FEC Lets '96 Campaigns off on 'Issue Ads'
Washington Post Staff Writer
Friday, December 11, 1998; Page A21
The Federal Election Commission voted unanimously yesterday against demanding multimillion-dollar repayments from President Clinton and his 1996 Republican rival, former senator Robert J. Dole, for allegedly misusing party funds during their presidential campaigns.
The decision not to punish a growing but controversial form of campaigning gives both parties a green light to use the same tactics in the 2000 presidential race, according to election law experts.
The commission, which is evenly divided between Republicans and Democrats, voted 6 to 0 to reject recommendations by staff auditors who contended that both 1996 presidential candidates evaded spending limits by orchestrating massive advertising campaigns financed by party organizations and should thus repay a portion of the federal funding they had received.
The commissioners argued there was no obvious standard to determine when "issue advertisements" should be counted against spending limits for individual candidates and when they can counted as party spending, which is not subject to strict regulation by the commission.
The FEC auditors calculated that if the cost of the issue ads were to be counted as spending by the individual campaigns, then Clinton should repay $7 million and Dole owed $17.7 million for having exceeded the spending limits they promised to observe when they accepted federal campaign financing. With the issue ads taken out of the picture, relatively small amounts -- just $16,000 in the case of the Clinton campaign -- remain to be resolved in the campaign audits.
Attorneys for both the Clinton and Dole campaigns declared themselves pleased by the decision, but critics of current election law enforcement mechanisms claimed that the FEC had extended legal sanction to a form of unregulated campaign spending.
"The FEC has basically given their stamp of approval for a major means of circumventing the law," said Donald Simon, executive vice president of the citizens lobby group Common Cause. "They've said candidates can agree to spending limits in exchange for public money, but that agreement can be made with a wink, and those spending limits can be evaded by having the parties spend the money for the candidates."
The FEC could still authorize a civil enforcement action against the 1996 presidential campaigns and seek the payment of fines, but the unanimous vote against the audit recommendations and extensive comments by the commissioners suggested that is unlikely.
"I don't adopt the recommendations, I don't adopt the findings, and I don't adopt the legal analysis," said Commissioner Karl Sandstrom, a Democratic appointee.
On Monday, Attorney General Janet Reno decided against seeking an independent counsel to investigate whether the allegations raised in the FEC staff audit constituted criminal violations of election law by Clinton and his campaign. In court papers, Reno explained her decision by citing Clinton's reliance on the advice of lawyers, who concluded the issue ads were legal, and she prominently noted the confused state of the law in this area.
This week's actions by Reno and the FEC suddenly and unexpectedly cleared up some of that confusion.
"Reno's decision means this is not criminal behavior and the commission in effect acknowledged that its standards are vague and unenforceable," said Jan Baran, an attorney who specializes in election law. "That means that the rules for issue advertisements as interpreted by the parties in 1996 are the rules for 2000."
Aside from political parties, in recent elections a variety of unions, industry groups and other advocacy groups have purchased advertising criticizing or supporting candidates for elected office, and this week's decisions also extend a degree of sanction to those activities, according to Baran and other experts.
"If issue advertisements are going to be regulated in the future, then it is incumbent on the FEC, or more likely Congress, to clarify the parameters," said Kenneth Gross, an election law attorney who represents the 1996 Dole campaign.
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