Hillary Clinton demonstrates that limiting campaign contributions, in an overbroad attempt to curb corruption and a misguided attempt to limit the appearance of corruption, fails to seriously address and recognize the reality of politics and the danger of government power.
For years the liberal left has been touting campaign reform in an attempt to limit donations and funds in political campaigns. These attempts have been only partially successful. Watergate was the driving force for campaign reform, having shocked the nation. The First Amendment, however, has been a constant bulwark in these misguided attempts at reformation and has permitted free speech by allowing resources to be allocated in ways that enable speech.
This attempt at broad reform led to litigation. In Buckley v. Valeo the Supreme Court correctly struck down limitations on campaign expenditures but ultimately upheld contribution limits under the rationale of avoiding “corruption or the appearance of corruption.” This has been a seminal case for campaign reform and election law. Without the appearance of corruption rationale the Court would have likely struck down the entirety of the law, since campaign donations alone are not evidence of actual corruption.
In more recent times the Court upheld the Buckley rationale in Citizens United v. FEC and McCutcheon v. FEC. These two cases dealt with limits to campaign finance in the form of independent expenditures by corporations and labor unions and aggregate contributions by a single donor, respectively. Neither could be tied sufficiently to corruption or the appearance of corruption to be justified as a proper restriction to free speech.
Since then Citizens United, in particular, has become a rallying cry for the left and its political candidates, despite the fact that independent expenditures were unlimited after Buckley until the McCain-Feingold law attempted to restrict such expenditures. Many have decried the supposed unrestricted funds a corporation may pour into the political system, however restrictions on direct contributions to a single politician are still capped. Even President Obama inaccurately condemned Citizens United on several occasions, including in a State of the Union address. His concern, though, continues to echo with the left particularly during election time.
Lost in the rhetoric and protests against the Citizens United decision and independent corporate political expenditures is the initial rationale for the campaign finance laws; which is to avoid corruption, and even the appearance of corruption, in the political system. Instead the left and the Democratic Party have railed against corporations, presuming a distorting effect, and allowed individual politicians to go unchecked. As a result a lot of money changed hands between the wealthy and some of the Democratic politicians with barely a whimper from the left.
In reality the corruption rationale has been forgotten by the parties as a principle of politics. Instead of policing corruption, parties seek to excuse it. Despite paying lip service to the objectives of campaign finance reform the Democratic Party is failing to police their own popular politicians. While this is a problem in both parties most on the right don’t appear to survive scrutiny from both sides. This was demonstrated by the recent ire against the Illinois republican who appears to have abused congressional funds, including but not limited to, using funds to redecorate his office in a Downton Abby theme. (I’m sure my wife would love one of those, just not at taxpayer’s expense). However, tighter scrutiny from both parties and their constituents is necessary and desirable.
Currently, Hillary Clinton appears to be waste deep in corruption and up to her neck in the appearance of corruption. Despite the fact that a significant amount of her political career occurred before Citizens United (2010) and nearly all of it before McCutcheon (2014). Campaign finance laws did not appear to stem the tide of money flowing to her foundation at any time, particularly while being the Secretary of State. More importantly money was pouring in from outside countries (not just corporations) that she visited as the Secretary of State (still developing). On top of all that, it appears that quid pro quo dealings occurred, most notably in Kazakhstan, though the details continue to emerge. Yet her campaign appears to be largely intact, at least for the moment. If she has not violated the actual campaign finance laws, or other corruption based laws, she has certainly abandoned the principles of avoiding corruption or the appearance of corruption.
It does not bode well that the current Democrat front runner cannot avoid, in any objective sense, the appearance of corruption, all while embracing campaign finance law as a political objective. As a result it appears disingenuous and calls into question the motivation behind embracing campaign reform. This is clearly hypocritical but what we see here is more than hypocrisy, it is a fundamental misunderstanding of speech, elections, and most importantly corruption.
Campaign finance reform has distracted from the legitimate issue of properly vetting candidates, aiming ire at contributors instead of the dirty hands that accept contributions for quid pro quo dealings or bribery. In practice campaign finance reform has clearly failed to avoid corruption, but it was never the right answer for the problem. These laws fail because campaign finance is too remote and unrelated to effectively root out corruption. Instead, the focus has been on legitimate contributions and, without evidence, classifies contributions as corruption.
Clearly money and contributions can have a corrupting influence, however this is merely secondary to the much more likely cause – that power is significantly more damaging, and that deferential policy preferences for established politicians will continually backfire and embolden cronyism or result in criminal behavior. Failing to fear political or prosecutorial retribution is much more problematic than political money. Instead, a Machiavellian state of denial has grown in the Democratic Party and as it has chosen to ignore the glaring problems with a candidate for the sake of an election. Both parties are guilty of this ends over means analysis of candidates, but the Democratic Party appears to have abandoned principles of diminishing corruption or the appearance of corruption completely in pursuit of political power.
Why then would Democratic candidates (or any candidate), some of which are hypocritical and nearly all of which have at one time benefited from contributions, so often advocate limitations on contributions? Especially a corrupt politician, assuming arguendo they are corrupt? Certainly some are genuine in their desire but only accept contributions because that is how the system works. This alone does not sufficiently explain the desire for such reform, particularly in light of the Clinton Foundation’s acceptance of money. Instead alternative explanations should be explored.
Limiting contributions, in an overbroad attempt to curb corruption and a misguided attempt to limit the appearance of corruption, fails to seriously address and recognize the reality of politics and the danger of government power. No limitation placed on election funds would prevent corruption. It does nothing to prevent abuse of power. The fact is that such corruption is much more likely with limitations in place. It gives an advantage to established politicians and incumbents. Instead of using funds to advocate for votes at the ballot box, politicians are incentivized to use government power as a means to garner votes. This is always the case, but it is exaggerated when alternative avenues are available.
Politicians will use their granted government power to appeal to voters. This is a distinct advantage over challengers, however the ability for a challenger to effectively campaign is tied directly to campaign funds. This is the primary means in which both incumbents and challengers are able to compete directly. Limiting the ability of a challenger to fundraise, even if it equally disadvantages the incumbent, is always in the favor of the incumbent. Incumbents have alternative means to campaign inherent in political offices which are unavailable to challengers. Limiting campaign funds and contributions has a two-fold impact. First it gives sitting politicians an incentive to abuse government power for reelection, including exercising power not delegated to their respective offices, and, second it creates a higher barrier to entry for politics by eliminating viable candidates who might be competitive if they are first able to overcome the initial cost of entry into the political market.
Incumbents and established politicians have less to fear politically knowing that challengers must work harder to gather resources (since caps on contributions require more donors to raise funds). Incumbents and established politicians already benefit from widespread name recognition and are familiar to voters in a way challengers are not. Campaign finance laws most adversely impact those not already exposed to the corrupting power of government, the exact opposite of the intended campaign finance reform. The rationale to curtail corruption by limiting contributions erodes under examination.
As far as I am aware Hillary Clinton is not guilty of breaking any campaign finance laws (though this will hopefully be thoroughly reviewed). But that is exactly the point – neither corruption nor the appearance of corruption are significantly related to campaign contributions (though willingness to break the law is relevant to corruption). Instead, laws that are tailored to quid pro quo relationships or bribery laws between donors and politicians are more likely to cut down on corruption, though unlikely able to do so completely. Whether Hillary Clinton is guilty of criminal misconduct is yet to be determined, though many have speculated as much. Upon consideration this should not come as a surprise. Since Clinton, incumbents and established politicians are partially insulated from political challenges due to campaign finance laws, they are more likely to abuse government power and their respective offices. The political consequences have been distanced and, as a result, the accounts detailing abuse of power rise.
Perhaps most importantly is the over reliance on these laws to prevent corruption instead of a vibrant political system. (Consider scandals such as the IRS’s treatment of conservative groups, IRS loosing emails, Benghazi’s PR spin from the White House and Sec of State, VA scandals and now the Clinton emails, not to mention the scandals from the Bill Clinton era). Unlike Nixon, who resigned due to the pressure placed on him from the threat of impeachment, we have had politicians weather similar or worse scandals without feeling substantial political consequences. Nixon walked away from the most powerful office in the Nation before the vote on impeachment could even take place, and all this on circumstantial evidence. Like Clinton the direct physical evidence was missing. 8 minutes of tape for Nixon, 30,000 or more emails from Clinton. At this point it would appear only successful prosecution could effectively end this campaign, though hopefully the political consequences eventually take effect.
Campaign finance laws have not improved politics in any measurable way. Some may respond the answer is more campaign finance laws. However this is subject to two major failings. First, this will likely be unsuccessful under our current Constitution and, second, it continues to misdiagnose the problem. As Will Spenser said, “The power of government and the corruption of government are directly proportional.” To pretend that campaign financing is the primary means of corruption is to ignore the realities of government and power. Providing insulation from political pressure will only continue to exacerbate the abuse of power and the appearance of corruption.
Though campaign finance laws do not remove corruption from government, removing them may help root out corruption. Campaign finance laws as a check on corruption, in fact or appearance, will never compare to the combination of an informed electorate and Constitutional system limiting government power. Instead of focusing on those willing to engage in the political process, as ugly as it may often be, the focus should be on those wielding power. Perhaps this scandal will bookmark the end of a failed experiment in government controlled elections. It certainly makes the case.
James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to email@example.com or follow on twitter @jcdevereaux1.