Scandal Hidden in Plain View

Forget about whether Vice President Al Gore’s dialing for dollars from the White House violated the law against asking for dollars in the White House, and whether the Riadys or Johnny Chung were agents of the Chinese government, and whether Web Hubbell got hush money. Forget about the what-did-the-president-know-and-when-did-he-know-it game, and about who handed fat checks to whom in the White House, and about the Lincoln Bedroom, and all those coffees, and the similar access-peddling by Republican bigwigs.

Pause, for a moment, in the search for smoking-gun evidence about how they raised the money, and focus on how they spent it The evidence of high-level lawlessness has been sitting in front of us for months, hidden in plain view.

As detailed by Common Cause, it consists of essentially undisputed accounts of what look very much like deliberate, multimillion-dollar violations (or at least evasions) of campaign spending and contribution limits, directed by President Clinton personally and by others at the highest levels of both the Clinton and Dole campaigns.

The presidential candidates and their agents used the Democratic National Committee and the Republican National Committee as totally controlled cash conduits to finance unprecedentedly costly television advertising promoting Bill Clinton and Bob Dole. They thereby smashed, by tens of millions of dollars, the post-Watergate ceilings on spending by publicly funded presidential candidates, while also flouting (among other laws) the much older ban on using corporate and labor union money in federal election campaigns.

In so doing, the president, his aides, and their Republican counterparts relied upon legal ratiocinations that-while not without support in the convoluted campaign finance case law, and while perhaps sufficient to ward off prosecution for ”knowing and willful" crimes-make a complete mockery of the campaign finance laws.

Common Cause laid out the facts and the law last October, in a cogently reasoned, 41-page letter to Attorney General Janet Reno, calling for appointment of an independent counsel to decide whether criminal prosecutions were warranted by "the most massive violations of the campaign finance laws since the Watergate scandal." The group asserted that:

the Clinton and Dole [campaign] committees massively violated the primary election spending limits they had each agreed to as a condition of receiving taxpayer funds [and] massively violated the contribution prohibitions and limits by financing their ad campaigns in part with millions of dollars of ‘soft money’ funds … includ[ing] corporate and labor union contributions, and large contributions from individuals in excess of federal contribution limits.

Among those who concur with this analysis is Harvard law professor Philip Heymann, who was President Clinton’s own first deputy attorney general. He and Common Cause base their legal conclusions on essentially undisputed reports by Bob Woodward (in The Washington Post and his mid-1996 book, The Choice) and by others about how the Clinton and Dole campaigns raised and spent millions in soft and hard money alike through the DNC and the RNC. These reports have now been confirmed-especially as to the president’s personal role in directing DNC spending-by Dick Morris, who masterminded the president’s re-election strategy, in his book, Behind the Oval Office:

[T]he key to Clinton’s victory was his early television advertising [starting in July 1995]… In 1996, the Clinton campaign and, at the president’s behest, the DNC spent upwards of $85 million on ads… The president became the day-to-day operational director of our TV-ad campaign. He worked over every script, watched each ad, ordered changes in every visual presentation, and decided which ads would run when and where.

Under the laws providing for partial public funding of presidential campaigns, both Clinton and Dole agreed in writing, as a condition of receiving public funds, to abide by overall spending limits of $37 million (obtained through individual contributions of up to $1,000 and federal matching grants) during the primary period, and $62 million (all public money) during the general election period.

In addition, it has long been illegal for any candidate for the presidency or Congress to accept money from any corporation or labor union to be spent "in connection with" any election. It is also illegal for any candidate to accept more than $1,000 from any individual for any federal primary or general election, or for a national political party to accept more than $20,000 a year from any individual.

These limits have been circumvented over the years by ever bolder exploitation of the "soft money" loophole, which allows state and local political parties to use unlimited corporate, union, and individual contributions to finance party-building activities (as distinguished from election campaigns), and by supposedly "independent" spending by political parties (among others) in support of their candidates. Some circumvention may be inevitable in light of the artificiality of the statutory requirement that parties segregate their activities from the campaigns of their leaders.

In 1996, both the Clinton and Dole campaigns expanded loopholes to new extremes, effectively wiping out all limits on presidential campaign spending, and pouring corporate, union, and huge individual contributions into the campaign without restraint.

To finance his unprecedented early advertising campaign during the primary period, Clinton and his campaign shattered the $37 million limit to which he had agreed and spent at least $34 million more, including at least $22 million in soft (mainly corporate and union) money, according to Common Cause.

Similarly, the Dole campaign, which had spent almost all its $37 million allotment for the primary period long before the general election campaign began, stayed on the air in the interim by using the RNC and state parties to spend at least another $14 million, including $9 million in soft money, on ads that were light on issues and heavy on Dole’s background and character.

In both cases, the DNC and the RNC technically received the contributions and sent them to their state and local counterparts, which wrote the checks, for what they called "issue advertising." But the money was raised in large part by the presidential candidates (and Vice President Gore); the content, timing, and placement of the ads were directed by the presidential candidates and their own campaign staffs; these "party" ad campaigns were managed by the same consultants who were on the presidential campaign payrolls; they were targeted to presidential battleground states; the content focused on Clinton and Dole; and the overriding purpose was to win the presidential election.

As Woodward wrote of the Clinton operation: "Of course the distinction between Clinton-Gore money and Democratic Party money existed only in the minds of the bookkeepers and legal fine-print readers. It was all being raised and spent by the same people-Clinton, Gore, Morris and the campaign apparatus."

What all this boils down to, according to Professor Heymann (a member of the Common Cause board), is this: If the tens of millions of dollars raised and spent by the party committees were [presidential] campaign contributions and expenditures, a number of laws were flagrantly and indisputably violated. And these were [presidential] campaign contributions and expenditures, because it’s clear that the [Clinton and Dole] campaigns solicited money to be given to the national parties for the presidential campaigns, and then directed and controlled the expenditure of that money, in terms of designing ads and placing and timing them. The fact that the parties received the checks from contributors and paid and wrote checks to ad agencies doesn’t affect the result.

Morris’ book does suggest that, while the ultimate goal was Clinton’s re-election, the advertising served other purposes too: "The key was to advertise on legislative issues only, not to promote Clinton’s candidacy." Morris adds that Clinton campaign and DNC lawyers "said the law permitted unlimited expenditures for such issue-advocacy" ads."

Attorney General Reno’s oblique comments on all this intimate that she may be receptive to such legalistic dodges. But in Heymann’s words, "To accept the claim that these were issue ads or independent expenditures, when the control by the presidential campaigns was so complete, would mean that we will never be able to prevent corrupting influences in presidential elections." That’s because presidential candidates could always exploit the same rationales to take taxpayer dollars while essentially ignoring their own commitments to limit their spending, as well as virtually all other limits on the raising and spending of private money.

The ineluctable lesson is that one of three things should happen: The laws should be taken seriously and enforced, via criminal prosecutions by an independent counsel; they should be junked as a sham, and the goal of limiting the corrupting influence of money on politics should be abandoned as an illusion; or they should be overhauled to impose realistic limits with real teeth.