More on the Hillary Clinton "access" issue

Thomas Lippman makes a point in Clinton Foundation Story Highlights DC’s Access Problem LobeLog Foreign Policy 08/29/2016 similar to the one I made in my previous post on the controversy over whether donors to the Clinton Foundation may have received preferential treatment in official business when Hillary was Secretary of State:

The outrage, however, is misdirected. This is not just about who got face time with the secretary of state; it’s about the way Washington works all the time, regardless of who is president or who is secretary of any cabinet department. Access is to people in Washington what gold is to gold miners. It is what lobbyists and trade association executives are paid to develop; it is what enables think tanks to get their policy papers to the top of the inbox. It’s why government official X or Senator Y returns this phone call instead of that one. Rarely is there a specific trade-off. In this sense Washington is no different from Albany or Sacramento or any other state capital.

Is this corruption? Angry voters may think so because the system appears to favor some insiders over ordinary folk, but the U.S. Supreme Court didn’t agree, overturning the conviction of former Virginia governor Bob McDonnell in a gifts-for-access case. Absent a specific quid pro quo, the Court ruled, it’s not corruption, even if it doesn’t pass the smell test. Similarly, the court ruled in the Citizens United case that corporate contributions to political campaigns are free speech, not corrupt purchase of access. [my emphasis]

This is an important point that understandably may not be not entirely clear to many voters. And it's a key issue in regulating campaign finances. Pay-for-play arrangements between donors and politicians are illegal. But the law can't be enforced unless an explicit quid pro quo arrangement can be proven.

One of the most famous cases in which quid pro quo was demonstrated was the FBI sting operation in the 1970s kinow as Abscam. The 2013 film American Hustle was based on the Abscam case. Ted Sherman summarized the case in Jersey Hustle: The real-life story of Abscam Inside Jersey 11/25/2016

The elaborate sting ensnared seven members of Congress, including six in the House of Representatives and a veteran U.S. Senator, along with a powerful New Jersey state legislator, three Philadelphia councilmen and a number of high-level political operatives. Abscam involved phony, oil-rich Arab sheiks with suitcases full of cash, stolen artwork, payoffs for Atlantic City casino licenses and backroom influence peddling that generated worldwide headlines and set off political shockwaves for years thereafter.

The undercover probe, which came to light in February 1980, ultimately led to the convictions of Sen. Harrison A. Williams (D-N.J.), Camden Democratic Mayor Angelo Errichetti, New Jersey Democratic Congressman Frank Thompson Jr., and other lawmakers, who were caught on secretly recorded surveillance video accepting tens of thousands of dollars in bribes.

It was a sting that still enrages defense attorneys who say it was based on crimes the government itself created. Sharply criticized by one federal district judge who accused the government of using “outrageous” tactics, the affair was flatly labeled a case of prosecutorial misconduct by a former U.S. Attorney for the District of New Jersey.

The fact that the case was a sting operation is an illustration of the difficulty of enforcing the laws against quid pro quo in campaign donations. Unless the deals are recorded or a direct participant rats out the others, it's nearly impossible to prove. People making large campaign donations for a illegal quid pro quo aren't in the habit of making written contracts spelling out the illegal obligations. In the Asbscam sting, Democratic Congressman Michael Myers was famously recorded as saying to someone he thought was a donor, "money talks and bullshit walks."

Source Watch has an entry on the Abscam bribery scandal (04/01/2008) providing details on the case.

That's why the problem has to be controlled through regulations, limits and reporting requirements on campaign donations. Wendy Brown in Undoing the Demos (2015) characterizes the Supreme Court's 2010 Citizens United decision this way, "Calling such bans an abridgement of free speech and giving corporations the standing of persons with an unqualified right to political speech, the ruling permits corporate money to overwhelm the election process." She observes that the decision "permits large corporations to finance elections, the ultimate icon of popular sovereignty in neoliberal democracy." Without the ability to regulate such campaign contributions, the ban on explicit quid pro quo is effectively meaningless.

Lippman in his final paragraph has this comment on the complexity of access issues:

The problem in the Clinton access case is not that individuals pulled whatever strings they could to gain access to her or to someone who could obtain access for them. That happens all the time, even if ordinary Americans don’t understand how the system operates. The problem is that the apparent lubricant in this case was money, which people do understand, but there are other lubricants, such as the potential for a post-government job. It would be a mistake to believe that if there were no Clinton Foundation, people would not have had some other channel by which to seek access to Secretary Clinton. The Crown Prince of Bahrain, for example, might have gone through a contact in the Navy, rather than the Foundation, because his country is home to the Fifth Fleet. Inside the Beltway, that’s what access is all about. [my emphasis]

Legal corruption, systemic corruption and pseudoscandals

Meet the Press this morning was the usual hour of gossip and horse-race chatter. The both-sides-do-it hook for the morning was, on the one hand, Trump's radical right campaign and his obscure taxes and business deals, and on the other, tacky appearances around the Clinton Foundation.

There's an important distinction to be made between breaking the law, which is normally what's implied by "corruption."

But our system in the United States is also shot through with systemic corruption, as well. And the Citizens United decision in 2010 increased that corruption by several orders of magnitude.

This does not mean that individual politicians participating in the system are bad people. Some of them are. Most are not. But even the most conscientious public officials have to be fully aware of what their major donors want on particular issues. That's why campaign finance laws need to evolve with the times. Because donors will constantly look for new ways to evade existing laws without violating them.

President Obama very often speaks in a notably more progressive mode than he has governed. What he said about the ruling just after the Supreme Court handed it down was impressive (President Obama Vows to Continue Standing Up to the Special Interests on Behalf of the American People WhiteHouse.gov) 01/23/2010:

One of the reasons I ran for President was because I believed so strongly that the voices of everyday Americans, hardworking folks doing everything they can to stay afloat, just weren’t being heard over the powerful voices of the special interests in Washington. And the result was a national agenda too often skewed in favor of those with the power to tilt the tables.

In my first year in office, we pushed back on that power by implementing historic reforms to get rid of the influence of those special interests. On my first day in office, we closed the revolving door between lobbying firms and the government so that no one in my administration would make decisions based on the interests of former or future employers. We barred gifts from federal lobbyists to executive branch officials. We imposed tough restrictions to prevent funds for our recovery from lining the pockets of the well-connected, instead of creating jobs for Americans. And for the first time in history, we have publicly disclosed the names of lobbyists and non-lobbyists alike who visit the White House every day, so that you know what’s going on in the White House – the people’s house.

We’ve been making steady progress. But this week, the United States Supreme Court handed a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself. By a 5-4 vote, the Court overturned more than a century of law – including a bipartisan campaign finance law written by Senators John McCain and Russ Feingold that had barred corporations from using their financial clout to directly interfere with elections by running advertisements for or against candidates in the crucial closing weeks. [my emphasis]

The reforms Obama brags about there were far from solving the problem, although McCain-Feingold did make some significant progress. But Obama felt the need to demonstrate that he had been trying to reduce the role of private money in politics. He certainly recognized in that speech that excessive power to financial donors was in conflict with democratic principles.

And he recognized how radical a decision Citizens United is: "This ruling strikes at our democracy itself."

He continues directly to emphasize the point:

This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections. [my emphasis]

Obama's actions to try to reverse Citizens United can be generously described as tepid in comparison to his words on that January 23.

Which is why progressives inside and outside the Democratic Party need to be able to walk and talk at the same time on the money-in-politics issue. It's certainly legitimate and necessary to defend Hillary Clinton against false charges or implications that she violated the law around donations to the Clinton Foundation. Clinton pseudoscandals ginned up by Republican ratf**kers and then magnified by the mainstream press have been one of the most pernicious features of American politics since 1992. Sean Wilentz did a memorable analysis of this phenomenon in Will Pseudo-Scandals Decide the Election? The American Prospect 12/19/2001. And that wasn't even at the halfway point of where we are now in the history of Clinton pseudoscandals. Wilentz makes an important distinction there about the qualitative turn that had occurred in the dubious American tradition of political dirt-slinging:

Of course, negative propaganda stories have been a staple of American politics from the early years of the republic, when Federalist editors denounced the Democratic-Republican Thomas Jefferson as a Jacobin atheist and traitor. Today's pseudo-scandal retains traits of classic mudslinging; above all, it involves distortion of an opponent's record and public statements. As in the past, many of today's partisan peddlers of pseudo-scandals spread them around through friendly journalists and pundits--modern equivalents of press lords like William Randolph Hearst and vicious columnists like Westbrook Pegler.

But there are also crucial differences. Recent pseudo-scandals have relied on the manipulation of the courts, congressional committees, and the now-defunct Independent Counsel Act in order to harass elected and appointed officials with flimsy accusations. And the pseudo-scandal masters have managed to gain the subtle and often unwitting but crucial complicity of the independent mainstream news media. Without the credibility provided by law and journalism, the new style of pseudo-scandal might simply be dismissed as partisan maneuvering. Coated with a gloss of objectivity, however, pseudoscandals gain a respectful hearing, vastly reinforcing the blatant tub-thumpers, fake inside-dopesters, and latter-day Peglers who appear on the cable networks and talk-radio shows as well as in the newspapers. [my emphasis]

This is also an interesting point about continuity, "Although the focus of today's pseudo-scandals is primarily political money, the direct historical antecedent is the media-friendly demagoguery pioneered by Senator Joseph McCarthy."

And the ghost of Tailgunner Joe is still with us. Charlie Pierce adopted the name Tailgunner Ted for Ted Cruz during the Republican Presidential primaries because of his slimy public persona and his fanatical hardline rightwing politics.

And Donald Trump is at only two degrees of separation from Tailgunner Joe himself. He learned much of what he knows about politics from McCarthy's notorious protege, Roy Cohn. (Olivia Nuzzi, Trump’s Mobbed Up, McCarthyite Mentor Roy Cohn Daily Beast 07/23/2015; Robert O'Harrow Jr. and Shawn Boburg, The man who showed Donald Trump how to exploit power and instill fear Washington Post 06/17/2016; Jonathan Mahler and Matt Flegenheimer, What Donald Trump Learned From Joseph McCarthy’s Right-Hand Man 06/20/2016; Michael Kruse, ‘He Brutalized For You’: How Joseph McCarthy henchman Roy Cohn became Donald Trump’s mentor Politico 04/08/2016; Trudy Ring, Roy Cohn and Donald Trump: Mentor and Protégé Advocate 08/16/2016)

Eliza Newling Carney takes a look at Hillary's Clinton's current wrestling with accusaions, Controversy Versus Corruption The American Prospect 08/205/2016. On one part of the endless e-mail controversies, she writes:

“These new emails confirm that Hillary Clinton abused her office by selling favors to Clinton Foundation donors,” said Judicial Watch President Tom Fitton in a statement. Donald Trump has dubbed the Clinton Foundation a “pay-for-play” operation, called for it to shut down, and said he would appoint a special prosecutor to investigate it.

These claims of corruption, however, have yet to be substantiated—despite microscopic scrutiny by the throngs of journalists, watchdogs, and political opponents poring over more than 30,000 Clinton emails. While the Kingdom of Bahrain did reportedly give $50,000 to $100,000 to the Clinton Foundation, the Crown Prince would likely have obtained a meeting with Clinton regardless—as would such foundation donors as rock star Bono and philanthropist Melinda Gates.

Clinton aide Huma Abedin made a point of setting up Clinton’s meeting with the Crown Prince through official channels, not via foundation officials. And, not unlike DNC donors, Clinton Foundation contributors often walked away unsatisfied. When Band asked for help obtaining a visa for a British soccer player who had a criminal past, Abedin’s response was that it made her “nervous to get involved,” to which Band replied, “Then don’t.” The visa was not granted, nor was Bono’s request for help streaming a U2 concert through the International Space Station.

Hillary's official dealings with major Clinton Foundation donors are a legitimate object for press and public scrutiny. So are those of Republican politicians:

This caution applies not just to Clinton but to Donald Trump, who runs his own foundation, and to the many politicians on both sides of the aisle who have courted controversy by raising big, undisclosed contributions for their personal nonprofits. These include Jeb Bush, the former Florida governor and unsuccessful GOP presidential hopeful, who raised large corporate donations for a Florida education nonprofit, and who was one of more than a half-dozen Republican White House candidates involved this year in secretive charitable fundraising.

Politicians' involvement with charitable contributions is something that deserves to be regulated better. It's one of those areas in which campaign-finance laws need to be continuously improved.