Even America’s leading conservative magazine can’t swallow the campaign finance prosecution of John Edwards.
Ari MelberJohn Edwards’s trial for campaign finance violations begins Monday. Government prosecutors will build on their unusual theory from last year’s indictment—which charged that the Edwards campaign should have treated payments to the candidate’s mistress as official campaign expenses. Many election law experts criticized that idea as an unprecedented overreach, and in a sign of how this prosecution is scrambling the politics that came before it, the conservative National Review just published a spirited editorial defending Edwards against the charges.
The editorial bears down on a point that Edwards’s lawyers are sure to make at trial: show me the money.
“Because none of the money [for the mistress] went to the campaign,” National Review explains, “and none of the money went for campaign expenses—inasmuch as maintaining a mistress is not a campaign expense—it is difficult to see why this should be prosecuted as a campaign-finance violation.”
Prosecutors counter that Edwards’s desire to run as a “family” candidate made hiding the mistress an electoral necessity. The problem with that, as I wrote when the indictment was released, is that federal rules actually run in the opposite direction. They specifically prohibit the expensing of any costs that “would exist even in the absence of the candidacy” (according to the FEC).
In other words, if a candidate paid for a mistress’s hotel rooms out of campaign coffers, that would also seem to be a violation of campaign finance law. It’s usually a bad sign if the prosecution’s theory is that the defendant broke the law no matter what he did.
Important caveats remain, of course. Edwards’s personal behavior was despicable, a point National Review made with gusto in its editorial (“the Dorian Gray of the Democratic party,” “one of the most loathsome characters in American politics,” “a preening, moralizing fraud”). The trial has not begun yet, new facts could emerge and there may be other laws that were broken separate from the novel theory on campaign expenses. But this case is troubling regardless of one’s feelings about Edwards; it suggests just how distorted and downright broken the regulation of campaign spending is in this country. A widely reviled former candidate faces jail time for money spent on a mistress without campaign expenditures, but candidates and Super PACs can legally raise vast sums from parties with far more direct interests before government without limitation or, in many cases, disclosure requirements. Legislating public funding for all federal elections would cut down on money’s influence in politics a lot more than prosecuting personal payments as campaign contributions, but it would be a lot harder to do.
Ari MelberTwitterAri Melber is The Nation's Net movement correspondent, covering politics, law, public policy and new media, and a regular contributor to the magazine's blog. He received a Bachelor of Arts in Political Science from the University of Michigan at Ann Arbor and a J.D. from Cornell Law School, where he was an editor of the Cornell Journal of Law and Public Policy. Contact Ari: on Facebook, on Twitter, and at amelber@hotmail.com. Melber is also an attorney, a columnist for Politico and a contributing editor at techPresident, a nonpartisan website covering technology’s impact on democracy. During the 2008 general election, he traveled with the Obama Campaign on special assignment for The Washington Independent. He previously served as a Legislative Aide in the US Senate and as a national staff member of the 2004 John Kerry Presidential Campaign. As a commentator on public affairs, Melber frequently speaks on national television and radio, including including appearances on NBC, CNBC, CNN, CNN Headline News, C-SPAN, MSNBC, Bloomberg News, FOX News, and NPR, on programs such as “The Today Show,” “American Morning,” “Washington Journal,” “Power Lunch,” "The Last Word with Lawrence O'Donnell," "The Joy Behar Show," “The Dylan Ratigan Show,” and “The Daily Rundown,” among others. Melber has also been a featured speaker at Harvard, Oxford, Yale, Columbia, NYU, The Center for American Progress and many other institutions. He has contributed chapters or essays to the books “America Now,” (St. Martins, 2009), “At Issue: Affirmative Action,” (Cengage, 2009), and “MoveOn’s 50 Ways to Love Your Country,” (Inner Ocean Publishing, 2004). His reporting has been cited by a wide range of news organizations, academic journals and nonfiction books, including the The Washington Post, The New York Times, ABC News, NBC News, CNN, FOX News, National Review Online, The New England Journal of Medicine and Boston University Law Review. He is a member of the American Constitution Society, he serves on the advisory board of the Roosevelt Institute and lives in Manhattan.