CREW says Mellon’s and Baron’s purpose was to do a personal favor for Edwards and notes that the payments continued even after Edwards ended his campaign. Moreover, CREW argues, the payments cannot be considered campaign contributions because federal election law would prohibit the use of campaign funds for the uses to which the payments were put. In other words, Edwards could not have used campaign funds to make hundreds of thousands of dollars in payments to his mistress. Had he done so, CREW argues, he could have faced liability for misusing campaign funds.
Perhaps most significantly, CREW warns of the potential consequences of convicting Edwards based on Mellon’s and Baron’s payments to his mistress. According to CREW, the government’s position appears to rest not on Mellon’s and Baron’s intent in making the payments, but rather on the incidental benefit that Edwards’ campaign received from the payments, i.e., preserving the “family man” image that was part of Edwards’ campaign.
CREW argues that this position rests on a “near boundless theory of criminal liability” that “would sweep in anything of value given directly or indirectly to a candidate for federal office.”
So is the case really as significant as CREW suggests? Possibly yes. If payments to Edwards’ mistress were to be considered campaign “contributions” solely because of some incidental benefit received by Edwards’ campaign, the effect indeed could be far-reaching. As CREW points out, under similar reasoning, payments to a candidate to help pay off personal, private debts would be treated as campaign contributions (as opposed to gifts, which other federal laws require candidates to disclose). Any time a federal candidate received anything of value, federal campaign laws could be implicated.
From the indictment alone, it is not yet clear whether the DOJ really is advocating such a broad reading of what counts as a “contribution.” Indeed, the indictment alleges that the payments were made “in order to protect and advance Edwards’ candidacy for President.”
Nevertheless, CREW’s filing is a reminder that the proceedings against Edwards merit close attention from anyone involved in campaign finance. There is at least the potential for campaign finance laws to be extended further than ever before.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Terri Henderson, 6, center, whose mother is El Salvador, attends a rally with members of Congress at Union Station's Columbus Circle to announce the Restore Opportunity, Strengthen, and Improve the Economy (ROSIE) Act on July 29, 2014. The legislation provides incentives for government contractors to pay a living wage and other benefits that would help low-income workers.