President John F. Kennedy’s most memorable line was "Ask not what your country can do for you; ask what you can do for your country."
Vice President Albert Gore’s may be his mantra at his March 3 press conference: "My counsel advises me that there is no controlling legal authority or case that says that there was any violation or law whatsoever in the manner in which I asked people to contribute to our re-election campaign."
Gore’s remarkable choice of words was designed to dance around this problem: A plausible case can be made that Gore’s high-pressure fund-raising calls from his White House office amounted to federal felonies, punishable by up to three years in prison.
But a plausible case can also be made that these calls were legal, if sleazy and perhaps unprecedented. The legal question turns out to be surprisingly tricky, as does the related question (touched on in my column last week, "Janet Reno’s Burden of Proof," Page 21) of whether the attorney general should seek an independent counsel to determine whether to prosecute Gore.
The relevant statute, 18 U.S.C. §607, makes it "unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 [FECA] in any room or building occupied in the discharge of official duties by any person mentioned in section 603," which in turn mentions (among others) "officer[s] or employee[s] of the United States."
This broad language appears on its face to cover what Gore did: The vice president is (the argument goes) both a "person" and an "officer or employee of the United States"; his White House office is thus a "room… occupied in the discharge of official duties by" such an officer, he admitted on March 3 that (while using a nongovernment credit card) he had made "telephone calls… from my office in the White House [in which] I asked people to contribute to our re-election campaign"; and FECA defines "contribution" to include money given "for the purpose of influencing any election for federal office."
To make things worse, a 1979 memorandum by the Justice Department’s Office of Legal Counsel held that an earlier version of §607 applied to "solicitations of private citizens" by (among others) the president and vice president. And an April 27, 1995, memorandum to White House staffers by then White House Counsel Abner Mikva stated: "Campaign fundraising activities of any kind are prohibited in or from government buildings…. This means that… no fundraising phone calls or mail may emanate from the White House." Similar memos had been circulated by Mikva’s predecessors.
But Gore, apparently deciding that these rules did not apply to him, leaned on fat cats by phone from his White House office. In his March 3 press conference, Gore asserted that "I understood what I did to be legal and appropriate." But he has not claimed that he consulted legal counsel at the time.
Clearly, this is a man who was more than willing to cut legal corners for the sake of his own political advancement and convenience-and to say afterward that "I’m proud of what I did," even while vowing never to do it again.
But is Gore guilty of a felony? I would say no, on the grounds that no sensible prosecutor would bring a case against him, and the courts should not let such a case go forward. One reason is that Gore’s phone calls did not clearly violate the apparent intentof §607. Another is that the letter of the statute should be bent somewhat to accommodate constitutional concerns.
The least convincing of the arguments in Gore’s favor may be the one upon which Reno implicitly relied in her April 14 letter refusing to seek an independent counsel to investigate Gore (among others): that §607 technically bars only the solicitation in federal offices of "contributions" of "hard money," not "soft money." But as discussed in my column last week, this at best elevates form over substance because Gore was clearly seeking money primarily for the purpose of re-electing the Clinton-Gore ticket; that suggests it was hard money in substance, even if classified as soft money in form.
Beyond that, Gore himself has never denied asking contributors explicitly for "hard money." Even today, his press office won’t say whether he did. And five urgent memos from Harold Ickes to Clinton and Gore in the summer of 1996 stress the need for them to continue "very intensive fundraising activities," for the specific purpose of raising millions more in " ‘Federal’ dollars"-that is, hard money-from "major donors" to meet the Democratic National Committee’s advertising budget. Gore’s office won’t comment on whether (as Gore has implied) he had made all his fund-raising calls before then. Has the Justice Department looked into that? What has it done to test its assumption that Gore was dialing for "soft" dollars only?
The more persuasive arguments for Gore (unmentioned in Reno’s letter) were outlined in a March 10 New York Times op-ed by former Clinton counsel Jack Quinn, now of D.C.’s Arnold & Porter: Section 607 should not be construed to criminalize soliciting campaign money by phone (at private expense) from government offices-especially if the caller is the president or vice president.
Such an exemption is warranted because it is hard to discern any statutory purpose that would be served by construing §607 to bar making from the White House (at private expense) telephone solicitations that would be perfectly legal if made by the same official from DNC offices or, say, a Holiday Inn.
Section 607’s main objective is to protect government workers from being squeezed in their offices for contributions. A secondary objective appears to be to prevent solicitations of private individuals when they visit government offices because the majesty of such offices could be used to create a coercive atmosphere and should not itself be degraded by political fund raising.
These objectives arguably ate not offended when the solicitations are by phone and the solicitee presumably does not know where the solicitor is calling from. A bit of support for this interpretation can be derived from a 1908 Supreme Court precedent, United States v. Thayer, upholding a conviction under an earlier version of the statute on the ground that the "solicitation was in the place where the letter was received" (which was a government office). A bit more support can be derived from the Justice Department’s apparent (and appropriate) decision not to prosecute Sen. Phil Gramm (R-Texas) after he admitted making telephone solicitations from his Senate office.
In addition, a respectable argument derived from the Constitution’s separation of powers can be made that §607 should be construed as inapplicable to the president and vice president, who are explicitly exempted from the related civil provisions of the Hatch Act. (Mikva stresses that his memo was applicable only to the staff.)
The president and vice president are the only executive branch officials who run for re-election; they must raise campaign funds somehow; they live in government buildings, and would be put to some inconvenience if required by law to go elsewhere to make fund-raising phone calls; and they should be protected from undue congressional interference with their fund-raising efforts.
While the 1979 Justice Department memo says the president and vice president are covered by the statute, that conclusion is of questionable validity today, in light of subsequent statutory changes and the Supreme Court’s holding in a somewhat analogous 1992 case, Franklin v. Massachusetts, that the Administrative Procedure Act’s curbs on all federal "agenc[ies]" should be construed (contrary to that act’s plain meaning) as inapplicable to the presidency: "Out of respect for the separation of powers and the unique constitutional position of the President…, [w]e would require an express statement of Congress before assuming it intended the President’s performance of his statutory duties to be reviewed" under that law.
Would such considerations warrant a refusal by the attorney general to seek an independent counsel to investigate Gore’s phone calls even if he was seeking hard money? That’s a close call because it mixes an issue of law (what §607 means) that is properly within the attorney general’s purview with an issue of prosecutorial discretion (what cases to bring) that has been removed from her purview by the independent counsel statute.
Perhaps Reno should resolve the matter by stating, as a matter of policy, that Justice never has prosecuted (or so it appears)-and never will prosecute-anyone solely for being in a government office while making a fund-raising phone call, on the ground that such calls do not clearly violate §607. Such a policy statement, which, would be binding on any independent counsel, might make it pointless to seek one.
Amid these complexities, two things seem clear: Any good prosecutor (independent or otherwise) would quickly conclude that no §607 case should be brought on the basis of Al Gore’s phone solicitations. And Gore should not be proud of himself.