Stefan Passantino, General Counsel to New Gingrich, graciously replied to the posting here yesterday with a defense of his client’s position on the legal barrier to any Presidential exploratory activity.  Mr. Passantino consented to have his reply published for readers of this site:  it is here.  I do appreciate what he has  to say, though there are problems with it, noted below.

     The Gingrich Position.  Mr. Passantino states that the restrictions imposed by McCain-Feingold on the simultaneous operation of American Solutions, Mr. Gingrich’s 527, and a Gingrich Presidential exploratory committee would have been "unacceptable."  Unlike the federal Leadership PACs I cited in my post, American Solutions runs on soft money, funded with money from any source, in any amount.  For this reason, complete disassociation seemed to Mr. Gingrich and his counsel to be the only reasonable choice, particularly to meet the skepticism to be expected from "reformers."  The standard adopted by the Gingrich counsel was apparently a stringent one:  however much the risks were mitigated, however right on the law, it was not worth it to Mr. Gingrich to "deal with reckless and false allegations."

     Mr. Passantino does not go so far as to deny the availability of any legal option.  He acknowledges that a "firewall" could have been constructed to achieve separation, and concurrent operation, of an exploratory committee and American Solutions.  This would not have solved the problem, he writes, because Mr. Gingrich would not have wished, if eventually deciding to become a candidate, to surrender his position with American Solutions.  So in the end Gingrich chose Solutions over the candidacy.  "It’s a mutually exclusive option," writes Mr. Passantino, "one can raise money as a federal candidate or one can raise issues in the public square—but never both."

     Problems with the Gingrich Position.  This explanation appears to deviate from material points in Mr. Gingrich’s public explanation.  Mr. Passantino agrees that legal solutions (e.g., the firewall) were available; but Mr. Gingrich stated his continued involvement with American Solutions during an exploratory effort would have been "illegal" ("[I] could not under the McCain-Feingold censorship law…, participate in leading American Solutions while exploring a candidacy because quite simply, under McCain-Feingold, it would have been illegal.")

     If by "illegal" Mr. Gingrich meant that he would only maintain his work with Solutions on his own terms, spurning all legal protections, well, that is one clarification of what he had in mind.  It is not how he would fairly be understood.  Gingrich seemed to say he just could not do it:  he could not stay active with Solutions in some way and also explore the feasibility of a candidacy.  Mr. Passantino seems to agree that this is not quite right.

     Gingrich claims that his risks were greater because Solutions was financed with soft money.  True enough:  the risks entailed in soft money spending are real.  But the legal issues are presented, too, for hard money committees, including issues presented under the "coordination" rules specifically cited by Mr. Gingrich.  In the pre-McCain-Feingold world, the relationship of the 527 to the exploratory campaign would have required lawyering and management.  Soft money adds to the legal challenge; it does not create it.

     Finally, if the issue for Mr. Gingrich was not the exploratory phase but his unwillingness to give up Solutions for a Presidential candidacy, then he is adjusting his position.  His argument was that he could not stay with Solutions and explore a candidacy.  As a matter of law, this is wrong; he had legal options for doing both.  Though available, these solutions—including the firewall noted by Mr. Passantino—did not appeal to Gingrich:  he decided that he preferred what he was doing now, with his 527, to a Presidential campaign.

     This preference was certainly obvious, but he left his reasons unexplained for choosing one over the other, and, with all due respect for the honorable, thoughtful labors of counsel, the legal reasons Mr.Gingrich gave were counterfeit.  And if his wish is to avert any and all attacks, however ill-founded, then his complaint lies only in part with the law and much more so with politics.

     It is evidently politics, not law, that shaped Mr. Gingrich’s explanation of his decision.  Having pointed out correctly that political actors routinely use, and misuse, law to score a political point, he has devised his own political use of the law.  He seems to have put the admittedly dubious McCain-Feingold to work as a decoy, keeping the principal reasons for his abandoned exploratory campaign to himself.

Bob Bauer