Why the emoluments issue matters

There is a tendency for pundits to say “Trump supporters were all motivated by this” or “Trump supporters are all like that,” but I don’t think those generalizations are very useful. I think about the only accurate generalizations would be “Trump voters were motivated by the sense that he was the better person for the job,” and “Trump supporters are all Trump supporters.”

I think a lot of Trump supporters believe that the government has been on the wrong track for years, with politicians doing nothing other than line their own pockets, pandering to special interests and lobbyists, and creating a government that does little other than waste money and get in the way. Politicians are cynical careerists who say whatever they need to say to get elected, and look down on the regular people who are actually paying their wages. Our lives are filled with unnecessary regulations enforced by petty bureaucrats who just want to protect their own cushy jobs. The supposed elite—professors, doctors, supposed experts—don’t actually know what they’re doing, have very little common sense, and no real experience with the things about which they’re pontificating. The problems that face us are crucial, but not complicated, and the solutions are straightforward but politicians (and experts generally) don’t want to go for the simple solution. If they did, they’d be out of a job.

Take, for instance, a doctor. You have a recurrent complaint, and the doctor keeps giving you different medications (or maybe does nothing at all), and they don’t actually work. And, perhaps, you changed a minor thing in your life (in my case, I changed toothpastes, which got rid of the metallic taste that had completely confused the doctor) and all is well. You might come to the conclusion that doctors act as though they’re all-knowing, but they’re just guessing. Or, you might decide that the doctor is not really fixing you because then he’d lose the money from your visits and tests. Certainly, there are cases of doctors who were ordering unnecessary surgeries in order to get the money—that’s just a fact.

It isn’t just doctors, of course. It’s anyone who claims to have special knowledge. I once had a guy at a gas station claim I needed a new alternator belt because the one I had was all cut up. (This was in the 70s, when alternator belts were notched.) There are “resume services” who will, for free, look at your resume. They’ll tell you it’s awful, and you need their services. Some people have paid for the resume revision, then resubmitted that revision for the “free” review of your resume—the service said that resume was awful, and they needed to revise it.

There are definitely politicians who just liked the prestige and power it provided, and who had no intention of doing any actual work. I’ve known people in minor positions of power who behaved that way, so I’m certain it’s true of people with as much power as even a state legislator has. And we have all been on committees or teams with people who enjoyed the process so much that they never actually wanted anything to get done. We all work in institutions that have rules and processes that have no obvious explanation other than a perverse desire to see that no really good work gets accomplished at all.

For instance, a friend worked as a computer programmer at an institution that had this process for changing anything in a program:

    1. someone submits a change request;
    2. it is reviewed by a team;
    3. if approved, the change is assigned to a programmer;
    4. the programmer comes up with a plan for responding to the request;
    5. that plan is presented to the team;
    6. the team sends that plan up the ladder for approval;
    7. if approved, the change is made;
    8. the change is tested by a quality control group;
    9. the team meets again to determine the change was good;
    10. that information is sent up the ladder.

As you can imagine, that took a long time, and a lot of meetings, and could be irritating if there was some urgency. There was a different process, however, if it wasn’t a change request, but correcting an error. So, my friend’s team took to identifying all change requests as “correcting error” requests. The result was that users were much happier, and more empowered in their jobs. They felt ownership over the programs they were using, as they could have an impact on how those programs functioned. This process was more efficient, since there were fewer meetings, and requested changes happened faster.

They were all called on the carpet because their team was producing programs with too many errors, and had to go to the less effective and less efficient process.

Every interaction with the government is like that. What should be simple—getting a driver’s license—involves forms, lines, not having the right document and so having to come back another day and stand in more lines, filling out the forms again, and then dealing with some grumpy person who makes us jump through every hoop required by a fifty-page set of regulations we’re convinced was written by legislators with nothing better to do.

I think a lot of Trump supporters were motivated by the notion that all of this nonsense is unnecessary, and a really good leader would get rid of it.

But why Trump?

Here is the narrative in which Trump seems like a good choice:

    • politicians refuse to solve the problems, so get a non-politician;
    • politicians don’t solve things because they pander to lobbyists, so get someone who is already rich and powerful enough that he doesn’t need to pander to anyone;
    • he has shown himself in ­the apprentice shows to be decisive, and to be able to make good judgments about people quickly;
    • his success in business shows that he knows how to solve problems without a lot of drama.

Added to this was the sense that

    • Obama had violated the constitution, and Democrats didn’t seem to care, so Dems are generally suspect—Trump insisted he would the constitution.

I want to focus on just three points: 1, 2, and 5.

Are there politicians who don’t really want to solve problems, but stay in office? Yes. Just as there are doctors, auto mechanics, hairdressers, therapists, lawyers, investment advisors, pet sitters, and members of every single profession who are just trying to keep getting money out of you. But, to return to the medical example: if there were, for instance, a simple solution to back pain, and all the things your doctor is making you do are just to line his pocket, then there must be some doctor out there who actually cares about patients, right? It can’t be 100%? And, really, if there were a simple solution to back pain, a doctor who patented it, or wrote a book about it, would be a millionaire, so, it would be out there.

And, of course, those books and videos are out there. There are magazines, links, books, articles that all claim “this housewife discovered the cure your doctor doesn’t want you to know about” (by the way, that selling strategy is at least a hundred years old), but those don’t work either.

So, in fact, there isn’t a simple solution to back pain. It’s complicated. It really is. And when your doctor tells you it’s complicated, she’s telling you the truth. Maybe you have a good doctor who will ensure you get the best treatment possible, and maybe you have a bad doctor who is just stringing you along, but they aren’t distinguished by which one tells you it’s complicated versus which one tells you it’s simple.

Back pain is a good example because it connects to a vexed political problem—use/abuse of painkillers. It’s absolutely clear that some people claim to have chronic pain who don’t, but they use that claim to get doctors to prescribe pain medication which they then sell to people who are just using it to get high. But it’s also clear that the regulations we set to stop those people end up creating a huge number of hoops for people who legitimately need a lot of pain medication because they really are in a lot of pain.

For my job, I have to fill out a ridiculous amount of paperwork to do something because someone else really did recently use that process to rip my employer off for $50k.

If there were an obvious solution to the problem of making sure that people who really need pain medication got all the medication they legitimately need without abusers getting any, a politician who figured that out would be the hero of all the TV shows. Perhaps some politicians would decide to take payoffs from Big Pharma or the Mafia or whoever not to go with the obvious solution, but, if it’s really obvious, at some point someone too ethical (or too ambitious) to get bought would have figured out that being The Politician to solve this problem is a golden ticket to Bigger Things.

No one has stepped forward with the obvious solution because there isn’t one. Setting huge penalties for abuse of painkillers isn’t a solution because it isn’t objectively clear whether someone is really in pain or just pretending.

There are politicians who don’t want to solve problems but just keep getting reelected. There are mechanics who don’t want to fix your car but want to bring it back. But in neither case should we assume that getting an outside will solve the problem. Get a different mechanic, but get someone who knows something about cars.

People have a tendency to assume that judgment applies across fields, but that isn’t really how it works out. You can be brilliant at math, and unable to write a check, or great at fixing computers but terrible at fixing cars. The whole point about eggheads who might be brilliant at their field is that brilliance doesn’t apply to other things.

But even setting that aside—whether Trump was, actually, successful at business (something we can’t know because we don’t know his debt load), or if such success would translate—we can know something about the “above corruption” claim.

What everyone wants—Trump supporters and their opponents—are politicians who can’t be bought, who will make decisions on the basis of what’s best for the US, and not for what will line their own pockets. We disagree about how to do that, but we agree it’s an important value.

Trump supporters believe that Trump being so rich means he doesn’t need more money. I’m not sure I’ve ever known anyone who didn’t want more money. But, ignoring that, it’s easy to tell whether Trump is that sort of person: is he trying to use his position as President to make more money?

If he is, then everything about the “he’s above special interests” collapses. If he is going to use his position to profit himself, then he is a special interest, and he will corrupt policy to make more money.

This was a major issue for the Founders, and that’s why they put into the Constitution the “emoluments” clause. This is what the conservative site, The Heritage Foundation, has to say about that clause:

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government. (http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause)

The politically conservative Economist explains the application to Trump:

DIPLOMATS from various countries have spent the past few weeks booking suites at the Trump International Hotel in Washington in the hope of ingratiating themselves with president-elect Donald Trump. The Industrial and Commerical Bank of China, whose majority stakeholder is the Chinese government, rents office space in New York City’s Trump Tower. The 35-storey Trump Office Buenos Aires development is awaiting approval from that city’s government. These are just a few of the unprecedented conflicts of interest presented by Mr Trump’s decision to retain his business empire and hand its management over to his children.  No law obliges Mr Trump to sell his assets or place them in a blind trust, though nine of the 12 presidents since the second world war have done so. But when his businesses accept money (or anything of value) from foreign governments or state-owned entities, Mr Trump may nevertheless be breaking the law. In fact, he may be violating the Constitution of the United States—and specifically, a section known as the Emoluments Clause. http://www.economist.com/blogs/economist-explains/2016/12/economist-explains-2

Thus, traditionally, Presidents have been required to take any assets they have and sell them (Carter and his farm) or put them into blind trusts. It’s useful to remember that one of the main points of the “Clinton is corrupt” argument was that she and her husband had violated this clause with their Foundation.Were Trump to do something like give favor to some countries because he has business interests with them, or require that countries trying to get political favors use his hotels, then he would have violated the emoluments clause.

More important, he would have violated one of the major arguments for voting for him—he would have shown that he can be bought, that he will use the position to line his pockets, and that he will make political decisions on the basis of what benefits him personally.

He would have shown himself to be the opposite of the person for whom Trump supporters voted. That matters.