On Rejecting the Clinton Defense: What Reform Democrats Need

by Lawrence Lessig

Fifty-five years ago last month, Roy Wilkins, executive secretary of the NAACP, addressing the biennial convention of the American Jewish Congress, joined a growing chorus of liberal leaders effectively declaring a boycott against Lyndon Johnson’s candidacy for president. Wilkins praised Richard Nixon and “all the Senator-candidates” — “except Senator Lyndon B. Johnson.” Three months earlier, Americans for Democratic Action had declared “Johnson Rejected” in its monthly publication. As it quoted a Democratic congressman, “ADA, union officials and colored leaders may not have the votes to put a presidential candidate across at the convention, but they sure have the votes to block a man.” Johnson was the man these groups would block.

The overwhelming sense of Wilkins’ speech is “enough.” The NAACP had just turned 51. Since its birth, it had seen great progress. But 95 years after slavery, it was finally time for America in general — and in the strong sense of the speech, the Democratic Party in particular — to make the equality of citizens its central value. The bending to the political power of southern racists had to end. “Silence [by northern whites] under these conditions means tacit approval.” African Americans were “finished,” Wilkins declared, “with segregation.” Both the “Republican and Democratic party platforms … must … speed first class citizenship for Negro Americans.”

Some of us Democrats today are in a similar place to the place Roy Wilkins was in 1960. And for the reasons his movement had then, we too should say “enough.”

The issue today isn’t the racism of the old south (though obviously, if we must still remind ourselves that #BlackLivesMatter, racism remains a central issue for modern American politics). The issue instead is corruption. And not for some priggish, moralistic reason. Modern American political corruption has become the central mechanism by which the equality of citizens in America today is denied. And fifty years after the Voting Rights Act of 1965, it’s not just African Americans who need to fight for an equal voice in our democracy. It is all Americans — or practically all Americans.

For America has evolved a political system that gives to the tiniest fraction of the 1% unprecedented political power. Almost a century ago, Texas, by law, adopted the “White Primary,” which explicitly excluded African Americans from the right to participate in selecting the candidates who could run in the General Election. Today, by practice, America has evolved a “Green Primary,” which excludes 99.9% of Americans from the right to participate in selecting the candidates who get to run in both the primary and general elections. That selection is made through money, as candidates dance before their donors (just think of Republicans dancing in the Sheldon Adelson primary), begging the rich to support them. The average American has as much power in the Green Primary as African Americans had in the White Primary. We have thus allowed money to corrupt a basic commitment to equality of citizens, just as our forbears allowed racism to corrupt the basic commitment to equality of citizens. It is finally time for at least one party to stand up and reject this Green Primary, and defend a commitment to equality among citizens.

Yet this is becoming an increasingly difficult position for Democrats to take. The leading candidate in the Democratic primary for the 2016 nomination for President has become enmeshed in a welter of stories raising questions about the relationship between the public good and the private interests of herself and her husband, including their family foundation. First a book by Peter Schweizer, then a series of articles in the New York Times, Washington Post, and Wall Street Journal, and now an investigative series by the International Business Times, all raise the question of whether the Clintons have traded public position for private gain, and more troublingly for us whether public policy has been bent by Clinton or those loyal to Clinton to encourage private gain.

The Clintons have responded to these charges by attacking their principal source. Schweizer is a partisan, they insist. They have taken issue with specific charges: Clinton was not paid to give speeches in Ireland, the campaign has said, correcting a claim made by Schweizer. And they have insisted that no one has pointed to a “smoking gun.” As George Stephanopoulos asked again and again it in a particularly harsh interview with Schweizer (before he had revealed that he himself was a donor to the Clinton Global Initiative), “Do you have any evidence that a crime may have been committed?”

This response is truly astonishing — as if the only legitimate question that can be raised about high government officials is whether they have broken the law. I am quite certain that the Clintons have not broken the law. They are both brilliant lawyers. They are both surrounded by teams of brilliant lawyers. In my view, there is zero chance that any transaction happened in a way that could trigger the incredibly narrow regulations of “quid pro quo” bribery or influence regulations.

But to suggest that criminality is the only relevant standard is to betray an astonishing blindness to the core problem of corruption in America today. When we Democrats rail against the influence of the Koch brothers, are we saying we believe the Koch brothers are criminals? That the Kochs have engaged in quid pro quo bribery with Republican representatives and members of the Senate? That if critics only looked carefully enough, they’d find a “smoking gun”? I certainly am not. Or when we ridicule the Supreme Court’s obliviousness in Citizens United to the influence of unlimited expenditures in American politics, is that because we are insisting the money is actually a quid pro quo? Because we believe that the only problem with this money is if there is a quid pro quo? Again, that’s not my understanding of the problem with the SuperPACs.

I fear we Democrats have fallen into a fatal case of denial — fatal to the cause of winning in the 2016 election. Because the defense “we are not crooks (The Clintons)” will be no more effective than the defense “I am not a crook (Nixon).” And the questions that have been raised not just by partisans but by an increasing number of reporters will be pressed again and again over the next 15 months until America can’t miss that there’s something deeply troubling here, even assuming that there is not a “crime.”

Because there is something deeply troubling here. I understand there was an norm in the 1990s that seemed to sweep the world. The ethic of Gordon Gekko. That norm celebrated extreme wealth and anything needed to secure wealth. Once liberated from office, both Clinton and his British twin, Tony Blair, seemed to think it obvious that there could no issue about them trading their enormous public influence for private wealth. I’m sure the Clinton campaign is telling the truth when it says that Peter Schweizer got specific facts wrong. But did he get the story of influence wrong? Did he get it wrong when he reported that Bill Clinton has made tens of millions of dollars speaking in places like Nigeria ($750,000) or Moscow ($500,000)? Or did he get it wrong when he alleged that those speeches and contributions to the Foundation surrounded issues that were central to the work of his wife? It is the Washington Post that has concluded that “Clinton was paid at least $26 million in speaking fees by companies and organizations that are also major donors to the foundation he created after leaving the White House.” And it is the New Yorker that has questioned the Foundation’s “structural opacity” in evading disclosure requirements. And it was liberal economist Jeffrey Sachs who has criticized the “blurry lines” between the Foundation and the Clintons. This is not the story of partisans. This is the story of a story that demands a serious response.

All of this bespeaks the ethic of Washington — the very corruption that so many Democrats have rallied against since the Supreme Court gave this movement the gift called Citizens United v. FEC.

Because there is no reason why ex-presidents need to become filthy rich. It is not an horrendous burden to live life modestly (at least for a billionaire), because that life is still miles above the life of ordinary Americans. And it is not too much to ask that the public work of Senators or Secretaries of State not be clouded by the questions that have been raised about the economy of influence, populated by some of the worst rogue leaders in the world. As Harvard’s Dennis Thompson puts it in his book, Ethics in Congress:

“Citizens have a right to insist, as the price of trust in a democracy, that officials not give reason to doubt their trustworthiness.”

That demand must be met here.

Yes, Ronald Reagan earned millions from speeches after he was President. But his wife was not a high government official. And yes, Jimmy Carter also built a Foundation after serving as President. But the donors to that foundation are not a who’s who of questionable world leaders. And when Carter gets paid to give a speech, his ordinary practice is to donate that money to his foundation.

The question we need to ask is not whether Hillary Clinton is a criminal. Of course she is not. The question is whether she can carry the mantle of a reformer. Can she really stand above the cesspool that is Washington — filled not with criminals but with decent people inside a corrupted system trying to do what they think is good — and say, this system must change. And does she really see the kind of change that is needed, when for the last 15 years, she has apparently lived a life that seems all but oblivious to exactly Washington’s problem.

The great irony of Roy Wilkin’s speech, of course, was that he was exactly wrong. The one man who it turned out could deliver to Americans a commitment to racial equality was the one man Wilkins said African Americans would not support. It is hard to read history carefully and conclude that anyone else but Johnson could have overcome the racists in the Senate, and pass the Civil Rights and then Voting Rights Bill. If Wilkins had gotten his way, Martin Luther King would never have glimpsed the Promised Land before he was killed.

But Wilkins was so wrong only because the stand he took was so right. African Americans and civil-rights activists set the bar that Johnson recognized he needed to clear. And so he cleared it. The skepticism about Johnson determined what success for Johnson would have to be. Once that target had been painted, the extraordinary ambition of perhaps America’s greatest politician carried America to a place that not even Wilkins could have dream of.

The same could be true of Hillary Clinton. There is no doubt that she is by far the most qualified candidate running for President. No one has the experience that she has. No one has the depth of knowledge. No one has the insight to the incredible burden the office of the President is.

But right now, Hillary Clinton has a Johnson problem. It is completely fair, on the basis of the record so far, for Americans to wonder whether she even gets the problem of corruption in America, and whether she recognizes its equality-destroying nature. She wants to be our “champion.” But does she even see what she must champion against?

If Clinton is to staunch the slow bleed that is the inevitable consequence of the questions that continue to be raised, she needs to speak, clearly and powerfully, to demonstrate a recognition. We need to see that she sees just why there is a problem with the mixture of influence that has surrounded her, her husband, and the Clinton Foundation. We need to have confidence that those questions won’t continue if she’s president. Will her husband continue to take hundreds of thousands of dollars to speak in third world countries? Will he praise dictators while his friends sign contracts with their corrupt regimes? Will the empire building at least pause? Or will it just continue, now fueled with the influence of the most powerful political office in the world?

And much more importantly: We need to see that Hillary Clinton understands the profound changes that America’s democracy needs — not just with money in politics, but with every flaw that denies Americans equal voice in their government. It’s not enough to make cheap promises to push a constitutional amendment, as she has done. Reversing Citizens United alone won’t fix the problem. Washington will not change until the economy of influence fueled by the lobbying-industrial-congressional complex is radically changed. And that won’t happen until Congress changes the way elections are funded.

If Clinton indeed sees this, she must show us. She must point to the changes that would end this corruption. And at the core of those changes must be a commitment to make public elections publicly funded — as the first commitment of a Clinton administration, just as Johnson made passing the Civil Rights Act the first goal of his administration.

This is the time for these questions to be raised. And answered. This is the time for reformers in the party to draw the line. The corruption of the Digital Gilded Age must finally come to an end. We need a leader who will help bring it to an end, by finally producing a democracy that respects the voice of all citizens equally.

It is 227 years since James Madison promised us a “representative democracy” “dependent on the people alone,” where “the people,” meant “not the rich more than the poor.” It is time we give that Republic a try. It is time — finally — to see whether indeed it might work.

An earlier version of this piece first appeared in The Atlantic. © 2015 Lawrence Lessig, as published by The Atlantic.