If politics makes for strange bedfellows, so too it seems do political prosecutions.
John Edwards, whose trial for campaign finance violations begins today, got some unusual support from the ultra-conservative National Review, which editorialized against the prosecution of the former Democratic senator and presidential running mate. Edwards allegedly took nearly a million dollars from rich friends to support his mistress and their illegitimate child and keep the affair secret from his wife. The government dubiously claims these were illegal campaign contributions to help his bid for the Democratic presidential nomination in 2008. “To prosecute him under campaign-finance rules in a situation in which no campaign funds were used and no campaign expenses paid seems a stretch,” the editorial declared.
The National Review editorial was reminiscent of the Washington Post editorial supporting Republican Tom DeLay’s defense in his Texas criminal trial for campaign-related money laundering violations. The Post, no friend of the tough, former House majority leader known as “The Hammer,” said DeLay’s actions in using a state political action committee and the Republican National Committee to funnel corporate funds to Texas state candidates “was a clear end run around the Texas election law. It is less clear, however, that this behavior fits the definition of money-laundering or should be prosecuted and punished using that criminal offense.” A jury nonetheless convicted DeLay, and his case is currently on appeal.
And then there are the 100 former state attorneys general from both parties who have filed a brief urging the Supreme Court to take up the legality of the criminal conviction of former Alabama governor Don Siegelman for “honest services fraud.” As the Birmingham News explained, “A federal jury in 2006 convicted Siegelman and HealthSouth founder Richard Scrushy of federal funds bribery on accusations that Siegelman sold a seat on a hospital regulatory board to Scrushy for $500,000 in donations to Siegelman's 1999 lottery campaign.” But there was never any evidence Siegelman and Scrushy had an explicit agreement to exchange the campaign contributions for the seat. The attorneys general explained in their amicus brief that “The conviction of public officials under a charge of ‘honest services’ mail fraud, conspiracy to commit that offense, or bribery, based on an allegedly ‘corrupt’ agreement without the showing of an ‘explicit’ quid pro quo linkage between the official action and the campaign contribution, will have an impermissible chilling effect on how political campaigns are run throughout the country.” Conservative George Will also came to the former Democratic governor’s defense: “In the law’s current, contradictory condition, the line is blurry between the exercise of constitutional rights and the commission of a crime.”
It is no wonder then that liberals and conservatives have rallied around these politicians, despite the fact that most wouldn’t win any popularity contests. (Edwards was cheating on his wife while she had breast cancer, and then later lied about it on national television.) Each of these cases, which feature prosecutors relying on novel theories to criminally prosecute prominent political figures, raises two distinct dangers.
First, if the law is murky, prosecutors with a political agenda could use criminal prosecutions to take down their political enemies. Siegelman, Edwards, and DeLay each claimed that the prosecutions against them were politically motivated: Siegelman and Edwards blame Bush administration Justice Department prosecutors, while DeLay blames former Travis County District Attorney Ronnie Earle, a Democrat.
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
Thanks to expansive federal law, the threat of criminal liability hangs over all elected officials, federal, state, and local. As professors Rick Pildes and Sam Issacharoff explain in their amicus brief in the Siegelman case, “Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600.”
In our privately funded, cash-rich elections, politicians have no choice but to seek campaign contributions from wealthy individuals. Many of the people who give contributions will want something in return, if nothing more than access to make their case on issues of politics or policy. Politicians and contributors need to know what conduct falls on one side of the line and what falls on the other.
Campaign finance laws can be incredibly complex. Some critics have analogized the rules to interpreting the tax code. There are lots of things we can do about the laws’ complexity and the temptation of elected officials to do the bidding of contributors: public financing of elections; a beefed-up Federal Election Commission to investigate civil violations of the law; strong, clear contribution limits without loopholes; and straightforward criminal laws that indicate when a campaign contribution constitutes a bribe—which the Supreme Court might give us if it takes the Siegelman case.
But criminal liability for campaign finance violations should be off the table except in the most concrete and egregious cases. Otherwise, we risk deterring not just the unscrupulous, but also those who want to exercise their First Amendment rights by running for public office or supporting the candidates whom they believe will advance the public good. Even if John Edwards doesn’t deserve our sympathy, his conviction won’t do us any good.