With paid speeches to big Wall Street firms and private corporations around the world, alleged sale of State Department access and favors for donations to the Clinton Foundation, and secret private contracts, Bill and Hillary Clinton have long sought the benefits of money in politics. Yet, Hillary Clinton and an array of speakers at the Democratic National Convention in Philadelphia railed against the alleged evils of the Citizens United decision, which prohibited the government from restricting independent political expenditures by a nonprofit corporation. She has also embraced a litmus test that declares her potential Supreme Court nominee must be opposed to the type of independent, First Amendment-protected, free speech that has been sustained by the Citizens United case and a series of related challenges.
Given her constantly “evolving” positions on issues like money in politics, voters across the political spectrum can be excused for skepticism regarding any sort of asserted commitment by Mrs. Clinton to reduce money in politics. Ironically, it is her transition team’s appointment of former Michigan Governor Jennifer Granholm which may lay the roots for actual corruption and indeed cause the demise of the protections for independent speech.
Independent expenditures—whether by individual, labor union, corporation, or a group of any of the above banding together through a super PAC—are by definition not made in coordination with a candidate or officeholder, or their agents. Therefore the theory behind Constitutional protections for independent political speech is that there is no appearance of corruption, let alone risk of actual corruption, because of the separation between the candidate’s team and the super PAC. The focus of courts and copious Federal Election Commission regulations have all been to avoid candidate agents from transmitting strategic political information that could thwart such independence. During my time as Counsel for Restore Our Future, the super PAC supporting 2012 Republican nominee Mitt Romney, we diligently worked to avoid any strategic contact with the Romney campaign, and we certainly never tried to enhance our fundraising capability by placing one of our super PAC leaders on the Romney transition team that was laying the groundwork for a potential presidential administration.
The Clintons, however, have no such scruples. They recently announced that Jennifer Granholm, one of the leaders of the pro-Clinton super PAC Correct the Record, would be co-chair of Mrs. Clinton’s presidential transition team. From a cynical fundraising perspective, this is brilliant. Foreign leaders and other donors knew that giving money to the Clinton Global Initiative provided access to the State Department during the Obama administration. Now any donor who wants something from the increasingly-likely new Clinton administration will know that giving money to Granholm’s super PAC will provide direct access to transition team planning.
Opponents of money in politics will complain about all super PACs, but neutral observers, and certainly an evidence-driven federal court, would have struggled to find corruption or the appearance of corruption through Restore Our Future or even Priorities USA Action contributions in 2012. Hillary Clinton has now changed that calculus by directly linking a key super PAC dedicated to supporting her with her transition team. This personnel connection indisputably provides the appearance of corruption, and if Clinton past is prologue, soon there will be actual corruption that someday will be key evidence that that courts end up considering in a challenge to the Citizens United ruling. Just as Bill Clinton’s Chinese money scandals of the late 1990s were the precursor to McCain-Feingold reforms, Hillary Clinton is ironically creating the atmosphere of corruption that may well end in her goal of rolling back Citizens United political speech protections.
Charlie Spies previously served as counsel to the Republican National Committee, Mitt Romney’s 2008 presidential campaign, and Jeb Bush’s super PAC “Right to Rise USA.” Spies currently leads Clark Hill’s national Political Law practice and Member in Charge of the DC office.