Since the Supreme Court cleared the way for unlimited independent political expenditures by individuals, unions and corporations, there has been a fierce debate among academics and activists about what the term “corruption” means.
For five justices on the court, “corruption” means “quid pro quo” – a bribe, or an exchange of a favor for influence. But an almost unanimous view, certainly among Democrats, and even among many Republicans, has emerged that this is a hopelessly stunted perspective of a much richer disease. Certainly, quid pro quo is corruption. But equally certainly, it is not the only form of corruption.
Even if no deals are made, the influence of special-interest super PACs is a corrupting influence on American democracy. Even without a quid pro quo, the incredible concentration of direct contributions from a tiny fraction of the wealthiest 1 percent of the population is a corrupting influence.
Corruption is not just a contract. Corruption is also a kind of economy – an economy of influence that leads any sane soul to the fair belief that private influence has affected public policy. It is for this reason that practically every Democrat has insisted that the court’s Citizens United decision (and its progeny) needs to be reversed. It is this idea that has motivated millions to petition Congress to propose an amendment for that reversal.
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That consensus among Democrats has now been shattered by a book by conservative writer Peter Schweizer. In “Clinton Cash,” Schweizer charges Bill and Hillary Rodham Clinton with corruption. Not because there is evidence of any particular bribe. Instead, their corruption, Schweizer says, comes from a pattern of behavior: a constant (and, by the end of the book, practically grotesque) story of cash passing from people seeking the government’s favor to either Bill Clinton (and hence Hillary Clinton) or the Clinton Foundation. The rapaciousness alone is enough to give one pause: Seriously, don’t we pay former presidents enough?
Yet all this, the Clintons and their defenders insist, is not corruption because Schweizer has provided no smoking gun. He has offered “no evidence” of a quid pro quo trade.
Welcome to Wonderland: Were the alleged influencers the Koch brothers, with the same kind of pattern charged against them – their channeling support to Republican representatives, those representatives in turn acting in a way that reflected the desires of the Kochs – there would be no doubt that Democrats would rally to attack that influence as Exhibit No. 1 in the case against the corruption of Washington. But apparently now those loyal to the Democratic presidential front-runner will have to be more careful in their criticism. Apparently now the party line must be: Even if someone benefited personally, and enormously, and even if there is a repeated series of victories for those exercising their influence, there’s no corruption unless Chief Justice John Roberts would see it as corruption – meaning again, no corruption unless a quid pro quo.
Democrats need to think carefully about whether this is really a principle they want to defend – while they insist that we need to amend the Constitution to ban independent contributions and expenditures as corrupt even if no quid pro quo is shown.
Likewise, the Republicans now railing against the Clintons need to recognize just how easy it is for them to see corruption even where no one can show a quid pro quo.
We all should agree that the economy of influence that Washington has become is corrupt, the Supreme Court notwithstanding, and all finally move on to the only important question: What can we do to fix it?
On any fair reading, the pattern of behavior that Schweizer has charged is corruption. If the Clintons are going to defend against it, they need to do more than to cite Chief Justice Roberts. And soon.
Lessig is director of the Edmond J. Safra Center for Ethics at Harvard University and a professor at Harvard Law School.