May 9, 2000
How Can Soft Money Be Justified
By Glenn Moramarco
If a law is broken in the forest, and no one is there to enforce it, is it still a crime?
Apparently not. At least that seems to be the answer of Senate candidates Hillary Rodham Clinton and Rudy Giuliani. Otherwise, how can they claim that using joint fundraising committees to raise soft money for their Senate campaigns is “perfectly legal?”
In fact, the practice is clearly illegal under current Federal Election Commission rules. Yet Clinton and Giuliani are raising what’s known as soft money hand over fist, taking comfort in the assumption that, given recent history, the FEC. is unlikely to take any action against them. The practice is permissible not because it complies with the law, but because the cop on the beat simply does not care.
As part of the never-ending race to the bottom in the world of campaign finance, this year’s joint fund-raising committees go well beyond even the brazen “soft-money” ploys of the past. Candidates used to raise soft money for their parties with a wink and a nod that money would then be spent on their behalf. In this year’s New York Senate race contributors give soft money directly to the “Giuliani Victory Committee” or the “New York Democratic Victory 2000” committee. Well-publicized statements by the campaigns, not to mention the fund-raising committees’ names, eliminate any doubt that the candidates are the designated recipients of the prohibited soft money contributions.
Under FEC rules, funds raised by a political party that “are in any way earmarked” count as a contribution directly to the candidate. Earmarked is defined to include any designation or instruction “whether direct or indirect, express or implied . . . which results in all or any part of a contribution or expenditure being made to, or expended on behalf of, a clearly identified candidate.” It is difficult to imagine how the law could be violated more clearly or directly.
Does anyone doubt that a soft money contribution to the Giuliani Victory Committee will result in expenditures by the Republican Party on behalf of Giuliani? Would the people who are giving to New York Democratic Victory 2000 be surprised to learn that the Democratic Party is spending that money on Clinton’s candidacy?
One would think that Mrs. Clinton, having endured so many investigations and special prosecutors over the past few years, would be the last one to risk charges of improper fund- raising.
Likewise, Mr. Giuliani, a candidate whose appeal stems in no small part from his law and order reputation, should not be relying on the feeble claim that, well, everyone else is doing it.
Both candidates publicly profess a desire to reach an agreement to voluntarily forgo using soft money during the campaign. One wonders, however, why an agreement cannot be reached.
There is no shortage of legally regulated and reported “hard money” contributions being showered on these candidates. Giuliani expects to raise a total of $40 million in hard money contributions, and has already beaten Sen. Charles Schumer’s record of $17 million. And Clinton is well on her way, having already raised $12 million.
The unwillingness of these two candidates to refrain from raising soft money in violation of federal law is shameful.
However, even more disturbing is that we have a system that gives candidates the option of “voluntarily” refraining from breaking the law. The absence of credible law enforcement in this area leads otherwise fair and responsible people to engage in dishonorable acts.
ABOUT THE AUTHOR
Glenn Moramarco is a Senior Attorney at the Brennan Center for Justice at New York University School of Law.