The Law's Intent Was Lost In Reno Fund-Raising Probe
By Bob Dahl
In news accounts and editorials, the case came down to this: At worst, the president and vice president had run afoul of an antiquated law enacted over a century ago to stop politicians from shaking down civil servants for contributions. To apply the law to Clinton and Gore now, these accounts suggested, would be unfair and petty.
Given this backdrop, who could be surprised by Attorney General Janet Reno's announcement last week that the fund-raising calls did not violate the law and, thus, did not meet the standard for appointing an independent counsel? In criticizing Reno's decision, her Republican critics bought into the notion that the law was too dated and insignificant to warrant serious consideration, and faulted her for not seeking an independent counsel to conduct a broad-based investigation.
Reno did not cite the law's age as a basis for her decision. That's because she and her staff were undoubtedly aware of the law's legislative history: Congress reviewed and amended that particular provision of the U.S. criminal code Sec. 607 of Title 18 less than 20 years ago as part of the last significant revision of the Federal Election Campaign Act (FECA). Among those in the House when the legislation passed on a voice vote? Rep. Al Gore, of Tennessee.
The Democrats, in perhaps the most remarkable spin control of the campaign finance scandals, have thoroughly obfuscated and diminished the meaning of Sec. 607. Their spokespeople have attacked the law on a variety of fronts: It's too old and vague to be enforced. It doesn't cover the president or vice president. It doesn't cover phone calls to people outside federal premises. It only covers solicitations of federal employees.
It is true the provision has its origins in the 1883 Pendleton Act. It is also true the prohibitions were originally enacted to prevent elected officials from "shaking down" federal employees for campaign money. But these laws have been revised over the last century to broadly restrain fund-raising abuses conducted on federal property or by federal employees.
Sec. 607 specifically addresses "place of solicitation." It says: "It shall be unlawful for any person to solicit or receive any contribution" in a federal office. To argue that Sec. 607 only covers "shakedowns" of federal employees by their superiors is to ignore its plain wording and to disregard neighboring provisions directed to those issues.
Any confusion about the intent of Sec. 607 should be ended by the clear, if spare, legislative history of the FECA amendments. On Dec. 18, 1979, Sen. Claiborne Pell (D-R.I.), chairman of the Senate Committee on Rules and Administration, and Sen. Mark Hatfield (R-Ore.), ranking minority member, described the components of the bill in statements on the Senate floor. Pell told his colleagues: "It is the purpose of this statement, and that of Senator Hatfield, to explain the intent of the provisions so modified. . . "
Hatfield then gave a detailed and unambiguous explanation of Sec. 607: "Solicitation or receipt of contributions in any room or building occupied by a Federal employee in the course of official duties is prohibited. The sole exception is for contributions received by an individual on the staff of a Member of Congress, provided the contributions are transferred to the Member's political committee within seven days. This exception is intended to cover situations in which a contributor, although not requested to, mails or delivers a contribution to a federal office. The exception does not authorize solicitations from a Federal office. . . ."
Citing legislative history, like arguing from judicial precedent, is rarely an exact science. But this evidence of congressional intent, coupled with the clear language of the statute, should leave little room for argument about the purpose of the law or Congress's understanding of it. Former Minnesota Rep. Bill Frenzel, who presented the amended legislation on the House floor in 1979, told me last week: "Those changes were understood to be a clarification of longstanding rules that prohibit any political fund-raising in or from federal offices."
Moreover, that is how the politicians saw the practical effect of these amendments. In the 1980s, the Republican and Democratic national committees set up telephone "suites" in their Capitol Hill headquarters for members of Congress and their staffs to make fund-raising calls. Ask any top staffer in a House or Senate office from that era, or today. They will tell you that campaign fund-raising in or from their federal offices tops the list of congressional don't-dos.
Has the law occasionally been breached by members or their staff, or by previous administrations? Probably. But that does not mean we should accept systematic violations of it. Contrary to the new conventional wisdom, where fund-raising calls are made is not an inconsequential issue.
More than 20 years ago, in the milestone case of Buckley v. Valeo, the Supreme Court said that "preventing corruption and the appearance of corruption" justified governmental interference in the First Amendment rights of political activity. Since then, the Federal Election Commission and political groups have often battled in court about the limits of FEC regulation; generally, the courts have favored fewer restrictions and narrower FEC jurisdiction. This tug-of-war has left many gray areas in campaign finance regulation. Section 607, however, is not one of them. This law should be viewed as one of the few fairly bright lines in this whole messy area.
Requiring members of Congress, or presidents or vice presidents, or their staffs or "any person," to leave government offices to raise campaign money is not merely hollow form and technicality. It is the bottom line a rational starting point for preventing corruption and the appearance of corruption.
What could be more sensible than a simple rule telling officeholders that they cannot mix political fund-raising and official duties, and thus must not solicit contributions from a government office? When supporters, constituents or lobbyists come by or telephone (maybe seeking a legislative favor), political fund-raising is not permitted. Not in the office. Period.
Besides probably voting for the 1979 FECA amendments as a House member, Vice President Gore ran for U.S. Senate in 1984, for president in 1988 and for re-election in 1990. It is hard to imagine that he did not know of the prohibition of Sec. 607 during those races. It is likely he, as his colleagues did, would have routinely left his office to make fund-raising calls. (Hint to reporters: Ask him.) By 1995, when he apparently first made fund-raising calls for money used by the Democratic National Committee for television commercials benefiting the Clinton-Gore ticket, he must have been on notice that a federal law governed such calls. (Two Clinton White House counsels wrote memorandums warning executive branch personnel not to make fund-raising calls from White House premises).
Yet the Democrats have deflected criticism of their fund-raising excesses this past year by blaming the "system" and calling for further "reform." (Every one of the party's senators has endorsed a rickety McCain-Feingold reform bill that few really support.) How can they have the audacity to call for campaign finance reform while belittling a well-established and clearly understood rule about raising campaign money in federal buildings? What prayer would more campaign finance laws and regulation have in difficult areas like "soft money" accounts or issue advocacy advertising if such a fundamental restriction upon political fund-raising can be ridiculed as outdated, vague and trivial?
There may be other legal reasons why the president and vice president did not violate Sec. 607 in making these particular fund-raising calls, or why the independent counsel statute should not be triggered here. But those are the technicalities, not the fund-raising prohibition itself.
Politicians and the news media should refrain from promoting the notion that this law is meaningless and unenforceable. Sec. 607 is a venerable campaign finance reform recently affirmed and it deserves some respect.
Bob Dahl, a Washington lawyer, was executive assistant to a Republican member of the Federal Election Commission from 1985 to 1991.
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