Ginsberg Flap Puts Focus on Murky Rules

Posted August 27, 2004 at 5:43pm

The high-profile resignation of Ben Ginsberg from the Bush-Cheney campaign last week illustrates the pitfalls that political operatives face when wearing dual campaign hats, campaign-finance experts say.

Ginsberg resigned amid revelations that he was acting as an outside counsel for the presidential campaign while advising an independent 527 group that under campaign-finance law must remain fully insulated from the campaign operation of the candidate it supports.

But the case law appears to be murky, with legal experts split on the question of whether there is a way for campaign vendors, consultants and other political operatives to carry out the straddle Ginsberg attempted without tripping over so-called “coordination” regulations.

In an interview Friday, Ginsberg said he has “spent countless hours for all my political clients keeping people out of the realm of coordination.” He said that such efforts include “setting up firewalls for individual firms to be sure if they’re going to represent different entities that the same people aren’t doing it.”

Former Republican FEC Chairman Trevor Potter, now an attorney and leading campaign-finance reformer, disagreed that effective internal controls can ensure that coordination does not occur.

“If you wanted to erect walls and be careful, you would not use a common vendor,” Potter said. He cautioned that firms’ attempts to erect protective walls internally is “not the safest” way to go.

Under the Bipartisan Campaign Reform Act of 2002, advertising coordination between federal campaigns and outside groups is illegal, since such expenditures would amount to illegal “contributions” to the candidate or party benefiting.

Under complicated rules crafted by the FEC, campaign operatives run afoul of the law as soon as they communicate private plans, needs or practices of a federal candidates’ campaign to a 527 that results in a television commercial, newspaper ad, mass mailing or some other public advertisement that helps a candidate.

Ginsberg, who usually advises clients on the Byzantine details of campaign-finance law, found himself in the hot seat last week after media reports revealed the Republican attorney was advising the controversial 527 group Swift Boat Veterans for Truth, which has been airing ads challenging Kerry’s Vietnam service, while also working for the Bush campaign.

The presidential campaign of Sen. John Kerry (D-Mass.) recently filed a complaint with the FEC accusing the Swift Boat 527 of being a “Republican front group” that is “closely tied” to the Bush campaign. Democrats seized on the Ginsberg link as additional evidence that coordination may have occurred.

Both Ginsberg and the Bush campaign vehemently deny that any coordination took place and insist that Ginsberg broke no campaign-finance laws.

Ginsberg noted that Democratic election lawyers have been working in similar simultaneous adviser roles to both 527 groups and the Kerry campaign, and added that attorney-client privileges would have prevented him from sharing information between the two organizations.

FEC regulations on coordination pay particularly close attention to agents of a candidate or party, as well as former employees, independent contractors and common vendors who have worked for both a candidate or political party during the same election cycle. The regulations say that such individuals are breaking the law if they share “critical information about the campaigns plans, projects, activities or needs” with an outside group.

Several campaign-finance experts said that even though lawyers aren’t mentioned specifically in the FEC regulations on coordination, lawyers don’t enjoy any special exemption from coordination laws. In fact, lawyers may raise more flags than lower-level campaign operatives.

“When you have a common connection like that of a high-level person, it’s very fair to raise the question about what those high-level people are doing and whether or not they’ve been an avenue for coordination,” said Larry Noble, a former FEC general counsel who is now executive director of the Center for Responsive Politics.

Another campaign finance attorney, however, suggested that attorneys are less of a risk than political operatives, since a lawyer’s ethical duty to protect the confidences of their clients injects an extra safeguard into the system.

By contrast, “no such ethical rules” apply to campaign vendors and party activists.

In fact, this campaign cycle has produced numerous cases of current and former party operatives working openly for 527 groups — on both sides of the aisle.

Kerry’s former campaign manager, Jim Jordan, is serving as spokesman for two prominent pro-Democratic 527 groups, America Coming Together and the Media Fund. The Media Fund’s founder, Harold Ickes, is a sitting member of the executive board of the Democratic National Committee.

Such liberal 527 groups are relying on legal advice from the same law firms that advise the Kerry campaign and the Democratic Party — a point that infuriates Ginsberg, who feels he has been unfairly singled out by the media.

Joseph Sandler, an attorney providing advice to the liberal 527 MoveOn.org, is also counsel to the Democratic National Committee, while Perkins Coie, a firm whose political law practice is headed by Robert Bauer, serves both the Kerry campaign and providing legal expertise to 527s such as ACT. Bauer has said that his partner is actually the one serving as general counsel to Kerry’s campaign.

Ginsberg said the Dewey Square Group, a Democratic political-consulting firm that has been providing services to both the Kerry campaign and ACT, has put the right safeguards in place.

When Republicans were drawing up an FEC complaint against ACT, Ginsberg said, they decided to keep Dewey Square out of it because when GOP officials looked into it, they found that the firm did “have the proper firewalls set up.”

In its rulemaking, the FEC said that it “does not agree that the mere existence of a confidentiality agreement or ethical screen should provide a de facto bar to the enforcement of the limits.”

Without a mechanism to ensure enforcement, such private arrangements wouldn’t likely prevent circumvention of the rules, the watchdog agency concluded.

That said, legal experts note that it can be difficult to prove coordination.

“You really have to get into relationships between people, what was said, what sort of info was passed along,” Noble said.