Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

The latest post on Heidi Li's blog raises a provocative question about the role that bargaining plays in ordinary politics. The Blagojevich arrest has forced legal and political experts to distinguish acceptable from criminal political bargaining. Although Blagojevich's self-dealing has outraged the public, it is clear that politicians engage in dealmaking all the time.

For instance, happenstance probably does not explain why most of the top names in Obama's Cabinet either campaigned for or endorsed him at some point. While presidents often turn to political allies as Cabinet choices, Obama's selection of Clinton, whom he characterized as lacking judgment on a major foreign policy decision, likely resulted because she provided crucial support for his candidacy and helped keep enough PUMAs in the party for him to win.

Li's essay responds to an article in the L.A. Times, which states that if Governor Paterson selects Kennedy, he would benefit in the gubernatorial election because he would run on the same ticket with the famed daughter of the Kennedy dynasty. According to Li,

[I]t would be very tempting [for Paterson] to run on a ticket with somebody named Kennedy. Be that as it may, I think Governor Paterson would start to seem somewhat ethically similar to Illinois Governor Rod Blagojevich. . . . The analogy is in the notion that a sitting governor would use her or his power to appoint a Senator with her or his own narrow self-interest in as the key driver in the decision. Of course, a governor who appoints a qualified person who seems likely to understand how to use a junior Senate seat to serve well her or his constituents and the rest of the country will look better than a governor who appoints somebody with little or no experience in elected politics or legislative bodies. That is, it makes a governor look good when she or he appoints somebody who one has reason to think will make a good and effective Senator, and so, broadly speaking, a governor's self-interest is in play when she or he appoints somebody to fill a vacancy.

The news media have only recently begun to explore the messy line-drawing in this area. On Monday, the New York Times published an article on the subject, which states that:

Ever since the country’s founding, prosecutors, defense lawyers and juries have been trying to define the difference between criminality and political deal-making. They have never established a clear-cut line between the offensive and the illegal, and the hours of wiretapped conversations involving Mr. Blagojevich, filled with crass, profane talk about benefiting from the Senate vacancy, may fall into a legal gray area.

The article offers the perspective of Robert Bennett, a leading Washington, DC criminal defense lawyer, who has represented defendants charged with political corruption. According to Bennett:

[Washington] is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party . . . .You have to wonder, How much of this guy’s problem was his language, rather than what he really did?

Time Magazine's Joe Klein is less diplomatic. Klein argues that Kennedy's public job hunting and Blagojevich's blatant deal making have made the search for new Senators a "skeevy travesty."

I think it is difficult, but not impossible, to draw lines in this area. Nevertheless, in some cases legality and criminality could both reside in a complicated grey area. Blagojevich's situation is troubling because, if the criminal complaint is true, he was effectively auctioning the Senate seat. His own financial and political gain seemed to dictate exclusively how he exercised executive authority. Furthermore, securing benefits for a family members (here, a spouse) places the behavior even farther on the side of criminality.