THE CONSPIRACY OF TRIVIA

By Michael Kinsley

It's often said, in trying to sort out the rights and wrongs of some public controversy, that the scandal isn't the illegal behavior--the scandal is what's legal. The press understandably tends to concentrate on whether laws were broken. This is a bright line that relieves journalists of the need to make (or, worse, be seen making) moral judgments. But in this world of sinners, the fact that some people choose to cross the line is less interesting and important than the question of where society chooses to draw the line.

Campaign finance is a perfect example. To be sure, it's bad when people break the law--especially high government officials. But as many have noted, the real scandal is how much sleazy fund raising the law allows.

There's a corollary to the notion that the scandal is what's legal: what's illegal--or arguably illegal--isn't necessarily scandalous. The press's obsession with the issue of legality can be unenlightening in this way as well, and campaign finance once again is an excellent example. Republicans and journalists are frustrated by the public's failure to rise in outrage at the daily drips of evidence that Clinton Administration figures may have broken various interpretations of the law. Maybe one reason is that these laws attempting to prevent political activity by politicians in political institutions, at least as interpreted by those flogging the scandal, seem to be a strange stew of unenforceable ideals and pointless distinctions.

How much does it matter whether the Vice President made a phone call from his office or from a hotel room? Whether he put the arm on somebody personally or let an aide do it? Whether a check was mailed or handed to someone in the White House? What is the difference between inviting contributors to the White House before their contributions and after? Between holding a political strategy session in a West Wing office and holding it in a place called the Ward Room (O.K., for some reason, since the Ward Room is near the White House mess)? The Clintonites insist that they stayed on the right side of these bizarre lines. Their critics say otherwise. It's hard to care.

C. Boyden Gray, White House counsel in the Bush Administration, has become a sort of Greek chorus of the Clinton fund-raising scandal. He pops up in the newspapers after each new revelation to intone self-righteously, We never did that in our day. This generally turns out to mean, We never did exactly that. There were cocktail parties for contributors at 1600 Pennsylvania Avenue, but "the White House per se was not used." Clinton "is giving these hour-and-a-half klatches...We would never have allowed people to pay for this kind of time in the West Wing."

In 1995, Gray hosted a fund-raising dinner at his Georgetown house where, for $20,000, you could get face time with Speaker Newt Gingrich (back when that was considered an appealing opportunity). Gray himself gave $143,910 to political candidates and committees in 1995--more than any other Washington lobbyist. These transactions didn't occur on government real estate, but are they any purer for that? Republican Senator Don Nickles signed a 1990 letter promising G.O.P. donors of $10,000 or more an invitation to the Bush White House and a chance to meet with U.S. trade officials and foreign ambassadors. Imagine the fuss if Clinton had enlisted other countries' ambassadors in his partisan fund-raising efforts. But Nickles says all this is different from Clinton's "coffees" because Bush just "dropped in on a reception. He was probably there 30 or 40 minutes." Forty minutes--harmless fun. An hour and a half--call in the special prosecutor!

On the other hand, it is absurd for the Clintonites (and the Republicans as well) to deny the basic nature of these transactions. Whether on government property or off, whether the quid comes before the quo or after, these are exchanges of money for--what? In a few cases, maybe, for nothing: people give in support of politicians whose agendas they agree with. In a few more cases, perhaps, donors are buying mere propinquity: a photograph with someone famous, a story to tell friends. In most cases, though, big political contributors have a policy agenda they are trying to advance or protect. They think giving money will help. They may sometimes be wrong about that or be conned by the fund raisers or by their own Washington representatives. But they're usually right.

It is sometimes said all that's being bought and sold is merely "access," not government policy itself. But access is worthless if it doesn't affect policy, and experience has taught those who contribute that access works. And to state the obvious: it is unfair and undemocratic for those who buy access to have a bigger voice in government than those who don't.

"In a democracy," columnist William Safire blustered last week, "no official may use government power for the political purpose of staying in power." That is silly. Taken literally, it would disqualify any activity motivated by hopes of re-election, including governing well. It reflects the fashionable but confused--and ultimately undemocratic--view that something called politics is inherently corrupt and must be isolated from the process of governing.

The goal is not to keep politics from infecting governance but to keep money from infecting politics. Comically arbitrary procedural rules that allow fund raisers on Tuesday but not Thursday, or ban donors from the White House bathtub but not the shower, don't merely miss the point. These rules also deodorize a lot of smelly behavior, even as they exaggerate the stink of other behavior that is no worse.