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from: Phillip Heymann
to: Bruce Fein

Posted Tuesday, Oct. 28, 1997, at 3:30 AM ET

Dear Bruce Fein,

I don't know where you have been, but I have some very bad news for you. You seem to assume that offering access--and the influence that goes with it--in exchange for campaign contributions is a new Democratic invention and that it is criminal. You are wrong in all regards.
No less an authority than Senate Majority Leader Trent Lott has endorsed the very old tradition of selling access for contributions as "the American way." He's right about the history, wrong about the endorsement. The Republican leadership has fought any change in this unhappy tradition despite the valiant efforts of its own most respected senator, John McCain of Arizona.
The use of phony issue ads to pretend that money given to the party committees was not intended for campaigns (what else are the party committees for?) was a hallmark of both the Democratic and Republican senatorial and congressional committees in the 1996 election cycle. But the Republicans raised almost $48 million in this way, nearly twice the $26.5 million raised by the Democrats. If Roger Tamraz is the Democratic poster boy, his $300,000 looks small compared to the $3 million given in "soft money" by the Archer-Daniels-Midland Co. and its chairman Dwayne Andreas, in their successful effort to keep an ethanol subsidy alive and win tax benefits in the recent tax bill. The cigarette companies almost got a $50-billion break this way. Both parties have been selling access for campaign dollars. The Democrats are getting better at it, but have never done quite as well as the Republicans.
I have more news for you. Giving access in response to a campaign contribution is not a crime, for a number of reasons. Indeed, the statutes are very clearly written to avoid making it a crime; otherwise a very high proportion of Congress, as well as all our presidents, would have been jailed a long time ago. What I think was a violation of law--by both parties--was the solicitation of contributions from corporations and unions, and in forbidden amounts from individuals, on the patently phony grounds that the contributions weren't intended for the Republican and Democratic presidential campaigns. But here again both parties were at fault.
The only big difference between the parties was that the incumbent Democrats could offer more ego-flattering coffees and sleepovers, while the Republicans had to rely more exclusively on giving access to discuss issues of importance to the donor. If we could fund our campaigns by flattery of fat cats alone, it would be a lot better than selling access and influence.
Those are the real issues. The Republican leaders on the campaign-finance issue, including Sen. Fred Thompson, seem to agree with me that demanding prosecution for making phone calls from the wrong room in the White House (everyone agrees that fund-raising calls from the living quarters are fine) is silly partisan politics. Besides the fact that a century without a known prosecution makes an abrupt change unfair, it is bad law. There is only one intelligible purpose for the statute: to protect employees from being "hit up" on the job. There is no known purpose for caring where campaign-solicitation calls originate--a fact generally unknown to the person being solicited. You suggest that Section 607 of the statute protects the same interests as are protected by a business rule forbidding private use of company phones. This statute doesn't deal with phones but locations. Thus it can't be intended to make it a crime to impose wear and tear on government equipment or to make it difficult to reach the White House on the phone. Would your position change if a cellular phone was used? If not, your explanation of the statute doesn't hold up.

dialogues
entries
123456
from: Phillip Heymann
to: Bruce Fein

Posted Tuesday, Oct. 28, 1997, at 3:30 AM ET
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Bruce Fein served as associate deputy attorney general in the Reagan administration. He is a syndicated columnist at the Washington Times, and practices international and constitutional law. Philip Heymann served as deputy attorney general in the Clinton administration. He is a professor at Harvard Law School and the John F. Kennedy School of Government.
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