Clinton’s Conflict of Interest: The Proof Is Not the Point

Another special guest post by H. Flannery

In the recent Democratic debate on April 14th in New York, CNN reporter Dana Bash posed this question to Senator Bernie Sanders:

“Senator Sanders, you have consistently criticized Secretary Clinton for accepting money from Wall Street. Can you name one decision that she made as senator that shows that [s]he favored banks because of the money she received?” 

After Sanders’ response, in which he talked about how the giant banks still aren’t broken up after the crash of 2007 even though they are actually larger and even more heavily invested in derivatives now than they were then, Hillary Clinton said, “Well, you can tell, Dana, he cannot come up with any example, because there is no example.”

This argument has come up time and time again during the past few months of the Democratic campaign, in which Clinton asserts that if you can’t prove conclusively that the gigantic contributions made by corporations to her campaign have influenced her past actions, then they must not have had any corrupting influence on her.

And something has been bothering me about the ineffective responses that Sanders and his supporters have been providing to answer that assertion.

Corruption is a sneaky animal. When your eyes are open to it, it is easy to see. But it is notoriously hard to prove, either logically or legally. Finding a direct, causal link between gifts of money and the actions of the recipients of that money is very difficult. When attorneys want to charge corporate officials for bribery, for example, they often have to resort to charging them for violating accounting laws by improperly labeling transactions for the money received, since they can’t prove where the money came from or went to, or whether it was used to influence a decision.

This difficulty was experienced by federal prosecutors, for example, when they tried unsuccessfully to prosecute former President Bill Clinton for bribery after he pardoned commodities trader Marc Rich on the president’s last day in office in 2001. Rich had been indicted on 65 criminal counts, including tax evasion, wire fraud, and racketeering. Clinton pardoned him not long after his wife, Denise Rich, had given a million dollars to the Democratic Party—including $100,000 for Hillary Clinton’s Senate campaign and $450,000 for the Clinton presidential library. But, as the Wall Street Journal reported at the time:

“In the case of Mr. Clinton's pardon of fugitive tax-evader Marc Rich, prosecutors already have proof of a “quo” (the pardon) and a “quid” (huge contributions to the Clinton presidential library by ex-wife Denise Rich). Their challenge is proving the elusive “pro”—that the pardon was given in exchange for those contributions, or other things of value.”

And when it comes to political campaigns, the fact that it is difficult to provide direct proof of corruption is precisely why enormous campaign contributions are so dangerous. They create an inherent conflict of interest, whether or not the politician immediately acts to do something their donors ask for. And they should be limited precisely because they are so insidious, and because their effects are not necessarily identifiable in terms of a direct quid pro quo.

No one knows this better than John Paul Stevens, the Supreme Court justice who wrote the dissenting opinion in the now infamous Citizens United decision. In his opinion, he wrote (the bolding is mine):

“On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence’, beyond the sphere of quid pro quo relationships... 

“Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices.”

Glenn Greenwald recently wrote an article for The Intercept in which he came closer to explaining this than anyone I have seen or heard recently. In his article, “To Protect Hillary Clinton, Democrats Wage War on Their Own Core Citizens United Argument,” Greenwald talks about how Democrats had formerly been arguing against the Citizens United decision because they understood that the presence of large sums of special interest money in campaigns inherently created the potential for malfeasance:

“The crux of the Citizens United ruling was that a legal ban on independent corporate campaign expenditures constituted a limit on political speech without sufficient justification, and thus violated the First Amendment’s free speech guarantee. A primary argument of the Obama Justice Department and Democrats generally in order to uphold that campaign finance law was that corporate expenditures are so corrupting of the political process that limits are justified even if they infringe free speech.”

Now, he says, Clinton’s campaign is arguing the opposite: that campaign contributions do not inherently corrupt the process, and that even if you receive large contributions from special interests, there is no reason to think that your actions will be affected by those gifts. This is the opposite of what the Obama campaign and much of the Democratic base have been accepting as understood since the court’s decision in 2010.

But the more important point here is that the Clinton campaign’s “prove it!” argument is deliberately trying to derail our natural suspicion of the corrupting influence of big money. They are trying to make us forget that the most dangerous aspects of corruption are its insidiousness and its subtlety; that in politics there is not necessarily a direct, identifiable link between money and action; that, as Justice Stevens said, corruption operates along a spectrum—from small advantages such as greater access, to large advantages such as helping to write legislation.

The reason that we are justifiably suspicious about large sums of money influencing the actions of politicians is not always because we can point to a specific action taken (or not taken) by a politician directly because of contributions made to them by outside interests. It is because the very act of accepting large sums of money from outside interests creates a conflict of interest that is inherently corrupting. And the outside interests certainly hope that their gifts do affect politicians’ behavior; that is, after all, why they are giving the money in the first place.

Transcript of the debate:
http://www.cnn.com/2016/04/14/politics/transcript-democratic-debate-hillary-clinton-bernie-sanders/

Difficulty of proving corruption in public officials: https://en.wikipedia.org/wiki/Federal_prosecution_of_public_corruption_in_the_United_States

WSJ article about Marc Rich:
http://www.wsj.com/articles/SB983494389378921301

Justice Stevens’ dissenting opinion:
https://www.law.cornell.edu/supct/pdf/08-205P.ZX

Greenwald’s article:
https://theintercept.com/2016/04/14/to-protect-clinton-democrats-wage-war-on-their-own-core-citizens-united-argument/