It is worth asking whether the media have spun two narratives around the 2008 presidential candidacy of John Edwards.
The first, begun in 2007, was that Barack Obama would be a stronger candidate for the Democratic presidential nomination than Hillary Clinton — a narrative easier to substantiate with a strong third candidate in the race to buffer Obama and siphon support from Clinton.
#ad#John Edwards met Rielle Hunter in 2006. In October of 2007, the National Enquirer published a story suggesting that Edwards was having an affair, which had resulted in him and Hunter conceiving a child.
Three months after the Enquirer story, in the Iowa caucuses, Barack Obama received 37.6 percent of the vote, John Edwards 29.7 percent, and Hillary Clinton 29.4 percent. Then, in New Hampshire, Clinton defeated Obama, but barely, receiving 39 percent of the vote to Obama’s 36 percent, while Edwards collected 17 percent.
At the end of January, one month before his daughter with Hunter would be born, Edwards “suspended” his campaign (a legal maneuver allowing him to quit and still accept federal matching funds). An AP-Yahoo poll conducted at the time indicated that four in ten Edwards supporters favored Clinton as their second choice. Fewer than three in ten favored Obama.
But the die had been cast. The momentum Obama had gained from Edwards’s presence in early contests established a delegate count Clinton would not overcome.
Those familiar with MSNBC’s coverage of the 2008 Democratic primary battle and with the JournoList phenomenon sense that if any mainstream reporter had pursued the Enquirer’s allegations early enough to hurt Obama and benefit Hillary, it would have been apostasy. (Those who prefer to believe that political reporters pursue and report all they know, in real time, haven’t read Mark Halperin and John Heilemann’s Game Change.)
Barack Obama made it safely to the Oval Office, but he now faces reelection. And John Edwards is in the news again — indicted on counts of receiving illegal campaign contributions, conspiracy, and making false statements.
The basis of the charges is that one of Edwards’s campaign contributors provided additional funds to hide and support Rielle Hunter. The government calls those additional funds excessive campaign contributions designed to hide Hunter to save Edwards’s campaign. Edwards contends they were personal gifts designed to hide Hunter to save his marriage to Elizabeth Edwards. This difference is at the heart of the case.
While most experts think the government’s case is a stretch, campaign “reformers” at Common Cause have praised the indictment as “a welcome statement about the Justice Department’s commitment to strict enforcement of our campaign laws.”
J. Gerald Hebert, a senior reformer with the Campaign Legal Center, was out early in televised interviews hosted by Brian Ross of ABC News. Ross has aided reformers before, transmitting the meme that Tom DeLay’s political maneuvers were better viewed as crimes.
Hebert conceded in the interview that the first thing the government would have to prove is that the money “paid to [Hunter] was done for the purpose of influencing the election,” which would make the funds “contributions” (illegal and excessive ones), not gifts.
The government’s case sinks or soars on the charge that Edwards’s desire to hide his mistress would not have existed “irrespective of” his candidacy, the standard that marks the line between campaign use of funds and personal use. But any layman knows that charge isn’t true. The desire to hide a mistress would exist whether Edwards was running for president, serving as senator, or trying cases as an attorney.
And the disbursements themselves look like what the law calls “personal use”: $29,259 to shuttle a mistress to Aspen on Christmas Eve; $14,787 to shuttle her home to California for the New Year; $11,717 to shuttle her back for another winter wonder-week in Aspen; and $15,361 in mid-January to shuttle her home.
#page#An interesting thing about the case is that federal law also prohibits converting campaign funds to the “personal use” of any person, but the government did not charge Edwards with knowingly and willfully converting campaign funds to his or Hunter’s personal use. The reason is simple: The government does not want to highlight the personal nature of the disbursements used to hide Hunter because it bolsters Edwards’s defense that the funds were never campaign funds.
If the donor in question, centenarian Rachel “Bunny” Mellon, listed the funds she claims were gifts as “gifts” on her 2007 IRS Form 709, the government’s case is all but over. Throw in the fact that a criminal conviction requires proof beyond a reasonable doubt that Edwards knew where the line was drawn between legal gifts and illegal campaign contributions, and then willfully violated it, and you begin to see the government’s problem.
#ad#The government is counting on the seamy optics of a personal affair to win a campaign-finance conviction. Good men and women have been convicted on less. But if campaign-finance violations are the allegation, the seamy nature of the disbursements should acquit Edwards, not convict him.
Some are asking why Edwards, a multimillionaire, wasn’t smart enough to hide Rielle Hunter on his own dime: Surely that would have prevented potential campaign-finance problems. The answer affirms Edwards’s case: If he had tapped his personal accounts to shuttle Hunter around, his wife, Elizabeth, would have found out — even as his campaign might have continued.
John Edwards is a true-blue Democrat. The press has declined to make an issue of Democrats’ mistresses and campaign violations before. The DOJ could have settled this case quietly. Why push so hard?
Perhaps it is because reformers and reporters don’t really care about Edwards in 2011; they care about reelection for Obama — just as mainstream reporters appear not to have cared enough to pursue Edwards’s indiscretions in 2007 because of his value as a buffer to Obama.
Barack Obama won the primary and later defeated John McCain, but it is he, not McCain, who is the McCain-Feingold president. Mr. Obama is the confluence of the JournoLists who would not vet him and opponents forbidden to advertise against him.
But the Supreme Court has corrected much of the McCain-Feingold law, with the latest correction coming from the 2010 Citizens United opinion. The press has seen what happened to congressional Democrats in the November election. It understands what can happen to Mr. Obama if campaign restrictions aren’t restored for 2012.
That is why we read fond accounts of the failed DISCLOSE Act, of the president’s draft executive order on contractor disclosure, and of the suit filed by Rep. Chris Van Hollen (D., Md.) against the Federal Election Commission, and why we see send-ups of the Supreme Court on The Colbert Report.
The Edwards indictment and its coverage may be the makings of a second narrative useful to Obama, this time aimed at Republican donors feeling their oats after the Citizens United opinion: Campaign-finance violations still loom large in 2012.
— Stephen M. Hoersting is a campaign-finance attorney and co-founder of the Center for Competitive Politics.