In Defense of John Edwards

John Edwards has been indicted for alleged violations of the campaign finance laws. Not, as you might assume, because he spent campign funds to support his mistress, Rielle Hunter. Rather, because third parties (“Bunny” Mellon and Fred Baron) gave an Edwards aide money to support Ms. Hunter and, ultimately, Edwards’ baby with her, and to keep Hunter and the baby out of sight. The theory is that Mellon and Baron spent this money to help Edwards’ presidential campign, and the amounts they gave to Ms. Hunter exceeded individual donor limits, and were not reported to the Federal Elections Commission.
The indictment includes this paraphrase of the relevant law:

The Election Act’s contribution limit applied to anything of value provided for the purpose of influencing the presidential election, including…(c) payments for personal expenses of a candidate unless they would have been made irrespective of the candidacy.

That appears to be a fair summary of Sec. 113.1(g)(6) of the Federal Elections Act.
The government’s theory is that the money that third parties gave for the support of Ms. Hunter constituted campaign contributions because it went for Edwards’ “personal expenses” and would not have been given but for Edwards’ presidential candidacy. One could object, of course, that the money went for Rielle Hunter’s personal expenses, not Edwards’. Is supporting a mistress a “personal expense[] of a candidate” under the election law? I suppose you could argue that one either way.
Whether Mellon and Baron would have supported Rielle Hunter even if Edwards were not running for president is a fact question. It is certainly plausible that they would not have been willing to contribute $1,000,000 to Hunter’s support unless they thought it might enable Edwards to become president.
One wonders why Edwards needed to go to third parties to get funds to support Hunter and her baby and to keep them out of sight. He had plenty of money. The answer presumably is that even a man of Edwards’ wealth couldn’t come up with a million dollars without his wife noticing.
I am no fan of John Edwards, but this prosecution strikes me as unfortunate. Based on a quick review, it does not seem to be an indefensible application of the campaign finance laws, although the government’s theory, as Edwards’ lawyer put it, is “novel and untested.” But what’s the point? The campaign finance laws are intended to keep candidates on a level playing field. (Some would say they are mainly intended to promote the re-election of incumbents, but that is a debate for another day.) The money that was spent here didn’t go for campaign ads or get-out-the-vote efforts. It was invisible to voters. It allowed Edwards to keep his wife (and voters too, of course) in the dark about his girlfriend and baby and relieved Edwards of the need to support them. Those are hardly noble objectives, but is policing this sort of misconduct really the function of campaign finance laws?
The prosecutors tried to gild their dubious lily by including in the indictment the allegation that Edwards “made false statements” “on national television.” This was alleged to be one of the “overt acts” in furtherance of Edwards’ criminal conspiracy. But lying to reporters isn’t a crime; if it were, we would have a hard time staffing Congress. (Anthony Weiner is just the latest in a long line of politicians who illustrate the point.)
This prosecution strikes me as another step in the Criminalization of Nearly Everything. Edwards is disgraced and deserves to be. But if he didn’t otherwise commit a crime in trying to get away with hiding his mistress and child–a desperate gamble, at best–the fact that some of his friends tried to help him shouldn’t turn his sleazy behavior into a felony.

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