Hindsight from The New Gun Week September 20, 1998
The FEC and the 1996 Election Probe
by Joseph P. Tartaro
Executive EditorAfter refusing for months to pursue an independent investigation of alleged 1996 presidential campaign finance violations, Attorney General Janet Reno recently ordered a new review by a Justice Department task force.
The focal point is clearly the Clinton-Gore '96 campaign, with specific emphasis on the telephone fund-raising activities of Vice President Al Gore from the White House. However, it is quite likely that the Justice Department digging will also probe campaign finance activities by both Democrats and Republicans in that year's presidential and Senate campaigns.
The Reno announcement does not guarantee that an independent prosecutor will be named to pursue the investigation of the campaign finance violations. It merely takes the first formal step in that direction, by ordering the 90-day preliminary investigation to see what evidence is unearthed. Depending on the findings of the task force, Reno could appoint a new independent prosecutor to probe even deeper. The Lewinsky scandal aside, the new probe could prove a further political problem for Clinton in his last months in office and an embarrassment for Gore while he is running for president in the 2000 election.
The actual appointment of an independent counsel would put both Gore and President Clinton in a position of being under criminal investigation during 1999 and 2000, if not longer.
Reno had previously resisted moving toward an independent investigation of the Clinton-Gore '96 campaign, despite federal laws against the kind of activity Gore has been alleged to have engaged in. Last December, after an earlier 90-day review, she decided against appointing an independent counsel.
Her decision apparently went counter to the recommendations of FBI Director Louis Freeh and other high Justice Department officials. But new evidence may have forced her hand.
Largely unheard of during this hassle has been the Federal Election Commission (FEC), the federal election law watchdog.
The FEC has traditionally been quick to pursue and publicly tar and feather minor party candidates, independents and people who don't have the established machinery of the Democratic or Republican parties behind them. Seldom do they take on a sitting president or the leadership of Congress. The FEC can impose fines and other penalties on its own, but does not pursue criminal court sanctions.
The latest example of FEC stupidity involves unsuccessful GOP primary candidate Steve Forbes.
According to The Washington Post, the FEC recently filed suit against Forbes in federal district court in New York for the value of magazine articles he wrote for Forbes Magazine while campaigning for president in 1996.
The FEC said it took the case to court after it was unable to settle the issue with Forbes, charging that Forbes Inc. made illegal corporate contributions by publishing commentaries that he had written, and charging Forbes's presidential campaign with failing to report the contributions. Forbes may have been one of the most clearly pro-gun candidates of both major parties in the 1996 primary field.
"Mr. Forbes repeatedly disseminated his opinions about issues on which he was relying in his presidential campaign," the suit claimed.
Forbes is president and editor-in-chief of the magazine, but took a leave of absence during his campaign. He spent $38 million of his own money in his quest for the GOP presidential nomination. The FEC values the columns at $94,900.
Forbes called the lawsuit "a frightening effort by the FEC to unconstitutionally and impermissively control basic political expression and the freedoms of speech and the press."
The magazine issued its own statement, calling the FEC action "a considerable and disturbing assault on Forbes Magazine's constitutional right to publish editorials and commentary on issues of the day without interference from the federal government."
One of the key problems with the FEC is that its membership is divided 50-50 between Democrats and Republicans, with three members appointed by each party. This means that each major party has de facto veto power over any corrective or disciplinary action, even when FEC investigators recommend such steps.
That was the basis for a suit filed over an illegal contribution to, and use of, federal matching funds by the 1992 Clinton-Gore campaign.
The campaign had been given over a million dollars in matching funds to which it was not legally entitled under the campaign finance law, and the FEC's lawyers had recommended that the commission demand that the Clinton-Gore '92 campaign return the funds. However, no action was taken by the FEC because of a tie vote on the commission, with the three Democrat commissioners voting against the demand and the three Republicans voting for it.
With all of the discussion about campaign reform, few in Washington or the press talk about the need to reform or restructure the FEC itself, especially by adding an independent seventh and tie-breaking member.
So in early 1996, the Citizens Committee for the Right to Keep and Bear Arms and Second Amendment Foundation, as well as the American Political Action Committee, Alan M. Gottlieb and myself as individuals, and three radio talk show hosts filed suit in federal court in the Washington, DC, district against the FEC, in an attempt to get the so-called election watchdogs to demand the return of the taxpayers' money plus penalties from the Clinton-Gore '92 campaign.
As might be expected, the FEC lawyers argued that none of the plaintiffs had standing to sue, or force the FEC to do anything. The district court, while noting the merit of the complaint, ruled that we did not have standing to sue.
On recommendation of counsel-Richard Mayberry of Washington-we filed an appeal, and attended, with several supporters of CCRKBA and SAF, the oral arguments before a three-judge panel of the appeals court. (The appeals court sat in the same courthouse where Independent Prosecutor Kenneth Starr's grand jury was taking testimony from witnesses in the Clinton-Lewinsky matter.)
The FEC attorney again argued that none of the plaintiffs had standing to sue and suggested, in reply to at least one judge's probing questions, that even President Bush and his campaign would not have standing to sue. This prompted a judicial aside that no one could sue the FEC to make it follow the law.
But when the appeals court panel finally handed down its decision months later, it also ruled that none of the plaintiffs had standing.
Needless to say, such litigation-particularly against attorneys funded by the government-is costly. So far, because of the high cost involved, we have not called for a full review by the whole appeals court or the Supreme Court. But the new probe of the 1996 Clinton-Gore campaign seems to indicate that we were on the right track, and maybe when people talk about campaign reform they will also talk about reforming the FEC.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com