By Steve Meister, Esq.
“That's an incongruous message for a bumper sticker, but it's sound, indispensable advice for any political campaign.
As anyone in politics knows, just from reading the headlines overflowing from the Jack Abramoff burgeoning scandal on campaign contributions and political payoffs, there's not much fun in having your name associated with a potential criminal prosecution.
Lawyers are as important a component of any campaign team as are the consultant, the fundraiser, and the opp-researcher who's spying on you right now. You can believe me when I say this, because I'm a criminal defense lawyer who ordinarily doesn't practice election law. So I'm not writing this article to be the next big campaign lawyer; I'm writing it because too many campaign consultants and candidates themselves end up learning the lesson the hard way. And it needn't happen to you.
If you're a campaign consultant whose candidate enthusiastically (or even unhappily) wrote a check for the lawyer's retainer (before receiving the U.S. Attorney's target letter), or if you're a candidate who already has a lawyer picked out to help you navigate the election law issues you'll encounter during the race, you can read the rest of this article for fun – you know the ropes.
If, on the other hand, your candidate-client avoids the issue like the plague, or turns to you and says with a smile, “Why don't YOU handle the legal end of things?”, or if, worst-case scenario, you actually agree to do that, no amount of disdain for lawyers should stop you from reading every word.
The Proactive Prevention of Problems
A good campaign lawyer can help you steer clear of the mines which dot the landscape of federal, state and local election statutes. Good legal representation on the front end can make your life easier, smooth the road to victory, and cost you less than hiring a lawyer when crisis has hit.
Just think of all those persons in the political arena now writing checks to their lawyers for Grand Jury appearances, public relations consultants and others in specific fields who are hired because the candidate scrimped on budgeting for legal advice before calamity struck. The costs add up quickly but the toll really elevates through the emotional quagmire that develops.
Fundraising
As one example of the pratfalls which await the unwary in campaign fundraising, here's an excerpt from the federal election code (Title 2 United States Code, section 441f): “No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.”
This is one of those laws written with the express purpose of confounding anyone who tries to read, understand and comply with it. If you've never seen the statute before, it's the federal prohibition on campaign money laundering, and running afoul of it will land the suspected violator in serious trouble with the government. Most states have similar laws on the books.
We've read about all those cases where well-meaning individuals make contributions and then get “reimbursed” by nefarious, wannabe fat-cats. Mr. Good Faith Contributor soon gets a visit from the FBI.
And when a criminal investigation has been initiated, regardless of the outcome and even if the affected campaign knew nothing about the scam, the campaign has no choice but to dump the tainted money and go into crisis communications mode to disassociate itself from the illegal conduct.
Now, I'm not saying that having a lawyer can completely guarantee avoiding this problem. But it's common sense that a fundraising operation will be as risk-free as possible if you cover all the bases and build in protective redundancies: An experienced and ethical fundraiser; a consultant who knows campaign finance; and a lawyer who will act as the safety net in all campaign-finance matters.
Reporting and Disclosure
If campaigns didn't benefit from expert advice and services in preparing disclosure reports, lawyers wouldn't be specializing in it. As anyone who's ever completed a report will attest, it's a time-consuming, time-sensitive, miserable, extremely detail-oriented undertaking with seventy-nine built-in ways to get it wrong, but which you absolutely have to get right.
That is, unless you want government ethics regulators breathing down your neck in the race's closing days, or unless you enjoy giving your worthless opponent fodder for an attack mailer about your candidate's loose money-morals.
Don't bring needless suffering upon the campaign; inflict it on your lawyer! The final sign-off should not be from your accountant or fundraiser, either, because if any reporting error or omission is truly grievous, albeit unintentional, you can defend yourself more ably if you acted on advice of counsel. Down the road, if you have to sacrifice the lawyer to save your own reputation and that of the candidate or campaign, at least you'll have the option.
Communications and Strategy
Do you know what the First Amendment protects and what it doesn't? As a broad general statement, most words spoken or written on the campaign trail are entirely protected from adverse government (typically judicial) action, because they're “political speech.”
But once again, the devil can be in the details, and the line can be crossed, and when it is, a campaign can have problems. The story about that terrible thing your candidate (or you) said gets legs, you're forced off-message, you're defending the campaign, your candidate is blaming you, and your opponent sees his poll numbers spike. Ugly? Yes. Possible? Yes. Avoidable? Again, yes!
At least to the extent you can control what comes out of your candidate's mouth. But even the most fiery campaign combatant will be chastened if you can remind him that you warned against saying it.
You may be thinking, “Anything goes in the campaign,” or, “Any candidate who sues an opponent over campaign rhetoric isn't tough enough to be in politics.” While in principle I agree with both of these statements, your aggrieved opponent may not.
Remember that at least according to the Supreme Court, NOT everything goes. Additionally, if an opponent's field research yields positive results on the idea of suing you for that horrible thing you said, you'll probably get sued. It's a distraction and an expense you don't need.
Having a lawyer on board to review any “close to the line” campaign communications before they go out is good insurance in this regard, and therefore it's a good use of the campaign's time and resources. Even silver-tongued candidates can use a primer in the law of defamation, and the harder they hit, the more they need to know where the foul line is.
A final word about legal fees: As with anything else, you get what you pay for, and good lawyers aren't cheap. That said, hiring a lawyer at the beginning, before the storm clouds gather, almost always makes better fiscal sense than writing a huge check when things have already gone south. Remember, this advice comes from a criminal defense lawyer. Hire a good campaign lawyer now and there'll be no need to contact me or any other defense attorney later.
Steve Meister, a Los Angeles criminal defense lawyer, is a former
prosecutor and former L.A. City Hall political aide. He has
represented clients in political corruption cases before
federal and state courts, and in administrative proceedings.
