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123456
from: Phillip Heymann
to: Bruce Fein

Posted Thursday, Nov. 13, 1997, at 3:30 AM ET

Here's the situation, stated as clearly as I know how. The issues surrounding campaign finance in 1996 fall into three categories: partisan politics, democratic values, and legality. Our subject is supposed to be the last, but in your excitement, you keep scrambling the three.
In terms of the first, partisan Republicans would very much like it to appear that President Clinton and Vice President Gore behaved improperly, in sharp contrast to their Republican rivals. The clear distinction hoped for isn't there.
In terms of democratic values, the critical fact is that access--and the influence that goes with it--was purchased in the legislative and executive branches by large contributors from both parties, on a scale and in a manner unimagined for a quarter of a century. The scale was made possible by pretending that contributions solicited and then controlled by candidates to advance their campaigns were really given to political parties to discuss issues. The Justice Department should have looked right through this dodge, but it has taken the position that these were unregulated issue ads by political parties, not regulated campaign ads.
Finally, there is the question of whether any of this is legally a crime--the question you and I were supposed to discuss. For that, the statutes have to be tolerably clear and, for campaign-contribution crimes, the law requires the candidate to know he was violating the law.
You keep looking for new and unprecedented uses of old statutes in order to prosecute Democrats. I keep reminding you that it is Democrats and Republicans; that (so long as the campaign-contribution rules are obeyed) the general affront to democratic values of selling access has, for obvious reasons, never been made a crime by representatives, senators, and presidents, who benefit immensely from the practice; and that there is a long and important tradition of not surprising people by prosecuting them for conduct that they reasonably believed Congress to have left legal.
There are, of course, federal bribery and gratuity laws which apply whenever an exercise of federal authority is explicitly tied to the receipt of benefits by a federal official. Neither these laws nor any others have ever been applied to hinting, promising, or giving access or social invitations to campaign contributors.
The additional rules, which are intended to deal specifically with the problem of the exchange of access for campaign contributions, prohibit contributions to federal campaigns by corporations and unions, and limit the amount that any individual can give in any federal election. My belief that the attorney general is making a legal mistake and that these rules were in fact flagrantly violated by both parties in 1996 does not mean that the actions were necessarily criminal. The campaign-contribution laws, like the federal income tax, require the candidate to know that he is violating the law before he can be found criminally responsible. That's a factual question.
Finally, the same problem of uncertainty about the meaning or scope of a statute makes any prosecution for soliciting contributions by phone from a government office impossible. The statute is over a hundred years old, and it has never been used for that purpose. Several senators have solicited or received funds in their offices, and none have been charged with a crime. It is close to impossible to imagine why any legislator would care whether a phone call for contributions was made from the upstairs living quarters of the White House (where it is indisputably legal) or from an office area downstairs. Since the recipient of the call has no way of knowing where the phone call is made from, there is no special pressure, nor is there any significant misuse of government property if toll charges are paid separately, and not from government funds.

dialogues
entries
123456
from: Phillip Heymann
to: Bruce Fein

Posted Thursday, Nov. 13, 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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