Trump’s moniker, “crooked Hillary,” has become standard fare in his stump speech, demonstrating his efforts to cast her and her campaign as corrupt. Just last month during a rally in New Hampshire, he scorned her for using a private email server “in order to hide her corrupt dealings,” calling for a break in a “corrupt cycle.” But before concluding that Hillary Clinton is indeed corrupt, it’s worth looking at the definition of corruption.
As Chief Justice Roberts defined it in the 2014 case, McCutcheon v. FEC, corruption is “a contribution to a particular candidate in exchange for his agreeing to do a particular act within his official duties.” The definition is encapsulated in the phrase “quid pro quo (this for that),” the one that has prevailed in the U.S. legal system.
Quid pro quo corruption would cover the case of a campaign contribution explicitly and intentionally made in exchange for a specific political favor, such as including a tax exemption that applied only to a specific company in a tax bill. The broader the official act, the less likely quid pro quo is involved. Barring clear evidence that a vote on a piece of legislation was sold to the highest bidder, an official who has accepted campaign contributions from a lobbyist and then votes for a bill favored by the lobbyist is not guilty of quid pro quo corruption. A legislator who accepts contributions from the NRA and then votes against a gun control bill is not presumed to have sold his vote to the NRA. The law presumes that the NRA is contributing to the campaign of a legislator who would have opposed the gun control measure even without the NRA contribution. It is part of politics as usual that donors give to candidates who share their views and vote in accord with those views.
Just how stringent the quid pro quo standard is with regard to corruption became clear this year in McDonnell v. United States. Former governor of Virginia Bob McDonnell had been convicted on corruption charges in Virginia. He had accepted $175,000 in loans, gifts, and vacations from Jonnie Williams Sr., who owned a company making diet supplements. This largesse on the part of Williams was rewarded with access to a variety of officials. McDonnell arranged meetings for his benefactor and attended events hosted by Williams’ company, but there was no proof that he had performed an official act on behalf of Williams. Since Virginia law at the time did not put a financial limit on the gifts that lobbyists could give to state officials (a new 2015 Virginia law sets a $100 limit on gifts from any lobbyist to a legislator or government official), illegality would turn on the “quo” that Williams received.
Speaking for a unanimous Supreme Court, Justice Roberts concluded that state prosecutors had not demonstrated a formal government action, such as an administrative decision that favored Williams, that was causally linked to the gifts. Warning of the dangers posed by criminalizing politics as usual, Roberts argued that providing access to public officials in and of itself is not corruption. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf and include them in events all the time,” he said. Roberts conceded that McDonnell’s behavior was “distasteful,” but argued against an overly broad interpretation of federal bribery statutes. McDonnell’s lawyers cited the narrow definition of corruption in Citizens United v. FEC (2010), which concluded that corruption had to go beyond “ingratiation and access.”
Herein lies the dilemma for Republicans. Republicans have vigorously defended Citizens United, a decision written by the conservative justices on the Supreme Court, from a torrent of criticism by the political left. Barack Obama was so offended by the Citizens United decision that he singled it out for criticism during his 2010 State of the Union address—with the Supreme Court justices sitting in front of him.
Clinton has pledged to appoint Supreme Court justices who would overturn Citizens United, and Republicans counter with a defense of the expansive interpretation of First Amendment free speech rights provided in the ruling. But the corollary of this expansive interpretation of free speech rights is the narrow quid pro quo conception of corruption. If Republicans embrace a more expansive conception of corruption to attack Clinton, they are at the same time eroding the conceptual foundations of Citizens United. But if Republicans embrace the narrow conception of corruption, can they legitimately berate Clinton corrupt?
Author Peter Schweizer, whose scathing indictment of the Clinton Foundation in Clinton Cash has been influential in building the “corrupt Hillary” case, admitted to George Stephanopoulos that his evidence suggested a pattern of corruption, but that he had not uncovered the smoking gun demonstrating quid pro quo corruption. Has Clinton really gone beyond the “ingratiation and access” that Justice Roberts defined as politics as usual?
But before dwelling too long on the hypocrisy of Republicans who want to narrowly define corruption in constitutional law but then pillory Clinton as corrupt using a more expansive meaning of corruption, it’s worth noting that Democrats are playing the same game. In order to criticize Citizens United, they embrace an expansive conception of corruption, but then they eagerly retreat to the quid pro quo, narrow conception to defend Clinton. Is consistency really the hobgoblin of narrow minds?
Citizens United is the legal keystone protecting a robust conception of political free speech in the modern era. Conservatives would be short-sighted to erode its conceptual foundations for the sake of short-term political gain.
Donald Brand is a professor of political science at the College of the Holy Cross in Worcester, Mass.