Reprinted from Roll Call (October 4, 2011)
Q: I heard that Citizens for Responsibility and Ethics in
Washington is lobbying for the dismissal of criminal charges against John
Edwards for allegedly violating campaign contribution laws in handling his
relationship with his former mistress. This took me aback because I have always
thought of CREW as an aggressive advocate for ethics in government. What is it
about the charges against Edwards that might be different?
A: On June 3, the Department of Justice filed an indictment against
Edwards for alleged violations of federal campaign finance laws. The primary law
in question is the Federal Election Campaign Act of 1971, which at the time
established a $2,300 limit on the amount that an individual could contribute to
a candidate each election. It also requires federal election campaign committees
to file periodic reports disclosing each person who contributed more than $200
to the committee within a given period.
The indictment alleges that Edwards conspired with others to violate these
laws by accepting and failing to disclose hundreds of thousands of dollars in
payments from Bunny Mellon and Fred Baron in order to “conceal Edwards’
extramarital affair” and his mistress’s pregnancy with his child.
According to the indictment, “Edwards knew that public revelation of the
affair and pregnancy would destroy his candidacy, by, among other things,
undermining Edwards’ presentation of himself as a family man and by forcing his
campaign to divert personnel and resources away from other campaign activities
to respond to criticism and media scrutiny regarding the affair and pregnancy.”
The case against Edwards hinges on whether the payments by Mellon and Baron
qualify as campaign contributions. If they do, Edwards could face liability
because he allegedly conspired to receive and not disclose the payments, which
far exceeded the annual limit per donor. If, however, they do not qualify as
campaign contributions, federal campaign finance laws would not be implicated at
all and there would be no basis for the charges against Edwards.
This is where CREW comes in. Last week, CREW made a court filing in support
of Edwards’ motion to dismiss the charges against him. CREW states that while it
“generally supports the Department of Justice (DOJ) against politicians charged
with corruption ... it took the unusual step of filing on the side of Sen.
Edwards because of the unique nature of the case.”
At issue, CREW says, is whether the government “can broaden the meaning of
‘contribution’ to prosecute Mr. Edwards for receiving and failing to report
payments that were made by two personal friends to his mistress to cover certain
of her personal expenses.”
CREW argues that the payments from Mellon and Baron do not qualify as
campaign contributions under federal election law. Federal law defines a
contribution to mean anything of value that is provided “for the purpose of
influencing” a federal election.
According to CREW, the purpose of Mellon’s and Baron’s payments was not to
influence an election. Rather, Mellon and Baron “made a series of third-party
payments to private individuals based on their pre-existing friendships with Mr.
Edwards and completely independent of his candidacy for president.”
CREW says Mellon’s and Baron’s purpose was to do a personal favor for Edwards
and notes that the payments continued even after Edwards ended his campaign.
Moreover, CREW argues, the payments cannot be considered campaign contributions
because federal election law would prohibit the use of campaign funds for the
uses to which the payments were put. In other words, Edwards could not have used
campaign funds to make hundreds of thousands of dollars in payments to his
mistress. Had he done so, CREW argues, he could have faced liability for
misusing campaign funds.
Perhaps most significantly, CREW warns of the potential consequences of
convicting Edwards based on Mellon’s and Baron’s payments to his mistress.
According to CREW, the government’s position appears to rest not on Mellon’s and
Baron’s intent in making the payments, but rather on the incidental benefit that
Edwards’ campaign received from the payments, i.e., preserving the “family man”
image that was part of Edwards’ campaign.
CREW argues that this position rests on a “near boundless theory of criminal
liability” that “would sweep in anything of value given directly or indirectly
to a candidate for federal office.”
So is the case really as significant as CREW suggests? Possibly yes. If
payments to Edwards’ mistress were to be considered campaign “contributions”
solely because of some incidental benefit received by Edwards’ campaign, the
effect indeed could be far-reaching. As CREW points out, under similar
reasoning, payments to a candidate to help pay off personal, private debts would
be treated as campaign contributions (as opposed to gifts, which other federal
laws require candidates to disclose). Any time a federal candidate received
anything of value, federal campaign laws could be implicated.
From the indictment alone, it is not yet clear whether the DOJ really is
advocating such a broad reading of what counts as a “contribution.” Indeed, the
indictment alleges that the payments were made “in order to protect and advance
Edwards’ candidacy for President.”
Nevertheless, CREW’s filing is a reminder that the proceedings against
Edwards merit close attention from anyone involved in campaign finance. There is
at least the potential for campaign finance laws to be extended further than
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