In all the coverage in the blawgosphere of the trials and tribulations (but mostly trials) of Geoffrey Fieger, which largely stemmed from the fact that it brought Gerry Spence out of hiding, one question went undiscussed.  Just how wrong was Fieger’s conduct?

Many people have read about the case, mostly to keep a keen eye on how the master would try it, handle the cross-examination and then sum it all up in such a way as to make the jury believe that a conviction of Fieger would signal the end of civilization as we know it.  But they can’t remember exactly why Fieger was being tried.  It’s time to take a look.

Walter Olson at Overlawyered brings us the post-mortem from the Detroit Free Press :

…There is no doubt that Southfield attorney Geoffrey Fieger completely subverted [the aims of campaign law] when he essentially laundered through employees of his law firm hefty contributions to the 2004 presidential campaign of John Edwards.

But can you make a federal case out of it? A U.S. District Court jury didn’t think so, refusing Monday to convict Fieger and law partner Vernon (Ven) Johnson of doing anything illegal. So congratulations to Fieger for gaming the system and then beating it.

But that doesn’t make what he did right. …

Fieger played McCain-Feingold by having his staff make campaign contributions in their own name, defeating the limits imposed on individuals, and then reimbursing them for the contributions (including paying them enough additional money to cover the tax consequences of the contribution).

Campaign finance is a controversial issue.  There’s a tension between the use of cash to subvert the democratic process, essentially buying a bigger voice and greater influence and thereby undermining the one person-one vote influence that each American is supposed to have. 

On the other hand, free political speech suggests that we are allowed to shout as loud as we want, or more importantly, as loud as we can, to support the candidate of our choice.  Campaign contributions are a tool used in the exercise of free political speech.  Our Constitution prohibits muzzling those who choose to spend their own money to further the candidacy of someone they prefer and thereby reducing their voice in the political process.

Both arguments have merit, but as with most things, a choice has to be made.  The choice, at least for the moment, favors limits on contributions.  One can disagree, but doesn’t change the law. 

Fieger is not the poster boy of free speech.  He didn’t proclaim his civil disobedience, his rejection of limits as a matter of principle.  He made a secret end-run around the law.  It was a pretty good effort at gaming the system, as it worked and he’s walking around free. 

But had it not been Geoffrey Fieger, shoveling cash as fast as he could to John Edwards, might we look at it differently?  What if it was some right-wing religious cult doing the same for their candidate?  Would it have smelled any worse?

The propriety of the conduct doesn’t change because Fieger backed the wrong horse, or a horse that doesn’t offend too many people at the moment.  And Fieger may well be correct when he claims that the extreme effort of the government was a political prosecution, going after Fieger because of who he is and who he backed while leaving others to subvert the law with impunity.

But many wrongs do not make a right.  They may properly make for an acquittal, but they don’t make gaming the system right.  In the scheme of politics, cash is indeed king.  Every elected official I know (and I count a few friends amongst the group) starts humping for dollars the day after the election victory.  The cost of running for office is shocking, and they have no choice but to beg for money or risk being targeted for defeat.  It’s a disgraceful system and disgusting problem, that our votes have to be bought in a media-driven marketplace.

Individual citizens rarely can compete with special interests, particularly corporate interests that financially dwarf us.  We are, effectively, muzzled because our nickels and dimes are inadequate to buy us a seat at the table.  We pay our taxes, obey the laws and are roundly ignored by all involved, except for the empty rhetoric that characterizes politics since they figured out that we’re too stupid to realize when they are blowing smoke up our butt.

It’s not a good thing when the cash comes from the banking industry, or the teachers union.  It’s no better when it comes from Fieger.