The Penultimate Word (for now)

Lots of comments in response to Friday afternoon's post asking two well known political bloggers who are swooning and speculating over the John Doe proceeding if they had ever engaged in political activity while employed by the government.

I have yet to hear from my old Backstory colleague Jim Rowen but Bill Christofferson says he never did campaign work on government time. I take him at this word.

But he subtly shifted the question. I used the word "political activity" intentionally. In a prior post, I asked about a series of things that an elected official or staffer might do on state time using state resources. The point was to make obvious that there are all sorts of things that are heavily political and inextricably bound up with campaigns that these people almost certainly do from their government offices. Bill does not - and I suspect could not - deny engaging in some of them. He would have been a poor staffer if he could.

As I posted, the point is not that we can't specify a subset of these activities that we can call "campaign work" and prohibit it. It is only 1) that there are going to be many cases where the line between work that is "political" but not "campaign" will be hard to draw and 2) that drawing this line will not accomplish nearly as much as we think it will in removing "politics" from government offices or reducing the advantages to incumbents of having publicly paid staff.

These observations have two implications.

The first is that the law needs to be quite specific in setting forth what is and is not permitted. Failure to do so not only raises around due process, fairness and notice concerns, it also maximizes the discretion of partisan prosecutors who, even if they are pure of heart and say their prayers at night, are subject to partisan pressures and confirmation bias. In the cases of Rindfleisch and Wink, the allegations do involve a specific statutory prohibition (although one that seems to call for misdemeanor and not felony charges). Charging other types of activities may be more problematic. If you don't believe me, consider the fact that the participating justices in Chvala split evenly on whether the statute being used in the Rindfleisch case could be applied to the "campaign activity" at issue there.

Second, the relatively limited advantages to be gained ought to affect what is charged and at what level. It ought to inform how we discuss these matters. The heavy breathing, references to "dirty work," etc., don't match what we know. For example, the comments here seem to presume that there are allegations of people who did nothing but - or little more than - campaign work on county time. But that is not an element of the crimes that Rindfleisch and Wink are charged with.

What we have seen so far from the John Doe is small ball. Yes, yes, yes, that may change although one does wonder what, if not politics, causes it to dribble out. But, at least so far, every time we are promised more, it doesn't really come.

Finally, considering what really goes on may help us understand cell phones and laptops. More to come.