Al Gore's Phone Calls: How Serious ?

In the early 1880s, Washington newspapers routinely carried classified ads that said something like this:

"WANTED - Government job. Will remit 10 percent of salary as campaign contribution to any politician who secures me a position."

The spread of such blatant kickbacks outraged one of the era's most eloquent US legislators, Sen. George H. Pendleton (D) of Ohio. His vehement denunciation of the practice eventually prodded Congress into passing the Pendleton Act, in 1883. This anticorruption bill removed many government jobs from patronage ranks, set up the modern US civil service - and outlawed the solicitation of campaign cash on federal property.

Today, over a century after its passage, the Pendleton Act has suddenly been transformed from a dusty old statute to a vital point of interest. It's at the center of charges that Vice President Al Gore, and perhaps President Clinton, may have broken the law by making fund-raising calls from their White House offices.

But even as the Justice Department ratchets up its phone call investigation, experts continue to debate the meaning of the Pendleton law in the modern world. Telecommunications has made "place" a fungible concept, for instance. In a fund-raising phone call, where does actual solicitation occur?

And how serious is this dialing-for-dollars probe, anyway? Some experts claim it's picayune stuff - while the real outrage, the easy flow of millions of dollars of soft money into US politics, remains largely unregulated.

"We should be focusing, not on where and when Gore made phone calls, but on the fact that he needed to make them at all," says Robert Mutch, a political scientist and author of a history of US campaign fund-raising.

The legal evaluation of Mr. Gore's phone calls jumped to a new level last Friday when Attorney General Janet Reno opened a 90-day review of the vice president's conduct. By the end of the three-month period, Reno must decide whether the evidence is such that she must take the much more serious step of recommending the appointment of an independent counsel.

On Friday the Justice Department announced the beginning of a separate, 30-day probe into the possibility that Mr. Clinton also broke the law via White House fund-raising calls. The case against Gore is much more fully developed, however. Gore has acknowledged making more than 40 fund-raising calls from the White House, while Clinton says he does not recall doing anything similar.

Clinton's role in raising cash from the Oval Office is expected to be one of the primary topics of an appearance by former Deputy Chief of Staff Harold Ickes before a Senate panel today.

From a political point of view the phone call episode has clearly damaged Gore's presidential prospects. His polls have plummeted. New rivals for the 2000 Democratic nomination, such as Vermont Gov. Howard Dean, are beginning to emerge. "The Republicans have done an excellent job of making political hay out of this issue," says Paul Herrnson, a University of Maryland political scientist.

Yet the probe's legal outcome remains far from clear. The Pendleton Act, the law which covers Gore's actions, is broadly drawn. There are few precedent-setting prosecutions, and Justice Department internal guidelines conflict on important questions.

Whether Gore will be dogged by an independent prosecutor depends on how Attorney General Reno answers some basic issues, say experts. Among them: Does the Pendleton Act apply only to shakedowns? It was drawn up largely to prevent a politician from requiring a kickback from appointees. Should less-egregious acts not be prosecuted?

Secondly, where does the "solicitation" part of a phone call take place? The law prevents solicitation on federal property. But in a 1908 case, Justice Oliver Wendell Holmes famously held that the solicitation of a shakedown letter took place where and when the letter was received - not where it was written. Thus, for purposes of the law, is it more important to determine where Gore's calls went, than where they originated?

Finally, are Gore and Clinton covered by the Pendleton Act? There's legal precedent that some laws aimed at regulating officials need to specifically mention the president and vice president if they are to cover them. The Pendleton Act doesn't do that.

Still, it's entirely possible that Reno will feel she has no choice but to appoint an independent counsel. Some experts say that if she does, her act will be both warranted and irrelevant.

Their view is that the US has a system in which obvious corruption, such as the buying and selling of political favors, is perfectly legal. Senate testimony of businessman Roger Tamraz, who boasted openly of paying for access to the Oval Office, indicates as much.

Against this background, Gore's entanglement in arcane rules may not look that important, some argue.

"Even if you decide there's a clear violation of the law here ... that still amounts to a parking violation," says Donald Kettl, a University of Wisconsin political scientist. Meanwhile, campaign finance speeders are whizzing by at a hundred miles an hour. "How does this measure up to the real campaign finance questions, such as the explosion in soft money and independent expenditures?" asks Professor Kettl.