More than 200 years ago, we included in our Constitution a provision that forbids federal officers from accepting a gift of any kind whatever from foreign interests without first getting permission from Congress (Article I, Section 9, the so-called Emoluments Clause). We borrowed the provision from the Netherlands, where it was ridiculed for being overly fussy about corruption. But we put it in both our Constitution and in that document’s forerunner, the Articles of Confederation, as a defense against emulating the corrupt culture of Europe.
The unlikely source of the provision was a snuff box. A few years before the constitutional convention, the King of France gave Benjamin Franklin a diamond encrusted snuff box after his diplomatic tour. Franklin did not appear to offer anything in return, but the gift nonetheless led to concerns that Franklin might be quietly corrupted by French interests—perhaps even without his knowing it.
The Americans, rigidly rejecting European custom, believed that acceptance of a luxurious gift by someone in power was itself a threat. Perhaps Franklin would be more generous toward French commercial interests simply by the operation of normal human sympathies, which to tend to be more charitable toward those who give us gifts. The framers tried to put a check on those sympathies, or at least put a block in the relationship, by requiring that Congress approve any gifts to federal officials.
Ironically, at the constitutional convention, Franklin was among the most outspoken in favor of anti-corruption provisions. His own lifelong experience with governments around the world had made him wary of the many ways in which officials could be tempted. James Madison, Thomas Jefferson, George Mason, and Franklin weren’t wrong to be concerned about foreign powers attempting to use money to buy influence and favorable treatment.
According to The New York Times, Bill Clinton received a $500,000 personal payment from a Russian bank as payment for a speech in 2010. (In some cases, Bill Clinton directs his speaking fees to the Clinton Foundation, though there’s no evidence that happened in this case.) This payment happened around the same time that Hillary Clinton’s State Department was participating in the decision-making process on the legitimacy of Russian takeover of American uranium interests (the decision was made by an inter-agency body on which State was represented, but was chaired by Treasury). Many people have raised concerns that this fee, like Benjamin Franklin’s snuff box, might have swayed Bill Clinton’s—and Hillary’s—general thinking toward Russian interests at the time.
Over the past several years, Bill Clinton has been given millions of dollars for foreign and domestic speeches, with the greatest number of sponsors coming from the financial industry. At the same time, he solicited and received millions of dollars from foreign and domestic interests, including. Many of the donors and sponsors had interests that were affected by State Department policies, and all of the donors, past and current, have interests that would be affected by a Hillary Clinton presidency.
Hillary Clinton has not addressed the issue publicly, but some of her defenders have argued that without a smoking gun, or evidence of quid pro quo, there’s nothing to be concerned about.
As the framers knew, we don’t need that in order to be concerned.
It’s not surprising that the Clintons do not want to answer questions about foreign donations. So far, they have not addressed questions about the apparent conflict of interest, leaving the Clinton Foundation to respond. (They had company: Thomas Jefferson was so annoyed by the Emoluments Clause that he hid his own later gift from the King of France, a diamond-encrusted portrait; he had his aide take out the diamonds and sell them to pay down his debt. He was not, he wrote, going to humiliate himself by going before “the gridiron of Congress.”) But as citizens we must ask these questions. Some Democrats want to ignore the issue, but love of party, as well as love of country, requires us to demand more.
I am a Democrat. I will vote Democratic in the general election. But I refuse to allow my party to be silent in the face of serious accusations of conflict of interest. There are two reasons for this. I expect that the GOP candidate will use this in 2016 to make explicit that Bill Clinton’s $500,000 went into his personal account, the one he shares with Hillary Clinton. Silence now doesn’t change the structure of the argument.
Second, I care deeply about my party, but I believe the health of a party depends upon the openness of internal debate. I do not believe accusations of outside influence are fatal, but I believe refusing to talk about them might be.
We do not have a snuff box clause for the spouses of public officials—they were not contemplated in the founding document. Instead, we have an election—a “gridiron” of sorts. Hillary Clinton cannot undo the past, but she can help explain it.
First, she can answer any questions about how she and her husband talk about foreign policy and domestic policy in light of the need to protect against donors using access to influence. They are not naive and must be aware of the political motives of donors: how did they, and do they, address these conflicts? Unlike campaign donations, which Hillary Clinton has to pursue under our current system of privately financed campaigns, these were avoidable situations. How did the Clintons think about, and manage, the efforts of donors and sponsors to influence them?
Hillary Clinton has called for a constitutional amendment to overturn Citizens United. But, ironically, her defenders are effectively using a Citizens United defense—if there’s no quid pro quo, there’s no problem. Access and influence are not corrupting. In effect, the troubling morality of Citizens United has become the official morality of Clinton’s defenders.
She can also act now to limit the threat of future corruption. She has indicated the Clinton Foundation will limit foreign donations. But to be fair to her constituents, the Clintons should separate themselves entirely from the Foundation, and immediately stop raising money. As a spouse and daughter seeking major donations, former President Clinton and Chelsea Clinton are rich targets for anyone seeking influence and access to Hillary Clinton, whether the donor is foreign or domestic. Hillary Clinton should also refuse to allow donations to her family members from people with interests before her: not because all donations are corrupt, but because the temptation is too great to use the channel for influence.
After the snuff box incident, Benjamin Franklin went on to become a leader in framing key anti-corruption provisions in the Constitution, one of the most radical of its time in demanding that we protect against appearances of corruption, because appearances can too often lead to reality.
Hillary Clinton can do the same thing by coming forward with a full press conference, severing all familial ties to the Clinton Foundation, and proposing real, concrete solutions to the modern crisis of corruption. I’m glad she is opposed to Citizens United, but a constitutional amendment reversing that decision wouldn’t address the core problem of privately financed campaigns, and the ongoing conflicts the private financing system creates.