ONE UNANTICIPATED BENEFIT of Bob Dole’s decision to give up his Senate seat and majority leadership is that he may throw the White House rapid-response effort into legal jeopardy. The Clintonires have made brilliant use of White House officials to answer, attack, and preempt Bob Dole, an effort led by presidential assistants Gene Sperling and Bruce Reed. No sooner does the Dole campaign merely announce a speech than the counterspin begins and Dole’s policy is hijacked. But their free ride may come to an end on June 11, when Dole steps down. So long as White House responses or policy preemptions relate to Dole the Senate majority leader, they can be paid for by the taxpayers as part of the ordinary business of trying to cope with a divided government. But when the trigger is purely political, not legislative, as will be the case upon Sen. Dole’s retirement, the taxpayer subsidy should stop.
I know more about this than I would like to because I served as George Bush’s counsel during the last presidential reelection effort. Because of our reading of campaign finance and ethics laws in 1991 — laws that had tightened considerably since Ronald Reagan’s 1984 reelection campaign — we found it necessary to twist the White House staff into pretzels to avoid breaking the law. There is some reason to think the Clintonites may not be as pristine.
The trap for a sitting president running for reelection is that it is illegal to use appropriated funds for purely political purposes. To be sure, it is not hard to cook up an “official” event around which the White House can drape a campaign appearance, so long as the president doesn’t make statements about his own reelection. But given the sophistication of modern communications, a president does not have to fly Air Force One to St. Louis or Los Angeles to make news. He can simply talk into a satellite feed to local or regional media and make news, so long as he has something newsworthy to say.
In either case, though, if the newsworthy commentary is political in nature, it has to be paid for by the campaign. And if it is paid for by the campaign, it cannot be developed inside the White House. Period.
So the public and the media should be asking the following questions:
. Has the White House moved any of the rapid-response operation outside to the campaign? If not, there could be violations of 31 U.S.C. 1301, which limits the use of appropriated funds to those purposes provided by law.
. If, on the other hand, some of the key people have moved over to be paid by the campaign, are they in fact working in the campaign offices, or are they really still camped out in the White House? Even if they are at the campaign, coordinating events with White House staff, the Clintonites could be running into serious problems. They could be violating revolving-door rules, which prohibit former high4evel executive-branch staffers from asking anything of their former colleagues for a year’s time. This proved a substantial problem for us in the Bush White House: Every time campaign chairman (and former commerce secretary) Robert Mosbacher came into a White House meeting, budget director Richard Darman had to leave — which, fortunately or unfortunately, meant that Mosbacher soon stopped coming to the White House.
But if the outside political types do keep operating out of the White House, they could have an equally serious problem. They could, for example, become ” special government employees,” the status enjoyed by Travelgate instigator Harry Thomason in 1993, and thus subject to both financial disclosure and the conflict provisions of Section 208 of the Criminal Code (a provision that does not apply to Congress, by the way).
Do the campaign advisers have any outside corporate clients? Maybe Dick Morris advises only other candidates and suspected rapists, but it is very likely the White House will be hearing from Democratic political consultants comparable to Republicans like Charlie Black and Bob Teeter. Both of them gave up their outside consulting and recused themselves from matters in which they had previous significant involvement. Will the political consultants who work with the Clinton reelection effort do the same?
The Reagan and Bush campaigns tried to manage this tightrope with what we called a “funnel.” The funnel channeled all contacts between the White House and the campaign through the chief of staff’s office, which then reviewed all requests for campaign appearances and speeches for consistency with the president’s program. By minimizing contacts between the campaign and the White House, the funnel ensured the legalities were observed. But this was cumbersome and time-consuming. It led to squabbles and bitterness. And there were limits: We had to have separate speechwriters, for example, and the opposition-research operation was located exclusively at the campaign.
Managing the tightrope is very difficult. In his recent book, Bush press secretary Marlin Fitzwater placed a considerable amount of blame for our botched 1992 campaign on “my” funnel. And even with those awkward attempts at squaring the circle, we still took many shots from the press for various alleged moral and ethical lapses. This article is intended to ensure that the media pay comparable attention to the Clinton campaign’s observance of the necessary niceties.
EDITOR-NOTE:
C. Boyden Gray is a partner at the Washington law firm of Wilmer, Cutler and Pickering.
by C. Boyden Gray
