Exploiting the political process for personal gain will not be tolerated, and we will continue to pursue those who commit such illegal actions

 Acting Assistant Director in Charge of FBI Field Office, on the Sorenson Indictment

Mr. Kent Sorenson was indicted and now has pled guilty in a matter involving falsified campaign finance reports. One campaign paid him to switch his support from another, and the compensation was routed through other vendors to the campaign to conceal money paid for his changed candidate preference. His guilty plea covers the federal reporting violation and the obstruction of justice committed when he denied publicly that he had been paid for his switch in allegiance and asserted that anybody who doubted him could simply consult the campaign’s reports where they would not find any such compensation.

As a straightforward reporting offense, Mr. Sorenson’s case is of limited interest. But another question, presented squarely by the comments of the senior FBI official, is whether the criminal laws reach compensated political endorsements that are openly disclosed. Is it true, as this official suggests, that it is a crime to “exploit the political process for personal gain” in this way? Or that it should be?

Assume that someone like Mr. Sorenson had negotiated his change of heart, for a fee, with the understanding that he would be offered a consulting position with the campaign. Maybe he would be paid solely to speak publicly or to deliver media interviews explaining why he moved from supporting one candidate to endorsing the other. Assume, further, that the campaign disclosed this paid consulting arrangement and freely took on the burden of addressing the charge, sure to come, that the switch was devoid of political significance, representing merely a paid endorsement.

On these facts, it may be reasonable to dislike the conduct but not to make it criminal.  Aside from cases such as the sale of votes or the willful diversion of campaign finds to personal use, it does not seem that the law is put to proper or effective use in ferreting out instances of improper commercial motive in politics—especially where the motive may be mixed. The politician who pockets campaign funds for personal use cannot expect mercy: the money taken was given for campaign purposes, and he is bound to use it for that purpose alone. But where a campaign openly spends its funds to achieve political aims, and those receiving the money render the service paid for, it would appear that the voter is the best judge of the transaction.

One example is what has been referred to as the ” consultant primary”, in the course of which candidates are encouraged to retain high visibility consultants to lend their campaign credibility (and perhaps to deny the services of the same consultants to their opponents). The consultants are paid but the campaigns have wide discretion in determining the arrangements that they enter into, and there is no precise measure of how much of the payment should be charged off to the political gain to the campaign of the prominent hiring. As for the consultant, the personal gain has two facets: the payment for enlisting in the campaign, but also the longer-term soft capital developed by being sought after and associated with a leading candidate.

The difference here is not that the consultant is in business and acting for clearly commercial motives. For the consultant and the campaign understand that the hiring is meant to have a broadly political dimension – – it often functions as a form of endorsement and is meant to indicate the consultant’s judgment that the campaign is a good campaign, the candidate would make an excellent officeholder or, in a crowded field, is the more “conservative” or “liberal” or “libertarian” of the available choices.

Turning to cases like Sorenson’s, we could imagine one where the switch is motivated by politics and personal gain – – by both a political judgment that the campaign benefits from having broadly communicated, and the allure of the compensation. Perhaps the switch reflects in part a judgment that the original campaign is failing and its continuation is damaging to the party. Or perhaps it is a judgment that, upon further reflection, the candidate he first signed up with has poorly articulated the shared goals that drew him in that direction in the first place. In that case, the motives would be mixed, difficult to separate out. The failed Edwards prosecution demonstrates the perils facing the government in bringing cases against behavior arguably driven by multiple purposes.

In the commercial world, of course, federal consumer protection laws do not prohibit paid celebrity or “expert” endorsements. A company may arrange for these endorsements and it is not a legal problem, provided (among other requirements) that the business arrangement with the company is disclosed. The consumer can decide for herself how much weight to give to the endorser’s judgment. Similarly, if properly informed about the compensated nature of the arrangement, a voter could decide whether a paid political endorsement is useful – – or not.  Just as long as the voter is, in fact, an informed voter.

That’s the question, then, in the Sorenson case: transparency, not more generally the “exploitation of the political process for personal gain.”