With a not-guilty verdict on one count and the jury deadlocked on five others, it appears John Edwards’ federal trial on campaign-finance charges ended with a wimper, certainly from the Justice Department’s point of view.
At first blush, it can be argued that how the trial of the former U.S. senator from North Carolina ended may do little to deter politicians going forward from raking in money from supporters that with a some sleight of hand might be spent on practically anything.
After all, if a married presidential candidate, as Edwards was in 2008, can get away with supporters paying millions of dollars to hide his mistress and the baby from that affair, as was the case with Edwards, it strains the imagination to come up with what isn’t possible.
Some analysts have certainly described the case as a pre-Citizens United relic; that the 2010 Supreme Court decision made the giving of unlimited money to superPACs so relatively easy that wealthy donors can readily shovel unlimited money towards their preferred candidates, even if only indirectly.
But while the trial was a clearly a loss for the prosecutors, some analysts believe that it wasn’t a total loss for the notion of campaign-finance law.
That’s because they believe that despite the outcome, the trial sent a powerful message that while prosecutors might fail to secure a criminal conviction, they can make life miserable for any politician they target. In other words, the fact that it may keep many politicians anxiously looking over their shoulders is a good thing.
Rick Hasen, a law professor at the Loyola Law School in Los Angeles who writes the Election Law Blog, said by email:
“…The very fact that he was prosecuted is what matters — and is already causing candidates and their campaigns to be very careful. We’ve seen high profile campaign finance-related prosecutions from Edwards to Ted Stevens to Don Siegelman to Tom DeLay.
“A prosecutor looking to make a name for himself or herself has a reason to stretch the campaign laws and prosecute prominent prosecutions criminally.”
While Edwards’ acquittal could make make prosecutors less likely to bring such cases, it doesn’t mean it’s impossible that they will, he said.
And that possibility stands out there as a stark warning to politicians of what could happen if they decide to walk right up to the edge of the existing law, even with all its ambiguities as to what constitutes a campaign contribution or “willful” and “knowing” violations of the law by a political candidate.
Meridith McGehee, policy director, for the Campaign Legal Center, said despite the weaknesses in the prosecution’s case, flaws she found surprising given how high profile it was, for instance, how much of it rested on the credibility of former Edwards aide Andrew Young, the effort was worth it.
“I’m glad that they brought it. Otherwise it would be sending the signal that this kind of behavior unpunished and unexamined”
She doesn’t buy the argument that Citizens United has so turned campaign finance law so upside down that anything goes. Edwards’ wealthy supporters Rachel “Bunny” Mellon and the late Fred Barron would have still had some constraints on what they could spend on, she said:
“It’s true that Mellon and Barron could have given large and unlimited amounts to a superPAC. But that’s very different than paying off a mistress. That’s where I think the argument falls apart.
“I think even for a superPAC to some degree they have to abide by bona fide campaign expenses. Do I think they would get away with it. Hey, with this (Federal Elections Commission) they would get away with murder.”
Because the six-member FEC is has an even partisan split, it often deadlocks on enforcement measures, making in many instances little more than a paper tiger.
Like Hasen, McGehee believes the Edwards trial will make many politicians think twice before doing anything that would expose them to the sort of treatment Edwards received:
“The public flogging, if you will, will serve as a deterrent for anyone not looking to be publicly humiliated. And his family who’s humiliated. For me, the most heart-wrenching spectacle through this whole thing was watching his daughter going to court everyday and hearing what was going on with him, what was going on with her parents marriage. I don’t think how any sane individual could say ‘Oh, he didn’t get convicted. Maybe I’ll try going this route.’
“Obviouslly, politicians clearly have big egos and the blind spots those egos create. But I don’t think anyone would look at what Edwards has gone over the last few years and say ‘Oh, he got a way with it, so therefore I don’t need to be careful.’ “