Senate Campaign-Finance Hearings

       The game today was “pin the independent prosecutor on Al Gore.” The Republicans, who were outraged when Janet Reno refused last time around, thought they finally had her cornered.
       To understand what any of it was about, you first have to grasp the arcane distinction between “hard” and “soft” money. Hard money, which is also known as “federal money,” is governed by federal election law. Individuals can only give $25,000 a year, and corporations can’t give any. Soft, or “nonfederal money,” on the other hand, is unlimited and unregulated. It exists because of a loophole opened up by Federal Election Commission rulings in the late 1970s, which allowed unlimited contributions, from individuals or businesses, for national party spending on state and local elections, and for so-called “party-building” activities. In reality, most soft money goes for the same thing (TV ads) that hard money does. But forget that for now, since the day’s hearings hinged on the pretext that the distinction has meaning.
       The basis for the Republican excitement today was the revelation that some of the donations the vice president solicited from his office were used by the Democratic National Committee as hard money. This is relevant because Reno based her decision not to appoint an independent counsel on her understanding that Gore’s calls were requests for soft money. Section 607 of Title 18 of the U.S. Code says, “It shall be unlawful for any person to solicit or receive any contribution within the meaning of … the Federal Election Campaign Act of 1971 in any room or building occupied in the discharge of official duties.” In justifying her decision, Reno argued that soft money was not a “contribution” under the Federal Election Campaign Act of 1971.
       Republicans thus wanted to prove that Gore was raising federal money, and that he knew he was raising federal money. The first point was easy. As the New York Times reported this morning, the DNC, which increasingly looks to have been run by covert agents from the other side, spontaneously began putting part of its soft money contributions into its hard money account without asking the donors. The reason they did this, beginning in early 1996, is obvious. Hard money is generally rarer and more valuable. But the DNC’s alchemy put some of its biggest contributors over the $25,000 annual hard money limit, turning them into unwitting lawbreakers.
       DNC counsel Joseph Sandler, who was the day’s witness, contended that, like the dropping of vetting procedures for big contributions, this change in procedure was merely the result of incompetence at party headquarters. A larger sense of what was going on in the Clinton re-election campaign suggests that both screw ups were at least the indirect result of an insatiable hunger for cash. But no one has been able to prove that. The most you can say is that the pressure to raise money was intense and corrupting. Sen. Lieberman asked Sandler whether, as the DNC’s chief lawyer, he was under pressure from other officials at the party to allow them to accept money that seemed questionable to him. “Sometimes,” Sandler acknowledged.
       But the case that Gore knew that the DNC was “redesignating” soft money, as Sandler termed it, is much harder to make. Republicans focused on a series of memos from former Chief of Staff Harold Ickes to the president and vice president about fund raising. These were supposed to “create an inference,” as Arlen Specter likes to put it, that Gore knew some of the money he was raising was hard. The details of this debate got pretty arcane, driving all but a few of the reporters from the hearing room by midafternoon. What they missed was a classic interchange in which Sandler’s attorney, a perky little man who happens to be his cousin, interjected to ask if the witness might finish his answer to one of Specter’s questions.
       “No he may not finish,” Specter snapped.
       At this, Sen. Thompson could be observed exchanging a knowing look with Minority Counsel Alan Baron, as if to say: Where did this guy come from, and how do I get him off my committee?
       What annoyed Specter–and it doesn’t take much–was that the Ickes memos simply don’t say what he wanted them to say. They explain that, as a matter of law, only the first $20,000 contributed by an individual to the DNC (the limit is $25,000 in federal contributions overall) can count as federal money. But they don’t say that the first $20,000 has to be counted as federal money–it doesn’t–or that the DNC was taking contributions that were intended as “soft” and making them hard.
       Even if the Republicans had a case that Gore was knowingly dialing for hard dollars, they still wouldn’t have him dead to rights. There are at least two other powerful arguments that the vice president couldn’t have broken the law, and thus, that there’s no call for an independent counsel. The first reason was explicated by Sen. Levin. It’s that the Pendleton Act of 1883, which was the original, pre-telephonic prohibition on fund raising in federal offices, only prohibited soliciting other federal employees on federal property. As the law evolved over the years, it became more sweeping on its face. Good lawyers advise their clients not to become test cases, which is why White House counsel Abner Mikva wrote a memo saying that no one in the administration should do any soliciting at the office. Gore was very foolish not to have followed that advice. But the original intent of the law remains, which is why none of the many congressmen and senators who have made fund-raising calls from their offices have ever been prosecuted for doing so. The second, related trump card in the vice president’s hand is that, according to the independent counsel statute, the attorney general is not supposed to ask for an appointment in cases where it would be Department of Justice policy not to prosecute someone who wasn’t covered by the law for the same crime. That is clearly the case here.
       Fred Thompson was very quiet today, asking no questions. This may be because he thinks the case for the appointment of an independent counsel is thin, or it may be because as a potential presidential candidate himself, he doesn’t want to be seen as trying to disembowel his fellow Tennessean three years before the election. The chairman even seemed a bit protective of Gore. At one point, Specter said Gore was a lawyer who should have understood these niceties. Thompson interjected that the vice president wasn’t a lawyer. Specter, in a fleeting moment of humility, apologized for his error.