(Christian Science Monitor, 12/31/97) Reno's Dilemma: Campaign Finance Law, According to Hoyle by Frank Askin* To give Attorney-General Janet Reno her due, figuring out what is legal and illegal under the melange of federal campaign finance regulations and their judicial interpretation is no piece of cake. Take a concept as straight-forward as a political contribution. The law says that no person can contribute more than one thousand dollars to a candidate for federal office in an election cycle -- and nothing at all to a presidential candidate in a general election who has accepted public financing. The law even makes it clear that contributions include in-kind contributions, for example, equipment, space or transportation. Sounds simple enough! But the law isn't always what it says it is; it is what the courts say it is. And courts interpret laws not merely according to the written word, but in contemplation of constitutional constraints, legislative intent and, occasionally, the judges' own predilections. And so it turns out that there are many ways in which a person can contribute money to the election of a federal candidate which are not contributions at all. For example, a candidate might consider it a great contribution to his campaign if I buy a full-page ad in the New York Times, costing many thousands of dollars, extolling the candidate's virtues and urging all the readers to go out and vote for that candidate on election day. But, it turns out, if I have done this on my own without consultation with the candidate's campaign, I have made no contribution at all. What I have made is an independent expenditure which Congress cannot prohibit (even if it wants to) because of the First Amendment to the Constitution. Now, if I pay for the ad with a corporate check that's a different story. Business corporations cannot make even independent expenditures from treasury funds -- a proposition once upheld by a slim 5-4 vote of the United States Supreme Court. On the other hand, if that ad removes the words of entreaty to vote for the candidate, it is probably unimpeachable issue advocacy. Because of the constitutional protection for freedom of speech, the courts have severely limited Congressional authority to regulate political campaigning to the express advocacy of the election or defeat of identifiable candidates. In my corporate capacity, I can also appeal to all of the members of my protected class (shareholders and management personnel) to contribute as much as a thousand dollars apiece to my corporations' separate segregated fund (PAC), which can then contribute up to $5,000 to my candidate as well as engage in the other forms of independent expenditures and issue advocacy which may support the candidate's campaign. In addition to me and my corporation making direct contributions to my favored candidate and spending an unlimited amount on independent expenditures in his/her behalf, and engaging is unrestricted issue advocacy which might redound to the candidate's benefit, I can also contribute up to $20,000 to my candidate's political party in the expectation that the party will use the money for his/her benefit. Now the party has its own limit on how much it can contribute or spend in coordination with any particular candidate, but the Supreme Court has recently declared that a political party can spend all it wants in support of a federal candidate's campaign so long as it does so independently of the candidate and his/her campaign staff. Then there is soft money. Soft money is that which is spent to influence the political process other than for the express advocacy of the election or defeat of an identified candidate. It even includes clearly partisan attacks against a candidate's record which end with a slogan like "Call Candidate X's office and tell him to clean up his act." So long as there is no exhortation to vote for or against anyone. Although individuals and corporate PACS can each give only $20,000 of hard money per year to a political party, there is no limit to the amount of soft money that can be given to parties. Indeed, it is not even clear under current law that political parties are prohibited from accepting soft money from foreign nationals -- the so-called China connection that has so roiled the political waters of late. The prohibition of political contributions by foreign nationals is contained in the same statute which has been interpreted to apply only to money spent for hard money purposes (although unlike other restrictions on contributions, that section also reaches money spent on state and local elections). Thus, as long as such money is spent only for so-called issue advocacy, judicial decisions might suggest that such transactions are outside the scope of federal regulations so long as not part of some explicit quid-pro-quo for governmental favor. The same hard money-soft money distinction also explains why any prosecutor would think long and hard before trying to prosecute Vice-President Al Gore for making fund-raising telephone calls from his Executive office. Even if Sec. 607 of Title 18 of the U.S. Code, prohibiting the solicitation of political contributions on most federal property is intended to apply to such solicitations of persons who are not on the premises (a big IF), so long as only soft money was being solicited, no crime was committed. Since this regulatory structure would appear to legally permit almost any kind of electioneering imaginable, it is hard to conceive how anyone could be so stupid as to actually violate the law! The most legally vulnerable practice of both the Clinton and Dole campaigns in 1996 was their campaigns' direction of their parties' expenditures of soft money which the candidates themselves had helped to raise. As a practical matter, it would seem that if the expenditures were a part of the electoral strategies of the candidates themselves, then they really were not used for mere issue advocacy which is constitutionally exempt from regulation. In accepting public financing, those candidates and their campaigns had agreed not to engage in outside fund-raising on behalf of their campaigns. But if formally accused, they will surely argue that the rules of the game are so vague that they cannot, consistent with due process of law, be held culpable. So before we judge Janet Reno too harshly for her seeming unwillingness to enforce the rules of the game, let us at least be aware of the impossible hand she's been dealt. Even Hoyle would probably throw up his hands in despair. # * Frank Askin is professor of law at Rutgers School of Law, Newark, and the author of the recently published "Defending Rights: A Life in Law and Politics" (Humanities Press). He has run for Congress twice and has served as special counsel to several Congressional committees.