement in the DNC's advertising wasn't legally relevant because the Federal Election Commission "has historically assumed coordination between a candidate and his or her political party." The FEC has approved party issue advertising, even spots naming individual candidates, as long as there was no "express advocacy" of a particular candidate and no "electioneering message," meaning statements "designed to urge the public to elect a certain candidate or party." In 1984, the FEC told the RNC that television advertising that showed a Democratic presidential candidate, critiqued his position, and urged viewers to "Vote Republican" had to be treated as direct spending on behalf of the GOP presidential nominee. The next year, the commission said the Democratic Party could broadcast ads critical of "your Republican congressman." But the FEC said it assumed the ads weren't coordinated with Democratic candidates and noted that they were going to be run a year before the election. And, in another part of the ruling, it said mailings that criticized Republicans by name and were sent to their congressional districts had to be counted against party spending limits. But election law experts said the rules have been relaxed somewhat in recent years, as courts have been hostile to the FEC's attempts to rein in issue advocacy advertising. The latest FEC ruling was made in August 1995, when the commission gave the go-ahead to a Republican Party advertising campaign that urged support for the GOP position on the balanced budget and Medicare and mentioned Clinton by name. As FEC general counsel Lawrence M. Noble summarized the rules in testimony before the Senate Governmental Affairs Committee in September, "if it's for the purpose of influencing an election and coordinated with a candidate," ads will be considered spending for that candidate, and counted against party limits. Trevor Potter, a Republican former chairman of the FEC, had an even stricter interpretation of the law. Potter said he thought an independent counsel should be named to scrutinize either whether the Democratic ads contained an "electioneering message" or – irrespective of what the ads said – whether the extensive involvement of Clinton and his strategists meant that they should be considered Clinton campaign spending. While parties may coordinate with their candidates, if the spending is "at the request of the candidate or his agent" it is considered a campaign expense and should be counted against Clinton's limits, Potter said. But the Clinton campaign's general counsel, Lyn Utrecht, adamantly defended the party's advertising, and found backing from some prominent GOP election lawyers. While both political parties have argued that the test for whether the advertising goes over the line should be whether there is "express advocacy," Utrecht said the DNC ads were designed to comply with the even more stringent "electioneering message" test by not mentioning the election and by concentrating on "real issues" before Congress. She said Clinton's comments about the ads were legally "irrelevant" because the FEC looks at the ads themselves to determine whether there is an electioneering message, not the intent behind them. Said Jan Baran, a GOP election lawyer and Potter's law partner, "If coordination between an incumbent president and a political party constituted criminal conspiracy, then our jails would be full of presidents. . . . The law contemplates the reality that parties and candidates act, pardon the expression, in common cause." © Copyright 1997 The Washington Post Company Back to the top Go to Campaign Finance Report | Go to Politics Section