The presidency cannot be separated from politics, but the political uses of the presidency by the Clinton administration strike many people as abusive. There are calls for a special prosecutor. What behavior would he or she prosecute? What exactly is the law about politicking and the presidency?
The law most often cited is the Hatch Act (1939). The law passed following several big corruption cases involving the burgeoning post-New Deal bureaucracy, and was aimed at the civil service. But by its terms, it applies to almost anyone on the U.S. government payroll. Only the president, vice president, and appointees requiring Senate confirmation (such as Cabinet secretaries) are exempt. The original Hatch Act forbade government employees to raise funds, give partisan public speeches, or volunteer for any candidate or party. In 1993, with President Clinton's backing, the act was amended to allow all these things, so long as they are done outside the workplace and government employees don't exploit their positions for political purposes.
Enforcement of the Hatch Act was always erratic, and there was no serious attempt to apply its general ban on politicking to the White House. The 1993 amendment specifically allows employees of the Executive Office of the president to engage in "political activity." The law defines political activity to include anything campaign-related--organizing events, planning party strategy--except fund raising, which it completely prohibits. These same limits apply to Cabinet secretaries and all other presidential appointees approved by the Senate. The president's campaign or party must reimburse the government for the use of its offices and resources.
The Clinton administration imposed additional Hatch-like regulations on itself. White House employees can work on their "political" projects only if they put in 40 hours' work over the course of the week on "official" business. And the White House installed separate phone and fax lines for political work. But these rules are not legally binding. And in practice, such distinctions between "official" and "political" White House work are almost meaningless.
Alexis Herman, who was in charge of White House "public liaison," is the only member of the Clinton administration now under investigation for violation of the Hatch Act. Her nomination to be secretary of labor is in trouble. The allegation: Herman headed a working group that planned strategies for hyping the president to different ethnic groups. She did wrong, the argument goes, by using government computers to draw up campaign strategy.
According to the White House, Herman's work complied with Hatch: The Clinton campaign reimbursed the government for the work Herman did on the memos she wrote. Besides, the activity under investigation is simply part of the job description of public liaison, which is supposed to "outreach" with "different constituencies" to improve their relationships with the White House. Clintonites say the public liaisons under Reagan and Bush did much the same things. For instance, Bush's Liaison Bobbie Kilberg spent much of her time wooing the religious right.
Republicans point out that, unlike Herman and George Stephanopoulos, Reagan and Bush aides (such as James Baker and Robert Teeter) resigned from the administration to work on re-election campaigns. But these resignations were legally required under the rules of the pre-'93 Hatch Act, which no longer apply.
Other possible Hatch Act violations: Newsweek reports that Deputy Chief of Staff Harold Ickes solicited campaign contributions, despite Hatch's prohibition on fund raising. And a White House database may have been used by Democratic Party fund-raisers without reimbursement to the government as required.
Legal questions are also raised by allegations that the administration granted access to the White House to elicit donations. The New Yorker's Jane Mayer uncovered examples of big donors being invited to the White House tennis court and movie theater. The New York Times this week quoted Democratic fund-raisers who say they attracted donors with promises of invitations to the White House, including coffees and overnights in the Lincoln bedroom.
These sorts of perks are potentially illegal for two reasons. First, election laws bar the solicitation of money (by both employees and nonemployees) in all federal office buildings--the White House included. In these cases, Republicans argue, donors received White House invitations to entice them to give more money. Even if the attendees were never explicitly asked to open their checkbooks on these visits, the administration's intention was obvious. The language of these laws, however, only forbids explicit appeals for donations. Ickes apparently made calls to donors from his government office, but there is no evidence so far that anyone else solicited funds in a federal building.
Second, campaign-finance and anti-bribery laws prohibit granting government favors in exchange for political donations. The law specifically forbids favoritism in awarding government jobs and contracts. More ambiguously, it proscribes "special access" to government officials. Like the Hatch Act, however, these laws have never been enforced against the White House.
Preferential treatment for big donors is nothing new. Eleven out of 249 $100,000-plus donors to the Republican National Committee received ambassadorships from the Bush administration. "Team 100" donors also received special policy briefings from administration officials and invitations to White House dinners. Many of the members had matters pending before the administration.
President Clinton's response to charges of selling "special access"--that these donors are also his friends and he has the right to have conversations with his friends and invite them to his home--is disingenuous, but might be hard to refute in court.