In 1993, Senator Patrick Daniel Moynihan (D-N.Y.) wrote an article that described how U.S. society was "defining deviancy down." Nowhere is this more evident than in the conduct of our national elections which are increasingly lawless.
The recent Supreme Court decision (Citizens vs. FEC) worsens an already rotten campaign system by allowing corporations and unions to put unlimited funds into our elections. And as the Court dissenters to that decision and President Obama make clear, foreign corporations now have the right to participate in the U.S. electoral process.
The response by the President and the Congress is to encourage stricter reporting by contributors and lobbyists. Also, several Members of Congress are preparing to introduce legislation that would prohibit political contributions from foreign corporations.
Their efforts will fail because this Supreme Court will rule these laws and regulations to be unconstitutional.
If the President and Congress seriously want to reform U.S. campaign finance laws, they must first amend the Constitution and empower Congress to regulate the financing of U.S. elections. Once Congress has that power, which the Supreme Court has ruled it does not now possess, we can fight out the details of our campaign laws.
Equally important, the machinery to enforce the campaign laws requires changes to ensure that those who administer those laws do their duty. The existing structure encourages corruption because the oversight, controls and penalties are a sham.
In 1998, I wrote of the failure of the existing enforcement systems. What existed then, exists today. The issue, moreover, is not that of any individual. Rather, it is a systemic failure requiring a systemic solution.
My earlier article makes clear just how far our political deviancy had fallen by 1998. It is even lower today.
by Pat Choate
December 18, 1998
In the 1930s, Broadway columnist Damon Runyon wrote that "the race may not go to the strong and swift, but that's the way to bet your money." Certainly, it is how to bet on contemporary political races. The Center for Responsive Politics, a Washington-based organization that tracks campaign contributions, reports that almost 95% of House and Senate races are won by the candidate spending the most. Most of that money goes for advertising.
Fund raising and the investigations
The Runyon maxim works in presidential races as well. Most recently, political consultant Dick Morris advised President Clinton to begin his political ads in early 1995, both as a means to discourage intraparty competitors and to raise the president's ratings. To fund what effectively became a year and-a-half advertising blitz, Clinton and Vice President Al Gore pressed themselves into service as fund-raisers.
In the process, the Clinton-Gore team did everything but mortgage the White House china. For their money, contributors could get an audience with the president in a small group, a night in the Lincoln bedroom, a swim in the White House pool, breakfast or a round of golf with the president, a ride on Air Force One and special access to administration officials.
The Morris plan worked. No Democratic challenger emerged, and the early ads enabled the Clinton-Gore campaign to skate to an easy victory. Unfortunately, what Clinton and Gore did was illegal.
To secure public financing, both men signed an agreement with the federal government by which they promised to sharply limit private contributions. To violate that pledge is a felony offense. But as with the Monica Lewinsky affair, where normal words can conveniently mean anything the president wants, Clinton and Gore construed the clear language of campaign law to mean something else.
They devised a plan to skirt the law: Tell contributors to give money to the Democratic National Committee (DNC) for ads so the expenditures do not count against the Clinton-Gore public-financing limits. Such "issue" ads are supposed to promote the party, not its presidential candidate, and it is illegal for the Clinton-Gore campaign to coordinate its ads with those of the DNC or to write the copy for all the ads. But never mind all that.
Common Cause learned of Clinton's deeds by examining his campaign-finance reports. On Oct. 6, 1996, the group forwarded Attorney General Janet Reno a report that detailed massive violations of election law by the campaigns of both Clinton and Republican nominee Bob Dole. Common Cause requested the appointment of an independent counsel.
In their report, the Common Cause investigators traced the trail of money, its uses and the illegality of the scheme. The only error in the Common Cause report was its low estimate of the scale of violations. The report estimated $22 million of illegal spending by Clinton and $9 million by Dole. The report estimated $22 million of illegal spending by Clinton and $9 million by Dole. Subsequent investigations revealed more than $42 million of illegal expenditures by Democrats and $17 million by Republicans.
In 1997, Congress investigated the campaign-finance abuses, but its probes disintegrated under partisan attacks from both Democrats and Republicans. Neither party wanted a true investigation or campaign reform. The uncovering and punishing of campaign fraud, therefore, was left to others.
A pattern of conflict and inaction
Under present law, violations of campaign laws can be punished in any of three ways. The first is for the Justice Department to act. The second is for the attorney general to ask a three-judge panel to appoint an independent counsel. The third is for the Federal Election Commission (FEC) to audit a campaign, investigate for violations, rule that violations did occur, impose civil fines and refer any criminal activities to the Justice Department.
Yet for those options to be meaningful, the attorney general and FEC commissioners must be willing to do their duty. Attorney General Janet Reno and the FEC have refused to proceed. Early in 1997, Reno decided to hold any investigations of the Clinton-Gore campaign inside the Justice Department. After almost a year's work, she reported no progress. In late 1997, the FBI director said it was a conflict for Reno to investigate her boss and, therefore, the law automatically required her to appoint an independent counsel.
As difficult as it may be to believe, Reno's ability to twist the English language equals that of her boss, enabling her to rule that she was not in conflict. Thus, she kept the investigation under her control.
Because of the criticism of her internal investigation, however, Reno appointed another career prosecutor, Charles LaBella, to continue the probe. In mid-1998, LaBella also recommended appointment of an independent counsel. Again, Reno stubbornly rejected that advice.
Even as Reno stonewalled, FEC auditors examined the Clinton and Dole campaigns' records. In a 500-page report to the commission issued in November, the staff auditors found that both Clinton and Dole illegally coordinated supposedly independent ads run by their parties during the 1996 primaries.
The FEC staff auditors recommended that the Clinton campaign repay $7 million in taxpayer money and that the Dole campaign repay $17.7 million. But the staff report was met with hostility.
Republican Commissioner David Mason objected that the Dole ads would count against the general election limit, which requires a dollar-for-dollar payback of public funds, while the Clinton ads would be allocated against the primary campaign, which has a smaller payback.
Democratic Commissioner Karl Sandstrom complained, "This whole process has been unfair to the responding committees. I don't adopt the recommendations, I don't adopt the findings, and I don't adopt the legal analysis."
In a 6-0 vote, three Republicans and three Democrats rejected their own professional staff's recommendations and refused to collect repayments from either campaign. When push came to shove, FEC commissioners put party over duty.
What to expect in future elections
Ironically, the FEC vote and Reno's most recent announcement not to appoint an independent counsel came in the same week the House Judiciary Committee voted four counts of impeachment against Clinton. While civil perjury may or may not rise to a "high crime" against the nation, stealing an election with fraudulent campaign contributions certainly fits that definition.
Instead of punishing those who corrupt our politics, however, the attorney general and FEC have made a mockery of their jobs by subverting our campaign laws. The message they send is this: In future elections, anything goes.