by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Hans von Spakovsky of the Heritage Foundation, known primarily these days for his defense of Voter ID laws, uses a new National Review Online column to discuss the merits of the federal government’s prosecution of John Edwards.
Misinformed critics of the government’s prosecution claim that such gifts of funds are not covered by campaign-finance law. But federal law limits the amount that a donor can contribute to a federal candidate under 2 U.S.C. §441a. That amount is indexed for inflation and was $2,300 in 2008, when Edwards was a candidate for the Democratic presidential nomination. 2 U.S.C. §431 defines “contribution” to include a gift or “deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.”
Candidates can make unlimited campaign expenditures out of their own personal funds, and under FEC regulations (11 CFR 110.10), that includes gifts of a personal nature that had been customarily received prior to candidacy. Federal law also prohibits the conversion of campaign funds to any personal use (2 U.S.C. §439a). Most important, FEC regulations state that the payment of a personal expense by any person other than the candidate is considered a contribution to the candidate, unless the payment would have been made irrespective of the candidacy (11 CFR 113.1). As the FEC said in a prior advisory opinion (AO 2008-17), the key question is, “Would the third party pay the expense if the candidate was not running for Federal office?”
The testimony of government witnesses makes it pretty clear that the payments by these donors would not have been made if Edwards had not been running for office. Edwards is a multimillionaire; he could easily have afforded to make the payments (including legally obligated child support) out of his personal funds. But such personal payments would have blown up his candidacy and made it impossible to hide what he clearly wanted to keep hidden. The payments by his maxed-out campaign contributors were clearly intended to “influence” the 2008 presidential election by keeping Edwards in the race and protecting his reputation.