Tuesday, March 11, 2008

Spitzer and Clinton
Mike Rappaport

Bill, that is, not Hillary.  I am sure that I have missed it, but I haven't seen anyone comparing the misdeeds of these two chief executives.  Clinton engaged in sex with an intern and then lied about it under oath.  Spitzer engaged in sex with a prostitute, which is illegal.  Which one is worse?  Spitzer gets the boot, and Clinton is a hero to a lot of people.  I know there are distinctions, but what are the morally and legally relevant ones?  Here is one: Many people believe that prostitution should be legal; no one believes that perjury should be legal.

Update: I now see that there has been some commentary comparing Clinton and Spitzer.   My colleague Orly Lobel has written "But still, there are worse things people do in positions of power than use their private bank account to spend an evening with a girl away from home.  I for one think that a powerful married political hitting on a subordinate in his office is worse than paying someone arranged by an agency."  Of course, I was talking about that perjury thing.

But Orly's comments are interesting.  Are there worse things than spending an evening with a call girl away from home?  Of course.  My guess, from what I know about Spitzer's behavior as Attorney General, is that he did lots of worse things on the job.  Moreover, as my wife pointed out to me this morning, what was worse was that he shamed and harmed his wife and three daughters, and of course is now likely to lose his job.  Of course, that is not the result of sleeping with the call girl, it is the result of getting caught.   

Orly also raises something interesting things about sexual arousal and decisionmaking:

In their article, Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making, Ariely and Loewenstein state that it is odd that little research has been conducted on the impact of sexual arousal on judgment. Through research, they find that as aroused participants’ interest in procuring sex increased, willingness to use morally questionable methods to obtain the sex increased and probability of using protection decreased.

This is interesting, but unless I misunderstand the research, it is not relevant.  I don't think Spitzer was aroused when he arranged the call girl date, of if he was, the arousal no doubt subsided before their meeting.  It is not as if he was at a hotel bar, met a sexy women, and then brought her up to his room.  If we are speculating, my guess is that Spitzer had a power rush.  He has been elected governor and has had a rising political career.  He is arrogant and self satisfied.  He feels he is is entitled to and can get away with anything.  Not arousal, but hubris.

Or maybe this is the result of being a powerful man.  (Of course, I can only speculate about that.)  Consider this:  "It is likely that the maintenance of the high serotonin levels, a brain chemical found to be elevated in “Alpha Males,” requires frequent ego feeding. A sure way to kick up serotonin is through the dopamine-enhanced interest of a new lover. Considering that new lovers are largely interesting while they’re new, maintaining high serotonin levels demands sexual variety."  I would guess high end prostitutes fit the bill, as well. 

Maybe.  Or maybe he is just a cad, who had been doing this all along, even before he became AG.

Further Update: Wow.  Orly wrote that comment as I was responding to her.  Another case of simultaneous posting!

Another Update: Orin Kerr comments on this post, arguing that Spitzer is worse than Clinton.  Kerr interprets me as claiming that Clinton was worse.  I had not intended to make that claim.  I was genuinely asking the question who was worse.  But upon rereading the post, I certainly agree it was reasonable for Orin to interpret it as he did.

Orin makes some good points, although I don't agree with all of them.  Orin says that people knew about Clinton's affairs already, but he had denied the Flowers affair during the campaign.  Moreover, the Flowers affair didn't prepare them for his lying under oath.  Also, I am not so sure that the fact that the Paula Jones lawsuit was brought by enemies of the President matters if Clinton did the actions he was accused of.

The biggest difference, though, between the two relates to the differences between the President and a governor.  The Presidency is the single most visible and powerful office in the United States.  I am sure that many people in New York who don't know who the governor is know who the President is.  Having a President who lies under oath is therefore a much greater cost to the country.  It is more visible.  It makes people more cynical about the system.  It is a greater betrayal of trust. 

But I don't mean to be arguing that Clinton is worse.  Really.  I haven't made up my mind.  But this much is certainly true.  Spitzer is a hundred times more of a hypocrite than Clinton.

Hopefully the last update: I was reading through some of the comments to Orin's post and some do appear to have the wrong impression.   So let me make this clear:  While I believed that Clinton did commit an impeachable offense, I did not believe that the Republicans should have impeached him.   


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Mike Rappaport


Why not throw in Newt Gingrich? What are the moral issues of cheating on your wife and leaving her while she's in treatment for cancer?

Posted by: DTH | Mar 11, 2008 2:06:22 PM

I suppose I wasn't clear. I was talking about the moral issues of breaking the law, which I don't think Newt did. That said, leaving your wife while she's in treatment for cancer seems pretty despicable.

Posted by: Mike | Mar 11, 2008 2:17:18 PM

hey mike, i actually compared the two this morning, suggesting the intern is worse, in the end of my post -- http://prawfsblawg.blogs.com/prawfsblawg/2008/03/legalizing-pros.html#trackback

Posted by: Orly Lobel | Mar 11, 2008 2:27:24 PM

For fiction about prostitutes and politicians, you might enjoy Naked in Haiti: A Sexy Morality Tale About Tourists, Prostitutes & Politicians. www.dankingbooks.com will get you there.

Posted by: Dan King | Mar 12, 2008 6:03:49 AM

For fiction about prostitutes and politicians, you might enjoy Naked in Haiti: A Sexy Morality Tale About Tourists, Prostitutes & Politicians. www.dankingbooks.com will get you there.

Posted by: Dan King | Mar 12, 2008 6:05:45 AM

Spitzer's crime worse? Back in the pre-Monica days of sexual harassment, I developed the understanding that sex between individuals where there was a "power imbalance" (between employer and employee, between Senator and staffer, and therefore -- am I missing something here? -- between President and White House intern) was inherently harassment, because the weaker partner could not be said to consent to the sex. This was the reasoning at work when many many people (including Republican Senators) stated that if (emphasize IF) Anita Hill's allegations were true, that would make Clarence Thomas ineligible for high public office, and the question of whether Hill welcomed, or didn't welcome those advances was irrelevant. Can some honest feminist set me straight on these issues?

Posted by: howardl | Mar 12, 2008 6:47:16 AM

Can some honest feminist set me straight on these issues?

Don't be silly - without a "Is he good on our issues" adjustment, you are nowhere.

Posted by: Tom Maguire | Mar 12, 2008 8:03:51 AM

If we stipulated for the sake of argument that what Newt Gingrich did to his wife was despicable it still doesn't justify Elliot Spitzer breaking the Mann Act. Mr. Gingrich's relations with his ex-wife have no bearing WHATSOEVER on the case in point.

Here's the truth. If you disagree with a law there are legal and proper methods of expressing that disagreement. If abiding by the law causes hardship and suffering then you can argue for the law to be changed or forgiveness when the law is broken. There is never any justification for willfully and flagrantly breaking the law for the simple sake of pleasuring yourself. Spitzer had no problem breaking call girl rings or prosecuting men for seeking prostitutes while Attorney General. He's never spoken out once in favor of legalizing prostitution. Now that he's been caught banging a high-price call girl - and has been doing it for years - is hardly the time to bring up other people's personal lives or problems to somehow justify his actions.

Posted by: Orion | Mar 12, 2008 9:23:30 AM