Before Judging Janet Reno, Take a Look at These 'Laws'

To give Attorney General Janet Reno her due, figuring out what is legal and illegal under the melange of federal campaign finance laws and their judicial interpretation is no piece of cake.

Take a concept as straightforward as a political contribution. The law says that no person can contribute more than $1,000 to a candidate for federal office in an election cycle - and nothing at all to a presidential candidate in a general election who has accepted public financing. The law even makes it clear that "contributions" include in-kind contributions - equipment, space, or transportation, for example.

Sounds simple enough. But the law isn't always what it says it is - it's what the courts say it is. And courts interpret laws not merely according to the written word, but in contemplation of constitutional constraints, legislative intent, and, occasionally, the judges' own predilections.

And so it turns out that there are many ways to contribute money that are not "contributions" at all. For example, a federal candidate might consider it a great contribution to his campaign if I buy a costly full-page ad in The New York Times. If I have done this on my own, without consulting the candidate's campaign, I have made an "independent expenditure" that Congress can't prohibit because of the First Amendment's guarantee of free speech.

Paying for the ad with a corporate check is a different story. Business corporations can't even make independent expenditures from their treasuries - a proposition once upheld by a US Supreme Court 5-to-4 vote. But if that ad removes the words of entreaty to vote for the candidate, it is probably unimpeachable "issue advocacy."

In my corporate capacity, I can also appeal to all the members of my protected class (shareholders and management personnel) to contribute as much as $1,000 apiece to any corporation's separate, segregated fund, or political action committee (PAC) - which can then contribute up to $5,000 to my candidate as well as engage in other independent expenditures and issue advocacy to support a candidate.

I can also contribute up to $20,000 to my candidate's political party in the expectation that the party will use the money for his or her benefit. The party has its own limit on how much it can contribute or spend in coordination with any particular candidate, but the Supreme Court recently declared that a party can spend all it wants in support of a candidate's campaign so long as it does so independently of the candidate and his or her campaign staff.

Then there is soft money - spent to influence the political process rather than expressly for the election or defeat of an identified candidate. Political appeals so funded can even include clearly partisan attacks against a candidate's record, so long as there's no exhortation to vote against anyone.

There is no limit on the soft money that can be accepted by political parties. Indeed, it is not even clear under current law that they are prohibited from accepting soft money from foreign nationals. As long as such money is spent only for issue advocacy, judges might hold that such transactions are outside the scope of federal regulations so long as they're not part of some explicit quid pro quo from government.

The hard money-soft money distinction also explains why any prosecutor would think long and hard before trying to prosecute Vice President Al Gore for making fund-raising telephone calls from his executive office. Even if Sec. 607 of Title 18 of the US Code, prohibiting the solicitation of political contributions on most federal property, is intended to apply to such solicitations of persons not present on the premises (a big if), so long as only soft money was being solicited, no crime was committed.

Since this regulatory structure appears to permit almost any kind of electioneering imaginable, it's hard to conceive how anyone could actually violate the law.

The most legally vulnerable practice of both the Clinton and Dole campaigns in 1996 was their direction of their parties' expenditures of soft money, which the candidates themselves helped raise. If the expenditures were a part of the electoral strategies of the candidates themselves, then they really were not used for mere issue advocacy or to influence the political process. In accepting public financing, those candidates and their campaigns were barred from outside fund-raising on behalf of their campaigns. But if formally accused, they will surely argue that the rules of the game are so vague that they cannot be held culpable.

So before we judge Janet Reno too harshly for her seeming unwillingness to enforce the rules of the game, let us at least be aware of the impossible hand she's been dealt. Even Hoyle would probably throw up his hands in despair.

* Frank Askin is professor of law at Rutgers School of Law in Newark, N.J.

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