Dinesh D’Souza, who has written a book and made a movie heavily critical of Obama was indicted last week on charges of breaking federal campaign finance laws. The allegation is that he made strawman donations — reimbursing employees and friends for donating to the failed senate campaign of Wendy Long so he could exceed the $5000 campaign contribution limit. D’Souza has responded that he broke the law accidentally due to a “misunderstanding”.
This has given rise to accusations that Obama is targeting D’Souza. In particular, there has been focus on the case of Tab Turner, who organized strawman donations to the John Edwards campaign and paid a $50,000 fine. The problem is that this case is a bit cherry-picked. As noted by Reuters, these kind of prosecutions are very common although the punishment tends to be a bit inconsistent.
But if so, the politics are inscrutably Byzantine. Take Whittemore, for example. The Nevada lobbyist was accused and ultimately convicted of illegally funneling $150,000 to the re-election campaign of Senate majority leader Harry Reid. In addition to the mystery of why the Obama Justice Department would find it politically expedient to prosecute a Harry Reid supporter, there’s the twist that a Nevada developer who allegedly broke the same campaign finance laws as Whittemore by facilitating conduit payments to Reid’s campaign was never indicted and settled with the FEC. Why was one Reid supporter let off with a civil fine and the other prosecuted? Only the Justice Department knows for sure.
That very disparity, however, suggests that simple party-line retaliation doesn’t drive campaign finance enforcement decisions. In fact, if you look at the Whittemore sentencing memo, you’ll see that supporters of both Democratic and Republican candidates have been prosecuted over the last several years. And it’s not as though the Bush administration went after only Democratic boosters and the Obama Justice Department targets only Republicans. Former FEC chairman David Mason, who served on the commission from 1998 to 2008 and is now senior vice-president of compliance services at the political consulting firm Aristotle, tracks campaign finance cases closely. He told me they’re just not generally motivated by politics.
The decision to prosecute, according to Justin Shur of MoloLamken, who handled campaign finance cases in the Justice Department’s Public Integrity Section from 2008 to 2012, is usually a matter of the defendant’s intent and the magnitude of the supposed wrongdoing. “I brought cases against Democrats and Republicans alike,” Shur said.
Steven Taylor points out that if Obama were going after his enemies, D’Souza would be an odd place to start.
The conspiracy theories are amazing, as they have to assume that D’Souza is some sort of huge thorn in Obama’s side. That is, even if we stipulate for the sake of argument that Obama is willing to use the DOJ as a political tool of this type, why on earth would he be targeting D’Souza? It is a bizarre notion. If Obama was willing to sic Holder on enemies, why not Rush Limbaugh? Roger Ailes? You know, people who actually influence the discourse. Or, for that matter, Paul Ryan, Ted Cruz, etc?
D’Souza is a big figure on the Right, but he doesn’t have a lot of mainstream cache. And his career took a big hit when had to resign from King’s college after carrying on with a married woman while he was still married to his first wife. I was a big fan of D’Souza a while back — his Reagan biography is very good. But he’s sort of drifted to the margin.
But then again, a guy making $20,000 in straw man contributions to a failed Senate campaign seems an odd place to enforce federal finance law as well.
You can also check out Ken White on the difficulty D’Souza will have proving a selective prosecution.
In short, a mere suspicious appearance — like the indictment of a vigorous critic of the administration — is not enough to show unconstitutionally selective prosecution. D’Souza’s attorneys should certainly explore the issue, but it will not be an easy motion to win. The system only nominally protects rights; for the most part the system protects the system.
To sum up: the prosecution is a bit suspicious and D’Souza’s attorneys will have a chance to look into it. But I am dubious that anything will come out of this.
Regardless of what comes out in D’Souza’s discovery, I do think we should revisit campaign contribution limits. While D’Souza appears to have broken the law and should punished for breaking the law — preferably with a civil not a criminal case — the law is kind of stupid. If D’Souza had donated that money to a single-minded PAC that supported his preferred candidate, it would have been perfectly legal. What he’s being punished for is more stupidity than corruption. I’d actually prefer that we remove the facade of campaign finance laws and just let people bankroll the campaign they want to. If George Soros wants to give a $1 billion campaign contribution to Hillary Clinton, let him … as long as it’s all out in the open where we know about it. I’d much rather see politicians bought and sold honestly than through strawman PACs called things like “Americans for America”. As far as I can tell, all our campaign finance laws have accomplished nothing when it comes to cleaning up Washington. All they do is allow the occasional prosecution of someone like Dinesh D’Souza.