Worthy people now assure us, with glee or solemnity, that the White House videotapes prove that Bill Clinton broke the law. Across the spectrum of conventional opinion-from liberal Howell Raines on The New York Times editorial page to conservative William Safire on the same paper’s Op-Ed page-there exists certainty about the President’s misdemeanors. In the Sunday Times of Oct. 19, Mr. Safire described a “conspiracy” against the Federal election laws, while Mr. Raines headlined “Bill Clinton’s Smoking Tape,” and charged the President with overseeing “a thoroughgoing plan to operate outside the Federal Election Campaign Act’s spending limits.”
A conspiracy, proved by a smoking tape. What more is there to say? Only that Mr. Safire, Mr. Raines and company are wrong about the facts and the law.
The tape they cite shows Mr. Clinton speaking at a luncheon held by the Democratic National Committee at the Hay Adams hotel in Washington on Dec. 7, 1995. There he proudly told the assembled contributors that the D.N.C.’s issue advertising had improved his poll numbers, and that those ads had been financed with money raised “in $20,000 and $50,000 and $100,000 wads” through the party, rather than the $1,000 contributions that were the legal limit of contributions to the Clinton-Gore campaign. The larger “wads,” of course, were “soft money,” given to the Democratic Party for various “party-building” activities; the smaller contributions constituted “hard money.”
According to the Raines-Safire camp, the spending plan Mr. Clinton described at that lunch was a dastardly crime that cries out for the appointment of an independent counsel. Soft money, explained Mr. Safire confidently, “must not be used to directly assist the campaign of a candidate for Federal office. Nor may such a candidate direct its use to aid his own election. That’s the law.”
But if we stop for a moment and consider those sentences, the absurdity of the law as interpreted by Mr. Safire and Mr. Raines becomes obvious. In essence, their theory would forbid the President’s political party from any activity that might assist his re-election and preclude him from any role in the party that he heads. Political parties would be barred from pursuing their main purpose in a democratic society, which is to seek public office for men and women who share its aims.
A saner view is held by the Federal Election Commission, which enforces the Federal Election Campaign Act. In advisory opinions and regulations issued over the years, the F.E.C. has recognized that the reality of coordination between candidates and parties cannot be regulated out of existence. Quoting one of its own earlier advisory opinions in a 1995 court brief, the commission wrote that “with respect to the campaign expenditures of political party committees, ‘coordination with candidates is presumed and “independence” precluded.'”
So the question of what the President might permissibly have done, and with which funds, is more complex than imagined at The Times . Indeed, Mr. Safire and Mr. Raines might be surprised to learn that the F.E.C. actually has set down precise legal proportions for mixing hard and soft money expenditures on issue ads of the kind the President mentioned. If the law bars any use of soft money to affect a Presidential campaign, why did the F.E.C. create a formula that allows soft money and hard money to be spent jointly during Presidential elections?
In 1995 and 1996, the Democrats adhered carefully to that formula. The difficulty of raising enough hard money to match the percentage of soft money to pay for those ads is, in fact, discussed repeatedly in the thousands of pages of documents turned over to the Senate Government Affairs Committee by Harold Ickes, who acted as political liaison between the D.N.C. and the White House.
The proper legal test of what the Democratic Party did is not the political effect of its ads, which is what the President boasted about on the videotape, but their content. Advertising paid for with soft money cannot lawfully say “Vote for Bill Clinton”-which is exactly what those famous D.N.C. ads, created by consultant Dick Morris, avoided saying.
Mr. Safire and Mr. Raines may not like the soft-money loophole, and may be infuriated that the Democrats exploited it so skillfully. Irritating the wise men of The Times is not, however, a Federal crime.
Meanwhile, they might note that the commercial that most closely skirted the law in 1996 was an ad aired by the Republican National Committee about Bob Dole’s life and values, called “The Story.” When questioned about this soft-money specimen by ABC News’ Ted Koppel, Mr. Dole replied: “It doesn’t say ‘Bob Dole for President’ … it talks about the Bob Dole story. It also talks about issues … It never says that I’m running for President, though I hope that it’s fairly obvious, since I’m the only one in the picture! [Laughter].”
Mr. Dole’s jovial comeback, by the way, is also on videotape-but nobody at The Times is demanding a special prosecutor for him.