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Friday, Apr. 13, 2001

Not since Lyndon Johnson loaded several moving vans with everything that was not nailed down in the White House has a former president earned more protracted flack for bad judgment upon leaving office than Bill Clinton. On top of the Clinton list, of course, is the midnight pardon of fugitive financier Marc Rich. That presidential action incited the unprecedented investigation by the United States Attorney for the Southern District of New York, currently proceeding apace at Foley Square.

Moreover, Congress continues its own efforts to address the former president's last moments of mercy. In an unlikely turn of events, even Senator Hillary Clinton (D. NY) joined Senator Arlen Specter (R. PA) in his proposal to require individuals who lobby a president on pardon issues to register, and to require presidents to reports gifts for a presidential library. The proposal, however, is less than inspired.

Senator Specter's Proposal

Senator Specter is doing what lawmakers typically do. It is standard congressional practice to propose a new law after an untoward event, in order to prevent a similar occurrence in the future — particularly when the unsettling incident was legal but many think it should be illegal. Thus, the first challenge for the legislation is to render otherwise legal activity illegal.

With no real chance of amending the Constitution to prevent future presidents from exercising their exclusive pardon power as they see fit, the proposal wisely avoids addressing the pardon power per se. Rather, it focuses on presidential conduct that can be regulated, and on the agents of the person being pardoned, who can similarly be regulated. The type of regulation chosen for both is public disclosure of their activity.

Disclosure of Presidential Library Contributions

Presidential libraries have become presidential memorials. Once, these libraries were rather modest places housing collections of presidential papers for scholars. Now, however, they are great edifices that not only house presidential papers and memorabilia, but also offer study institutes, endless special programs, and large staffs, all to promote the self—proclaimed greatness of their president. It was Lyndon Johnson, Richard Nixon, Jerry Ford, and Ronald Reagan who ushered in the modern presidential library. And all these libraries need money, lots of it.

Richard Nixon was a president with many sins. Yet he never solicited money for his presidential library during his presidency. Because there are no reporting requirements, it is difficult to ascertain what other past presidents have, or have not, done. However, it is known that Bill Clinton began thinking seriously about his library while still in office. Largely because Denise Rich (ex—wife of the pardoned Marc Rich) was one of his library's contributors, disclosure of such contributions in the future has been included in the proposed new law.

The proposal amends the Ethics In Government Act of 1978, requiring that the president report "all gifts, pledges, or commitments of a gift aggregating $5000 or more for the establishment of a Presidential library." It is not difficult to understand why Hillary Clinton favored this law — besides the fact it does not affect her husband, since he is out of office, and may quiet some of the controversy concerning her husband's actions. Disclosure actually provides protection.

Disclosure of Lobbying Activities

Many of the persons who might lobby a president for a pardon cannot be forced to disclose their activities. For example, there is nothing Congress can do about a prime minister of Israel calling a president of the United States to request a pardon. Congress has no jurisdiction over the prime minister. A foreign national operating outside the United States cannot be compelled to register as a lobbyist. So there is no way to deal with an Ehud Barak, who pitched Bill Clinton several times on the Marc Rich pardon.

Nor is there anything federal lawmakers can do about persons like Denise Rich and Beth Dozoretz (friend of both Rich and the president), who lobbied for the pardon. Neither of these women were hired to lobby, so it is doubtful that Congress could regulate their type of activity without running afoul of the First Amendment, which gives every American the right to petition his or her government. Bill Clinton, as president, was their government, so the petition right likely applies to protect Rich and Dozoretz's actions.

Nevertheless, a person paid to lobby, such as a lawyer, can be forced to disclose his or her activities. This is familiar ground for the Congress, and its constitutionality has been tested and proved. Indeed, Congress has been regulating lobbyists for decades. In 1946, the first comprehensive lobbying law was enacted, and in 1995, that law was broadened to cover both legislative and executive branch activities. Senator Specter seeks to amend the 1995 lobbying disclosure law to cover pardons. His proposal, however, will be largely ineffective in addressing his concern about such lobbying.

Why Senator Specter's Lobbying Proposal Will Be Ineffective

Senator Specter's bill, S. 645, would, if passed, amend the Lobbying Disclosure Act of 1995 — which requires lobbyists to register and publicly disclose to the Secretary of the Senate and the Clerk of the House of Representatives what they are doing, and for whom. The proposal would make communicating with a president or his staff about "the issuance of a grant of executive clemency [be it] a pardon, commutation of sentence, reprieve, or remission of fine" lobbying activity under the law.

Senator Specter explained on the Senate floor that he wants individual like former White House counsel Jack Quinn, who spent several months lobbying for the Marc Rich pardon, and was paid well for his efforts, covered by the disclosure law. Senator Specter believes that if Quinn's lobbying efforts had been known (to the public and also to the Southern District of the New York, which was kept out of the loop at times), then the pardon would not have been granted.

As drafted, however, Senator Specter's proposed change in the law would not give him the results he seeks. Let me explain why.

The law requires registration (and disclosure) within 45 days after the first lobbying contact. But that time period is far too long. For example, according to the most detailed, and latest recitation of the facts, published in the New York Times on April 11, 2001, Jack Quinn made his first lobbying contact (as defined under the law) on December 13, 2000, when he spoke with Deputy White House counsel Bruce Lindsey in Belfast, Ireland. The pardon was granted on January 20, 2001 — significantly less than 45 days later. Thus, Quinn — the paradigm example of the type of lobbyist Specter wants covered — would not have been covered, even had his proposed law been in effect, and thus would not legally have had to disclose his lobbying. Indeed, Quinn would not have had to register under the proposed law until January 28, 2001 — eight days after the pardon had been granted, and at a time when President Bush was in office, so that President Clinton would not even have had to weather the effects of disclosure while he was a sitting President.

I raise this anomaly — that had the proposed law been in effect, it would not have accomplished what Senator Specter wants — because it is only one of many exceptions that are not addressed by the proposal. The activities involved are more complex than the remedy proposed.

Public Disclosure May Be Counter—Productive

Indeed, both the lobbying, and library contributions, disclosure provisions proposed could produce results opposite to those Senator Specter seeks. As with the disclosure laws relating to campaign contributions, the idea that the disclosure sought by Senator Specter's bill can, by itself, address the dubious (but not illegal) activities that must be disclosed, is based on a myth.

Disclosure laws rest on the assumption that improper influence peddling, or quid pro quo official conduct, cannot prevail in the pitiless spotlight of publicity — the idea, that is, that "sunlight is a disinfectant."

This is a naïve assumption, however. It is well known by those who must disclose their dealings with the government (e.g., major campaign contributors and lobbyists) that no one really polices the disclosed information. Members of Congress largely ignore the information collected by the Secretary of the Senate and the Clerk of the House. It is collected primarily for the media, which may or may not sift through it. In addition, the information being disclosed has become so voluminous that there is little chance such sifting will occur, or if it does occur, that it will be effective in rooting out improprieties and putting them under a media magnifying glass.

In truth, disclosure laws have legitimized a form of official corruption — sanitizing activities by publicizing them. Notwithstanding the often sincere protestations of public officials who claim that they are not influenced by hefty contributions, and the glad—handing wheeler dealers who roam the corridors of power, we — and they — know better. It is a deception to believe otherwise, even if most of our public officials must live lives in apparent denial.

Before adding another disclosure law to the ineffective ones we already have, we should better understand the activities of pardon lobbying and contributing to presidential libraries themselves, asking if they are infected by quid pro quos and rotten pardons, or whether their salutary purposes are dominant. If there is a true problem, then comprehensive legislation should be drafted. Senator Specter's quick fix efforts, while well—intentioned, do not really do the job.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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