Trouble in paradise

Nearly two weeks ago, Donna Brazile penned the first of several articles to promote her new book on the 2016 election. There are multiple explosive claims; claims that reflect poorly on Hillary Clinton, on the DNC, and on the Washington swamp in general. The articles seem to confirm the impression of the general moral bankruptcy of our whole political establishment, left and right.

I have been puzzling over many aspects of these articles - her motivation, likely impact, reality of the claims, etc. I am both dubious of her motives while, at the same time, her claims match some of my perceptions. Since many of her claims seem to indicate criminal activity, I have also wondered whether Brazile's tell-all might simply be the product of someone trying to get out in front of personal indictments by becoming a very public whistle-blower. Anything is possible.

In that first article, Inside Hillary Clinton’s Secret Takeover of the DNC by Donna Brazile, she makes the claim that Obama bankrupted the DNC, that Clinton's campaign bailed out the DNC early in the election cycle but only in return for complete control over the policy and financial affairs of the DNC.

Many Sanders supporters are enraged because this confirms what Bernie Sanders said all along, that the DNC was putting its thumb on the scale on behalf of Clinton. But I think most independent observers probably knew this already. There was a preponderance of evidence already and Brazile's accusations, to the extent that they are accurate, merely confirm what was already probable.

I have not seen any conversation about one particular implication of the accusations. At the beginning of the Democrat's primary campaign season, there was plenty of commentary and criticism of the DNC's peculiar arrangement with regard to superdelegates. Basically, the DNC chooses 15% of the delegates for their convention independent of the state parties. It is essentially a mechanism for the central party to impose its will on the outcome in advance. It is why Sanders faced such an uphill battle. Not only was he an outsider but he had the delegates stacked against him from the very beginning, the DNC being staffed and controlled by Clinton insiders and therefore all the superdelegates being for Clinton.

So what I have not seen any discussion about, with the new Brazile revelations, is why Clinton ended up in such a tight primary race when she had the superdelegates sewed up, she had entire control of the leadership of the DNC and she had complete control over the DNC fund raising. It was as if she had arranged to be dealt a straight flush and struggled against a player with two pair.

The other issue arising from the first article has been the legality of the Clinton campaign actions. Braxile claims:

I wanted to believe Hillary, who made campaign finance reform part of her platform, but I had made this pledge to Bernie and did not want to disappoint him. I kept asking the party lawyers and the DNC staff to show me the agreements that the party had made for sharing the money they raised, but there was a lot of shuffling of feet and looking the other way.

When I got back from a vacation in Martha’s Vineyard, I at last found the document that described it all: the Joint Fund-Raising Agreement between the DNC, the Hillary Victory Fund, and Hillary for America.

The agreement—signed by Amy Dacey, the former CEO of the DNC, and Robby Mook with a copy to Marc Elias—specified that in exchange for raising money and investing in the DNC, Hillary would control the party’s finances, strategy, and all the money raised. Her campaign had the right of refusal of who would be the party communications director, and it would make final decisions on all the other staff. The DNC also was required to consult with the campaign about all other staffing, budgeting, data, analytics, and mailings.

I had been wondering why it was that I couldn’t write a press release without passing it by Brooklyn. Well, here was the answer.

When the party chooses the nominee, the custom is that the candidate’s team starts to exercise more control over the party. If the party has an incumbent candidate, as was the case with Clinton in 1996 or Obama in 2012, this kind of arrangement is seamless because the party already is under the control of the president. When you have an open contest without an incumbent and competitive primaries, the party comes under the candidate’s control only after the nominee is certain. When I was manager of Al Gore’s campaign in 2000, we started inserting our people into the DNC in June. This victory fund agreement, however, had been signed in August 2015, just four months after Hillary announced her candidacy and nearly a year before she officially had the nomination.

I had tried to search out any other evidence of internal corruption that would show that the DNC was rigging the system to throw the primary to Hillary, but I could not find any in party affairs or among the staff. I had gone department by department, investigating individual conduct for evidence of skewed decisions, and I was happy to see that I had found none. Then I found this agreement.

The funding arrangement with HFA and the victory fund agreement was not illegal, but it sure looked unethical. If the fight had been fair, one campaign would not have control of the party before the voters had decided which one they wanted to lead. This was not a criminal act, but as I saw it, it compromised the party’s integrity.

Pretty explosive stuff. The consequence would seem to be a clear circumvention of federal campaign laws.

Under FEC law, an individual can contribute a maximum of $2,700 directly to a presidential campaign. But the limits are much higher for contributions to state parties and a party’s national committee.

Individuals who had maxed out their $2,700 contribution limit to the campaign could write an additional check for $353,400 to the Hillary Victory Fund—that figure represented $10,000 to each of the 32 states’ parties who were part of the Victory Fund agreement—$320,000—and $33,400 to the DNC. The money would be deposited in the states first, and transferred to the DNC shortly after that. Money in the battleground states usually stayed in that state, but all the other states funneled that money directly to the DNC, which quickly transferred the money to Brooklyn.

By putting DNC accounts under complete control of the Clinton campaign, that appears to me to be a clear contravention of campaign finance law. But I am no lawyer and Washington writes its rules for itself to get around. Perhaps the clear functional violation of the law was not illegal owing to some obscure footnotes. Brazile does not explain why she thinks it was not illegal, she just makes the claim that it was not.

Ten days later I come across the first piece I have seen by experienced lawyers and they make the claim that contra-Brazile, the subordination of DNC financial accounts as a wholly owned unit of the Clinton campaign was indeed illegal. From Hillary Clinton, the DNC and the Law by Cleta Mitchell and Hans von Spakovsky.

Contributions to the DNC, even though made through the Hillary Victory Fund, were required by law to be transferred to the party and could not legally be withheld by the Clinton-designated treasurer. Nor does the law allow a single candidate to control a political party’s operations and expenditures.

National party committees have higher contribution limits than candidates do—$334,000 a year vs. $2,700 for each election. The memorandum raises the possibility that Clinton campaign took advantage of the DNC’s higher limits, then availed itself of all the resources the DNC could buy—without having any of the attendant costs or expenditures assessed against the campaign.

There are strict statutory limits on what a party committee can contribute to any candidate and what a party can spend in coordination with its candidates. We don’t like limits on the ability of parties to support their candidates. But campaign-finance zealots, egged on by media outlets (which are not subject to any limits), made certain that the McCain-Feingold law of 2002 stringently limited coordination between candidates and political parties. Although the Supreme Court struck down parts of McCain-Feingold in the 2010 Citizens United case, the coordination limits still apply. The FEC and the Justice Department should investigate the Clinton-DNC arrangement.

This leaves us with a quandary. On the one hand, it would seem that the candidate of one major party broke the campaign finance laws to the tune of $526 million. This sort of double-dealing and insider-favoritism is a cancer on our body politic and should be stamped out through fact-finding and prosecution. On the other hand, we should not be in the custom of the government prosecuting the losing party/candidate in a campaign.

I don't see an easy answer to this dilemma.