On Wednesday evening, news broke of yet another instance in which the Obama administration dangled a job offer to a Democratic official in hopes of luring him out of a primary Senate race. The Republican Party cried foul, declaring it seedy politics at best and bribery at worst.
And yet, on the most fundamental question -- whether laws, in fact, were broken -- it remains a non-story. At least according to the chief ethics lawyer for the Bush administration.
"I don't think it violates government ethics," said Richard Painter, now a professor of law at University of Minnesota. " I don't think it's fair for the voters for the White House to intentionally try to take someone out of the running... I don't like it. But does it violate government ethic rules under the Hatch Act? That's a real stretch, and the bribery statute's off the table, that doesn't work at all."
In an interview with the Huffington Post, Painter said that the while the floating of three administration positions to Colorado Democratic Senate candidate Andrew Romanoff is objectionable in obvious ways, claims that it violated the law are baseless. For starters, if Romanoff had taken the position, he would have effectively been prohibited from running for office. The federal government may have affected the course of the campaign by offering him the post. But it didn't meddle in the campaign itself (an important legal distinction).
"The problem with the so-called bribery theory, or quid pro quo theory, is that automatically if you take those jobs, any full-time government job, you're prohibited from running for public office under the Hatch Act," said Painter. "So it's a necessary condition subsequent to taking the job... you have to withdraw from the Senate race. So I don't see how you could describe that as a quid pro quo at all."
Painter described the Obama administration's conduct in this case -- as when it offered an advisory position to Rep. Joe Sestak (D-Penn) to get him to drop his bid for the Pennsylvania Senate seat -- as traditional politics. The outrage coming from the GOP, he said, is largely drummed up and insincere.
"This is just swapping playbooks," he said, noting that Democrats would complain about similar supposed transgressions when they were out of power.
Having served under the Bush administration, Painter's dismissive take on legal implications of the Sestak job offer was held up by Democrats as proof that the story is more smoke than fire.
That said, Painter doesn't absolve the White House entirely. He called the meddling in primary elections a disservice to the voters who deserved choices. And he worries that some hiring decisions within the administration would become overly politicized.
"The White House should wait for the voters to decide and they could hire a loser if they want to hire the loser and the merits justify it," he said, "and there are plenty of other good people out there in the meantime. And that's what the White House ought to do out of respect for the voters. And that's what I wished they'd do here, but we know that that isn't what happens."
But the former Bush lawyer suggested that the impetus to change the practice of floating job offers isn't necessarily on the White House alone. The same congressional Republicans who object to the job offers to Romanoff and Sestak have the power to produce legislation to make such ploys illegal.
"Two laws would make things better," Painter said. "The Executive Branch [could] not be allowed to contact a declared candidate for Congress about a job until the election is over. And Congress could tighten up the Hatch Act to prohibit all partisan political activity by White House staff and other Administration officials with the exception of the two elected officials in the Executive Branch, the President and Vice President. This would at least get people like the Chief of Staff away from the political fundraisers and other meetings where these types of schemes are hatched (no pun intended!)."
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