Edwards case may have little effect on campaign finance

nbarnett@newsobserver.comMay 31, 2012 

— Defense lawyers in the John Edwards case complained that he was prosecuted under a “novel” view of campaign-finance law. Apparently, it was so new jurors couldn’t agree on what it was and whether Edwards broke it.

Now the murky conclusion of the jury’s deliberations – acquittal on one count, no unanimous agreement on the remaining five – leaves it equally unclear whether the case will change how campaign contributions and expenses are defined and reported going forward.

Edwards was accused of receiving excessive contributions from two benefactors to hide his mistress, and failing to report the money as campaign contributions. At least some jurors accepted his defense that the monies were gifts to help with a personal situation and were not campaign contributions.

Experts in campaign-finance law are divided about whether the trial will stand as an isolated event or one that will widen the definition of a campaign contribution.

“It’s such an odd and idiosyncratic case that it will probably have no bearing on the law,” said Thomas E. Mann, a political scientist with the Brookings Institution who specializes in campaign funding.

Mann said the funding landscape has changed dramatically since Edwards benefited from the donations during his campaign for the 2008 Democratic presidential nomination. In 2010, the Supreme Court’s Citizens United decision allowed corporations and unions to make independent political expenditures. That change has allowed corporations and unions to give unlimited amounts to aid candidates through super PACs.

“Given the incredible ability that now exists for huge amounts of money to work on behalf of individual candidates, (the Edwards case) is unlikely to have relevance to subsequent cases,” Mann said.

‘More of a mess’

But Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, disagreed. She said a conviction in the case would have had broad consequences and made campaign-finance law “more of a mess than it currently is.”

Edwards was accused of using more than $900,000 in funds from two billionaire supporters to cover up his extramarital affair with Rielle Hunter, and her pregnancy. Sloan’s group filed an amicus brief in the case arguing that the government was wrongly bringing criminal charges when the law was unclear.

“Every campaign-finance lawyer and every candidate is looking at this because, if this is a crime, it is totally unclear what is a reportable campaign contribution. We have no idea,” Sloan said. “If this is campaign expense, you can arguably say everything is a campaign expense.”

Sloan said the best outcome of the case would be to have the prosecution fail. She said that might “deter the Justice Department from bringing such silly cases in the future.”

Tara Malloy, a senior counsel at the Campaign Legal Center in Washington, said the circumstances of the Edwards case are unlikely to occur regularly. That may undercut its relevance to campaign-finance law.

“It is a little unclear how much repercussion it will have because the facts of the case are so unusual.,” Malloy said. “I don’t know how often we will have hush money being paid by billionaire benefactors.”

Malloy said it would have been better for the federal government to take on mainstream cases of campaign-finance violations. In the Edwards case, she said, the main impact may be to remind candidates of an obvious hazard.

“There is an easy way for candidates to avoid these situations,” she said. “A candidate should not be accepting huge gifts. A prudent candidate would not accept gifts no matter how personal he thinks those gifts might be.”

Richard L. Hasen, a professor of law and political science at the University of California who writes a blog on campaign-finance law, said the Edwards case raised questions about the misuse of campaign-finance law rather than a new interpretation of it. He said it was wrong for the government to bring criminal charges in an area where the law is vague and shifting.

“The law related to how campaign contributions work is unclear, and usually the way we deal with lack of clarity is through civil liability,” Hasen said.

Pattern of prosecutions

Hasen said the significance of the Edwards case may be that it signals the government’s willingness to use vague campaign-finance laws to bring criminal charges against politicians. He cited recent criminal prosecutions in which convictions have been overturned or challenged as politically motivated involving the late Sen. Ted Stevens, former House Majority Leader Tom DeLay and former Alabama Gov. Don Siegelman.

“The Edwards case should not be seen alone but as part of a pattern of controversial prosecutions of political figures,” he said. “I’ve been quite critical of imposing criminal liability when things are not clear.”

David Keating, president of the Center for Competitive Politics, agreed.

“The case should never have been brought, and now the government should drop the case,” Keating said. “Prosecutors should stop trying to use vague laws to criminalize politics.”

Barnett: 919-829-8955

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