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The Clinton Foundation is not a campaign finance problem

Foundations like Clinton's show the influence of the superrich, but we need new tools to address it.

Jack Ma (R), executive chair of Alibaba Group, speaks as US President Bill Clinton (L) and  Elizabeth Holmes (C), founder and CEO of Theranos, listen during the closing session of the Clinton Global Initiative 2015 on September 29, 2015, in New York City.
Jack Ma (R), executive chair of Alibaba Group, speaks as US President Bill Clinton (L) and Elizabeth Holmes (C), founder and CEO of Theranos, listen during the closing session of the Clinton Global Initiative 2015 on September 29, 2015, in New York City.
JP Yim/Getty Images

Can we call it "corruption" if some donors to the Clinton Foundation may have used those connections to ease their access to Hillary Clinton when she was secretary of state?

Ignore the fact that there's no evidence of any deal that links a donation to a meeting or a State Department action, and that most of the "donors" identified by the Associated Press last week were Nobel Peace Prize winners or other major philanthropic leaders with whom the secretary of state would meet under any circumstances. One could argue that there's an inherent conflict of interest — Clinton has a private interest in the foundation's success, which may differ from her official obligations — and thus there's an "appearance of corruption," whether the meetings had anything to do with the donation or not.

That's what four longtime campaign finance experts told Vox's Jeff Stein. And Jason Linkins at the Huffington Post noted that Clinton defenders echo the logic of the Citizens United decision itself, which suggested that only quid pro quo deals could justify regulation.

Stein's experts and Linkins are right that in the context of campaign finance, direct favors in return for official actions is not the right measure of corruption. Sometimes the deal is unstated; in other cases, the lawmaker might be persuaded simply by the amount of time he or she spends listening to a big donor. The influence of economic power can be subtle.

But is campaign finance regulation the right lens through which to see the Clinton Foundation? Consider this: If Citizens United were reversed tomorrow, nothing affecting the Clinton Foundation would change. Reverse all the bad decisions on money in politics before and since: the McCutcheon decision, Wisconsin Right to Life, Arizona Free Enterprise, Bellotti, and the 40-year-old Buckley v. Valeo, and the Clinton Foundation donors would be untouched. Enact any of the many proposed constitutional amendments to limit spending on politics, and there would still be a Clinton Foundation and the questions would be the same.

The Clinton Foundation shouldn't be judged by principles we apply to campaign contributions simply because they are not campaign contributions. Campaign spending is different, and singularly vulnerable to corruption. The $3 billion that both Clintons, together and separately, have raised for their political careers, or that politicians at every level spend much of each day soliciting, has a different hold on them than does money for a foundation and should be a much greater concern.

Campaign money is necessary, as Lawrence Lessig argues, and thus politicians are dependent on it. That creates a level of pressure that's hard for any human being to resist, because the elected official is literally dependent on that small number of people, even more than on voters, for his or her job. And that's why it's constitutionally permissible to put limits on contributions, so that public officials are not dependent on a few donors.

In Citizens United, the Court found that contributions made to independent organizations supporting a candidate did not have the same corrupting hold as direct contributions. That's the decision's big error. In reality, candidates are just as dependent on those independent expenditures and, in some recent elections, even more dependent than on their official campaign accounts.

There's a good argument that corruption, even in its loosest meaning, is too narrow a concept to serve as the only justification for campaign finance regulations. Some argue that political equality, or, as I've put it, political opportunity, should also be the goal of campaign finance regulation. But as long as you accept that corruption is the only concern — and all four campaign finance experts quoted by Stein seem to — then the only way to define it is as spending that's intended to influence an election.

And that's not what the Clinton Foundation is. Even its most caustic critics don't contend that its money is spent with the intent of promoting the election of Hillary Clinton. She doesn't draw a salary from the foundation or serve on its board. Its international development work contributes to her family's reputation, but that's an indirect benefit. She has a modest interest in the foundation's work being considered innovative and successful, which it is.

But who are we kidding? Of course there are donors who give with the expectation that it will buy them entry into the charmed circle of people who have access to the Clintons and get invited to the Clinton Global Initiative. The name has to be one of the reasons the Clinton Foundation raised so much money, even before it had good works to point to. At their best, the Clintons are drawing money to effective philanthropy that would otherwise go to less effective charity, or to private use.

And there's nothing unique about this kind of transaction. For example, on an average weeknight in Washington, DC, if you could afford it, you could attend three or four dinners at which a charity "honors" one or more senators or members of Congress who have supported the charity's cause. Lobbyists who want to see and be seen by the legislators scoop up expensive, tax-deductible tickets.

If the charities are effective, and the money would otherwise go to less beneficial uses, everyone wins, and the politician gets nothing more than a plaque. But it's all unquestionably part of Washington's ugly economy of access and fake friendship.

And then there are the dozens of other questions about philanthropy and political influence, some of which are addressed in a recent symposium in PS: Political Science and Politics, edited by Theda Skocpol. Individual philanthropists as well as foundations now have enormous influence in significant areas of public policy, such as education. Many of the people Clinton met with earned access because of the scale of their global philanthropy, which in some cases surpasses the US government's own level of aid.

While this work is usually for the good, it is yet another way in which inequality of wealth extends its reach into the public realm.

These are major issues, but trying to see them through the language and concepts of "campaign finance reform" or "money in politics" shows just how limited those concepts are. They are about elections, a protected zone in which spending and speech can legitimately be restrained, in the interest of a fair process and freedom from dependence. But to put limits on philanthropic activity or private advocacy for particular policies, outside of the election zone, is unthinkable. It would transgress the First Amendment in several ways.

That doesn't mean we should ignore the questions of access to power and unequal influence raised by modern philanthropy, the Clinton Foundation, and the access economy. But the framework is totally different. We should ask whether the level of tax exemption for these foundations is appropriate. Whether they should be obligated to spend their resources faster. Whether, since they benefit from a public subsidy, there should be some stronger measure of public or democratic accountability.

Ultimately, we should ask whether government is following the lead of philanthropy, and whether we are delegating to private philanthropy work that government should take on directly, as a public responsibility.

The Clinton Foundation, especially if it continues during a Clinton presidency, will force us to address these issues. They are central to the story of how massive economic inequality pulls and distorts public policy. But we'll need a much richer set of analytical concepts and solutions than the old "campaign finance reform" framework provides.