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Exaggerating Political Misdeeds is Almost as Bad as Ignoring Them

Original Article

Americans have decided, if the polls are right, that the most important issue facing the country is campaign finance reform. But the polls probably are not right, reflecting, as they do, the media’s priorities and the lack of any military or economic bad news. This may be a case where the survey respondents are trying to guess the answer that they imagine will please the pollster.
However, if the polls are right, then we are in a confused situation.

Here we have an Administration on the verge of the appointment of at least one new independent counsel to inspect possible White House campaign finance violations, and yet the President’s popularity is at 65%, an all-time high. If campaign finance is such a national concern, how can this be?

Granted, the President’s public enthusiasm for reform is well-known. But , suspiciously, it seems to grow in proportion to the new evidence of illegal phone calls by Mssrs. Clinton and Gore and foreign donations to their campaign. Moreover, the part of the system the president ostensibly wants to fix (soft money contributions to parties) arguably isn’t broken, while what may very well have been broken are long-standing laws. Why should we pass new laws when we don’t enforce the ones we’ve got?.

If the President and Vice President have broken existing laws, they should own up and pay a stiff fine. But, now, let us remember something else. The purpose of these laws is not just to punish lawbreakers, but also to make the political system responsible. Cannot we not agree that people who break campaign laws should be punished only to an extent fitting the crime?

Mr. Clinton, in particular, may yet run afoul of other, more serious legal problems (e.g., Whitewater), but neither he nor his Vice President deserve to be tarred and feathered for makng illegal phone calls. So, let it be known that in such cases, a large enough fine will be levied that other and future office-holders will be admonished. Then let it rest.

We have a somewhat similar situation here in Washington State. Wealthy businessman Thomas Stewart of Services Group of America was accused of improper campaign contributions to an initiative campaign that sought to convert at-large City Council elections to elections-by-district. In an almost ludicrous misconception of political strategy, Stewart apparently thought the initiative might make it possible for him to get private helicopter landing rights at his office building, permission the City hitherto had denied him. Not wanting to call attention to the scope of his personal role, he funneled money into the initiative campaign through various friends and associates, which is against the law. If he didn’t know that, he should have. When confronted, he admitted his lawbreaking and cooperated with the city ethics commission.

Eventually, he accepted a hefty $60,000 penalty issued by the commission. Needless to say, it was a personal humiliation for Stewart. Some Republicans think he was given such a big fine because he is a rich conservative in a liberal town, and a figure whose opponents would like to see disappear. Be that as it may; he broke the law and he was fined heavily.

But now there is agitation to put him in jail as well–to turn a civil offense into hard time crime.

Really? Is that going to help clean up politics?

No, it will have two effects, both bad.

First it will convert administrative political laws into criminal laws, which is constitutionally questionable, and surely against the interests of justice in a democracy. It also would be a cumbersome precedent. Criminal standards are relatively obvious (did the person rob the bank or not?). But politics is inherently murky and subject to conflicting interpretation, as Vice President Gore’s lawyers have alleged about his phone calls.

Escalating penalties for civil wrongdoing into criminal sanctions raises the stakes to a point where resolution becomes more difficult, not easier. How much would Stewart have cooperated if he had thought he might face a prison term?

Second, criminalizing conventional political wrongdoing threatens to introduce a dangerous arbitrariness into our judicial system. We almost all break some law some time, and political laws are notoriously subject to invidious usage. If enforcement can be carried to an extreme, and conditioned at least partly on political moods, the question of who gets charged and punished–and how badly–becomes as much a matter of chance as it does of law. This is not just a possible “chilling effect” on political participation, it’s a freezing one.

So, root out the wrong-doing, whether in Washington State or Washington, DC. But make the extensive laws on the books work better before you devise new ones. And when you do find someone guilty, make the punishment proportionate. This is a sustainable policy.

The alternative is not legal clarity and encouragement of political virtue, it’s incitement to political show trials, phony reforms and more public disillusionment.

Bruce Chapman

Cofounder and Chairman of the Board of Discovery Institute
Bruce Chapman has had a long career in American politics and public policy at the city, state, national, and international levels. Elected to the Seattle City Council and as Washington State's Secretary of State, he also served in several leadership posts in the Reagan administration, including ambassador. In 1991, he founded the public policy think tank Discovery Institute, where he currently serves as Chairman of the Board and director of the Chapman Center on Civic Leadership.