Gore, the Phone, and the Law
Price, David A.
Gore, the Phone, and the Law by David A. Price Suddenly, everyone's an expert on the Pendleton Act, the 1883 ban on political fund-raising in federal offices. Every few days or weeks, another...
...No one questioned Hawley's assertion on this point...
...But we went further and said that no human being could, inside of Uncle Sam's buildings or grounds, solicit in any way anybody for a single cent...
...The manual, Federal Prosecution of Election Offenses, simply gives guidance to Justice Department lawyers...
...That's not all...
...But if you're going to reach back to the 1880s, at least do it right...
...The notion that Congress was somehow at odds with the plain meaning of the solicitation ban never made much sense anyway...
...But Congress changed the law to require only that the attorney general follow policies on "the conduct of criminal investigations...
...And nobody has ever accused Gore (or, for that matter, Bill Clinton) of doing that...
...It probably only applies if the solicitation was on federal property to a federal employee...
...it doesn't pretend to catalogue past prosecutions—nor does it assert that there have been no prosecutions for fund-raising calls...
...The law spells out that its other restrictions apply only to fund-raising from federal officers and employees...
...And most important, no one's ever been prosecuted under the Pendleton Act...
...In news stories and commentaries, the same factoids crop up again and again: that Congress didn't mean for the law to cover solicitations of private citizens who aren't on government property, and that no one has ever been prosecuted for such solicitation...
...That of itself will remove a great deal of the evil...
...Of course, assessing congressional intent is always hazardous—who can say just what hundreds of members of Congress were thinking...
...That's why courts are reluctant to rely on legislative history to override legislative language that is reasonably clear...
...and a number of writers have picked up on this and argued that the supposed lack of enforcement shows Justice has such a policy covering Gore's phone calls...
...In other words, Maskell had almost nothing to work with—and should have said so...
...As a matter of legal craftsmanship, the CRS memo, with all these holes and more, is amateurish at best...
...You don't want to get involved in prosecuting laws that have never been prosecuted," chimes in Newsweek's Eleanor Clift on the "Diane Rehm Show" on September 26...
...Until 1987, the law required the attorney general to follow established Justice policies on "the enforcement of criminal laws" in deciding whether to request an independent counsel—including policies on whether to prosecute...
...While the ban is indeed mainly concerned with shakedowns of civil servants, Hawley said perfectly clearly that it doesn't stop there...
...If Congress had wanted the ban on soliciting in government offices to be similarly limited, it would have said so...
...The second claim is that a prosecution for telephone calls to private citizens would be unprecedented...
...What Maskell doesn't mention is that Congress apparently threw this exception out 10 years ago...
...In theory, one might be able to find the truth of the matter by going through files at the Justice Department and the U.S...
...Every few days or weeks, another writer weighs in on the history of the law—and why it exonerates Vice President Al Gore...
...The CRS memo that pundits rely on for this historical point, however, was not based on any such research...
...Most leave-Gore-alone articles cite the CRS memo, and its fingerprints are fairly obvious on the rest...
...The fact is, though, that nobody knows whether the government has prosecuted anyone in the last 114 years for fund-raising calls...
...He says this exception applies if Justice has a policy of not prosecuting the type of offense in question...
...He concluded that there were "apparently" no prosecutions...
...But, hey, it's just government work...
...Maskell looked at the same material available to anyone else: a public Justice Department manual and reported court cases...
...Carl Levin (D-Mich...
...Maskell alleges that the independent-counsel law contains an exception under which, even if Gore did commit a crime, the attorney general doesn't have to seek an independent counsel...
...But it's a big, big "apparently...
...A Senate report at the time explained that the change was the result of disgruntlement over instances where then-attorney general Edwin Meese had relied on the exception not to move for an independent counsel...
...It has snookered a lot of writers, including me...
...What they argue, rather, is that Congress had an unstated intention to cover only solicitation of federal employees—because, the argument runs, the ban was part of an 1883 civil-service law enacted to protect those employees...
...Although written for all of Congress, it has been widely circulated by Democrats...
...The Maskell memo backs this theory of the law's intent, and its review of the legislative history makes it look incontrovertible...
...The Pendleton Act "was meant not to prohibit federal officials from asking private citizens for financial support but to prohibit strong-arming federally employed underlings into forking over money to the governing party," explains Martin Peretz in the March 31 issue of the New Republic...
...attorneys' offices across the country...
...And only a tiny fraction of criminal prosecutions are immortalized as reported cases...
...Written by CRS attorney Jack Maskell, the memo attempts to analyze, among other things, the law's intent and its enforcement record...
...The Pendleton Act probably doesn't apply to the vice president," pronounces former White House senior adviser turned pundit George stephanopoulos on ABC's This Week in mid-September...
...It turns out that these confident assertions have a common source: an influential research memo issued by the Congressional Research Service on March 7, shortly after the vice president's fund-raising calls came to light...
...When the solicitation ban was introduced in the Senate as part of an amendment to the Pendleton Act on December 27, 1882, the amendment's sponsor—Joseph R. Hawley of Connecticut—explicitly pointed out that the ban went beyond fund-raising from employees: Our object was to prevent any and every man who got any money from the United States for his work collecting or assessing anything of any value from any other man in the United States who got a cent from the United States for his work...
...Maskell misses what is surely the key passage...
...David A. Price covers legal affairs in the Washington bureau of Investor's Business Daily...
...But the memo is like Robert Reich's memoirs: You rely on it at your peril...
...On the first point, even Gore's defenders generally concede that the language of the law is broad enough to cover his fund-raising calls: It says no one can "solicit or receive any contribution" in a government office...
Vol. 3 • October 1997 • No. 5
