Wednesday, April 25, 2012

Free John Edwards

John Edwards amassed a fortune selling junk science to juries. By the grace of God, he did not succeed in selling junk economics to the country - although he's got some some more successful allies in that effort.

He is also, by all accounts, not a very good guy. Vain, dishonest and utterly self regarding.

So shouldn't we root for him to go down in for violating campaign finance laws as alleged in his current trial?

No. He's not guilty.

To be sure, there may have been any number of criminal laws violated by donors providing hush money to Rielle Hunter. There may have been taxes that should have been - but were not - paid.

But was it an improper "campaign contribution?" The government's theory seems to be that any amount paid that would help a candidate's campaign - at least if it was intended to help the campaign - is a contribution.

That's not right. Here is a great post by Rick Pildes at the Election Law Blog explaining why. The problem is that there was neither a contribution or payment of a campaign expense. We know that people can spend money in a way that helps a candidate without it being a contribution. Indeed, it is a long standing staple of campaign finance law that some one can independently spend money for communications that might help a candidate's campaign and that this expenditure cannot be regulated as a contribution.*

I could go on. Suppose that a wealthy supporter of Tom Barrett decides to donate $ 5 million dollars to the City of Milwaukee to put a glitzy new boardwalk adjacent to the Summerfest ground. He announces the gift in a joint conference with the Mayor right before the recall election and praises the Mayor for his leadership. Whether or not this is intended by the Mayor or the donor to help the Barrett campaign, it is not a contribution.

Or assume that a conservative foundation announces that it will give a cash prize to Sen. Mitch McConnell shortly before the election. McConnell intends to use the money for personal expenses and investments. It's not a contribution.

FEC regulations want to treat third party payments as contributions if they would not have been made but for the campaign. But that seems almost impossible to prove or disprove. There are all sorts of payments (I've mentioned two examples) that one might reasonably suspect would not have been made but for the campaign. But the same factors that might cause a donor to support a candidate for public office might also cause her to provide personal support.

Let's assume that Edwards was not running for President. Might Bunnie Mellon have nevertheless paid to keep Rielle Hunter so that Edwards' stature as a leader that Ms. Mellon respected would not be diminished and he could continue in public life. Might she not have done it to save the Edwards marriage?

But it's even worse than that. To get a conviction, isn't it necessary to show that Edwards knew - or at least believed - that the payments would not have been made, as the FEC puts it,
"irrespective of the candidacy."

To make this turn on an after the fact examination of subjective - and potentially murky objectives - seems fraught with vagueness problems. Even if they don't raise to constitutional stature, how could a jury find Edwards guilty beyond a reasonable doubt save for explicit admissions from the principals. 

This isn't to say that paying off Edwards' mistress wasn't wrong or that it didn't, as one witness testified, "smell wrong." It was and it did. As I mentioned at the outset, it may have even violated some other laws. But not the ones that have been charged.

That matters. I have written here in the past about the misuse of vaguely worded criminal statutes for political ends. This article by Rick Hasen reviews the issue nicely and this quotation from the Editors at the National Review, in an article criticizing the Edwards prosecution, puts the problem well:

Campaign-finance laws are a tricky business, because they put political incumbents in charge of setting the rules under which their positions and their power may be challenged. Such laws should be as transparent and straightforward as possible, and prosecutions under them should be undertaken with proper care.

1 comment:

George Mitchell said...

This is a good post mainly as a reminder that campaign finance laws are inordinately complicated and subject to the highly misleading shorthand of contemporary journalism.

I question Rick on one point. He says, "Indeed, it is a long standing staple of campaign finance law that some one can independently spend money for communications that might help a candidate's campaign and that this expenditure cannot be regulated as a contribution." From what I have read, the funds in question were not provided independent of the campaign. Rather, were they not solicited by close Edwards campaign aides, with his knowledge?

Edwards' legal team has a tough job. They will need to advance a legal theory that Rick thinks is valid — and Rick often is correct in these matters — while the jury stares at that slug of a defendant.