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Friday, September 4, 1998; Page A24


THE QUESTION OF whether Janet Reno will seek a campaign finance independent counsel suddenly seems very much in play. Ms. Reno is once again examining a variety of campaign finance-related matters to see if they require invoking the law -- including, most dramatically, the allegation that lies at the heart of the entire investigation.

Last week, Ms. Reno opened a preliminary investigation to see if an independent counsel was necessary to examine whether Al Gore lied to investigators about his dialing-for-dollars spree. Earlier this week, she opened another on the question of whether Mr. Clinton's former deputy chief of staff, Harold Ickes, made false statements to Senate investigators. And now we learn that, in light of new information obtained from the Federal Election Commission, Ms. Reno is revisiting her earlier decision not to invoke the statute based on the White House's control of the Democratic National Committee's issue advocacy campaign.

The information is apparently not a dramatic piece of new evidence but, rather, a preliminary finding by FEC staff -- not yet adopted by the commission itself -- that cuts against Ms. Reno's previous analysis of the issue ads. Ms. Reno has in the past presented a controversial reading of the law under which the DNC's ad campaign was legal and therefore required no outside investigator to probe. This reading, however, relied on a presumption that the DNC's ads were in fact mere issue -- not candidate -- advocacy.

The FEC staff, however, apparently now has determined that the DNC issue ads did, in fact, contain an electioneering message and that the running of those ads by the White House was therefore illegal. In light of this finding, Ms. Reno -- who has testified before Congress that the department defers to the FEC on such questions -- apparently now feels obliged to reevaluate her own conclusions on whether an independent counsel may be called for.

Ms. Reno is certainly right to give deference to the FEC, which is, after all, the expert agency on campaign finance. But the determination that the ads in question were actually campaign ads has an emperor-has-no-clothes quality to it -- leading some observers to wonder whether this is merely a convenient way out for the attorney general.

It is, to be sure, disturbing that an FEC auditor's preliminary determination alone could be so fateful as to cause the attorney general to -- based on the same facts -- reconsider an earlier determination that another independent counsel is unnecessary. All the more so because the pitfalls of trying to define the law on soft-money issue ads in the context of a criminal investigation remain as treacherous as they have ever been.

Both parties pushed the line in the 1996 election, but it is far from clear that their conduct violated criminal law. Indeed, this body of law is so murky that even as Republicans blast Ms. Reno's reading of it, their own party parrots her legal views in federal court as the correct analysis.

The prudent response to this ambiguity -- and the one Ms. Reno has taken to date -- is to refuse to invoke the statute. These are criminal cases that the Justice Department almost certainly would never bring, and an independent counsel is not needed in order to second-guess that reasonable judgment.

What is needed, rather, is action by Congress to strengthen the law, combined with civil enforcement by the FEC to clarify the existing rules. The trouble is that the independent counsel statute gives Ms. Reno little authority to make this sort of prudential judgment once she concludes that a crime may have taken place. Unless she determines that an established department policy -- as opposed to mere common sense -- would preclude bringing a criminal case, she may be forced to invoke the statute.

© Copyright 1998 The Washington Post Company

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