SUDDENLY, EVERYONE’S AN EXPERT on the Pendleton Act, the 1883 ban on political fund-raising in federal offces. Every few days or weeks, another writer weighs in on the history of the law — and why it exonerates Vice President Al Gore.
“The Pendleton Act probably doesn’t apply to the vice president,” pronounces former White House senior adviser turned pundit George Stephanopoulos on ABC’s This Week in mid-September. “It probably only applies if the solicitation was on federal property to a federal employee. And most important, no one’s ever been prosecuted under the Pendleton Act.”
“You don’t want to get involved in prosecuting laws that have never been prosecuted,” chimes in Newsweek’s Eleanor Clift on the “Diane Rehm Show” on September 26. The Pendleton Act “was meant not to prohibit federal officials from asking private citizens for financial support but to prohibit strong-arming federally employed underlings into forking over money to the governing party,” explains Martin Peretz in the March 31 issue of the New Republic. “And nobody has ever accused Gore (or, for that matter, Bill Clinton) of doing that.”
In news stories and commentaries, the same factoids crop up again and again: that Congress didn’t mean for the law to cover solicitations of private citizens who aren’t on government property, and that no one has ever been prosecuted for such solicitation.
It turns out that these confident assertions have a common source: an influential research memo issued by the Congressional Research Service on March 7, shortly after the vice president’s fund-raising calls came to light. Written by CRS attorney Jack Maskell, the memo attempts to analyze, among other things, the law’s intent and its enforcement record. Although written for all of Congress, it has been widely circulated by Democrats.
Most leave-Gore-alone articles cite the CRS memo, and its fingerprints are fairly obvious on the rest. But the memo is like Robert Reich’s memoirs: You rely on it at your peril. It has snookered a lot of writers, including me.
On the first point, even Gore’s defenders generally concede that the language of the law is broad enough to cover his fund-raising calls: It says no one can “solicit or receive any contribution” in a government office. What they argue, rather, is that Congress had an unstated intention to cover only solicitation of federal employees — because, the argument runs, the ban was part of an 1883 civil-service law enacted to protect those employees.
The Maskell memo backs this theory of the law’s intent, and its review of the legislative history makes it look incontrovertible. Of course, assessing congressional intent is always hazardous — who can say just what hundreds of members of Congress were thinking? That’s why courts are reluctant to rely on legislative history to override legislative language that is reasonably clear.
But if you’re going to reach back to the 1880s, at least do it right. Maskell misses what is surely the key passage. When the solicitation ban was introduced in the Senate as part of an amendment to the Pendleton Act on December 27, 1882, the amendment’s sponsor — Joseph R. Hawley of Connecticut — explicitly pointed out that the ban went beyond fund-raising from employees:
Our object was to prevent any and every man who got any money from the United States for his work collecting or assessing anything of any value from any other man in the United States who got a cent from the United States for his work. That of itself will remove a great deal of the evil. But we went further and said that no human being could, inside of Uncle Sam’s buildings or grounds, solicit in any way anybody for a single cent. No one questioned Hawley’s assertion on this point. While the ban is indeed mainly concerned with shake-downs of civil servants, Hawley said perfectly clearly that it doesn’t stop there.
The notion that Congress was somehow at odds with the plain meaning of the solicitation ban never made much sense anyway. The law spells out that its other restrictions apply only to fund-raising from federal officers and employees. If Congress had wanted the ban on soliciting in government offices to be similarly limited, it would have said so.
The second claim is that a prosecution for telephone calls to private citizens would be unprecedented. The fact is, though, that nobody knows whether the government has prosecuted anyone in the last 114 years for fund- raising calls.
In theory, one might be able to find the truth of the matter by going through files at the Justice Department and the U.S. attorneys” offices across the country. The CRS memo that pundits rely on for this historical point, however, was not based on any such research. Maskell looked at the same material available to anyone else: a public Justice Department manual and reported court cases. He concluded that there were “apparently” no prosecutions.
But it’s a big, big “apparently.” The manual, Federal Prosecution of Election Offenses, simply gives guidance to Justice Department lawyers; it doesn’t pretend to catalogue past prosecutions — nor does it assert that there have been no prosecutions for fund-raising calls. And only a tiny fraction of criminal prosecutions are immortalized as reported cases. In other words, Maskell had almost nothing to work with — and should have said so.
That’s not all. Maskell alleges that the independent-counsel law contains an exception under which, even if Gore did commit a crime, the attorney general doesn’t have to seek an independent counsel. He says this exception applies if Justice has a policy of not prosecuting the type of offense in question. Sen. Carl Levin (D-Mich.) and a number of writers have picked up on this and argued that the supposed lack of enforcement shows Justice has such a policy covering Gore’s phone calls. What Maskell doesn’t mention is that Congress apparently threw this exception out 10 years ago. Until 1987, the law required the attorney general to follow established Justice policies on ” the enforcement of criminal laws” in deciding whether to request an independent counsel — including policies on whether to prosecute. But Congress changed the law to require only that the attorney general follow policies on “the conduct of criminal investigations.” A Senate report at the time explained that the change was the result of disgruntlement over instances where then-attorney general Edwin Meese had relied on the exception not to move for an independent counsel.
As a matter of legal craftsmanship, the CRS memo, with all these holes and more, is amateurish at best. But, hey, it’s just government work.
David A. Price covers legal affairs in the Washington bureau of Investor’s Business Daily.
