Legal Commentary

Last night some of the MSNBC commentators were bandying around the possibility of an Obama-Clinton deal in which Clinton withdraws from the election in exchange for Obama's campaign assuming her campaign debt, among other consideration.

I find myself uncomfortable at the thought of a political bargain based upon the assumption of campaign debt. It feels like bribery to me, particularly because a substantial amount of Clinton's campaign debt is owed to Clinton personally (Mitt Romney should have only been so lucky). Is this any different than if Obama offered Clinton personally $10MM cash in unmarked, nonconsecutively numbered twenties to withdraw?

Yet I don't have the same reaction to a deal in which Clinton withdrew from the race in exchange for the vice-presidential nomination or a cabinet position. Should the fact that consideration is monetary matter? What is it that doesn't sit right about this? Is it that money is crass and office is not?

Assumption of debt as a political bargain goes back to the very beginnings of the United States--the national capital was situated in a southern site, rather than in NYC or Philadelphia in exchange for federal government assumption of state debts, a Hamiltonian bargain that immediately invested people across the states with an interest in the success of the federal enterprise. So maybe I shouldn't get worked up over this.

Yet perhaps this all points to a fine line--politics is about bargains, but some bargains are OK (I'll support your bill if you support mine OR I'll support your bill for a cabinet level appointment down the road OR I'll support your bill if you vote for my circuit court nominee), while other bargains are verboten (I'll support your bill if you pay me $100K or pay for your lawn to be mowed for a year). Others are more borderline (I'll support your bill if you: appoint my wife to an important position or get my son admission at the Naval Academy or mow my lawn for a year yourself or get a greencard for my cousin).

One distinction here might be that bargains involving likes for likes are OK (political favor for political favor), while bargains involving dissimilar consideration are not (political favor for personal favor). Another twist on this might be that bargains between politicians are given more leeway versus bargains between politicians and non-politicians, in part because only it is easier for politicians to swap political favors with each other than it is for politicians to swap with non-politicians.

I'm curious to hear if I'm the only one so bothered by an assumption of Clinton campaign debt as part of a deal (I would be less bothered, I admit, if she were not a creditor of her own campaign--I sure hope her contributions are subordinated to others'). Would this be any different if Clinton and Obama were not sitting senators, but private citizens? Or does mere candidacy push one into the a quasi-elected role? I'm also curious for thoughts on how (if at all), we might distinguish between bribery and political bargains.