The Atlantic’s David Graham describes the “forthcoming book by Peter Schweizer [that] has excited the political world with allegations of quid pro quos, in which foreign governments gave to the Clinton Foundation and Hillary Clinton, then serving as secretary of state, did them favors—essentially alleging bribery in foreign affairs.” (For additional coverage, see Jonathan Chait, “The Disastrous Clinton Post-Presidency” or Graham, “A Quick Guide to the Questions About Clinton Cash.”)

I don’t think the real issue here is potential bribery. According to the federal bribery statute, 18 U.S. Code § 201, “a public official” receives a bribe if she or he, “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act …”

So bribery would have been committed if the Clinton Foundation accepted money “in return for” some favorable treatment by Secretary Clinton. That is the kind of quid pro quo that the Justice Department alleges in the pending case of Senator Menendez. But it isn’t how things usually work in power politics, and it isn’t the heart of our systemic problems with money in politics.

A New York Times’  news story, “Cash Flowed to Clinton Foundation Amid Russian Uranium Deal,” suggests how things actually work. A financier gives the Clinton Foundation $31.5 million. At an event with Elton John and Shakira to celebrate the gift, Ms. Clinton lauds the donor’s “remarkable combination of caring and modesty, of vision and energy and iron determination,” … adding: “I love this guy, and you should, too.” The same financier later on receives US State Department approval for a joint venture with a Russian uranium firm that affects control over this military/strategic commodity.

In a contract-based economy, parties agree to some kind of exchange before the goods, services, or money change hands. That has the advantage of efficiency and reliability. But when it comes to money and politics, such an agreement has the disadvantage of being a felony that can lead to imprisonment of no more than 15 years. There is an alternative, however–the older culture known as a gift economy. In a gift economy, goods circulate because A gives presents to B in the hopes that B will later give favors to A, but A studiously avoids any contract or explicit expectation.

The traditional reason is honor: it’s dishonorable in many societies to expect a return. In the current political environment, honor has the additional buttress of 18 U.S. Code § 201.

Yesterday’s New York Times editorial, after raising “questions about the interplay of politics and wealthy foreign donors who support the Clinton Foundation,” hastens to acknowledge: “Nothing illegal has been alleged about the foundation, the global philanthropic initiative founded by former President Bill Clinton.” However, the editorial warns, “accusations … will fester if straightforward answers are not offered to the public. [Hillary Clinton] needs to do a lot more, because this problem is not going away.”

I’m actually not sure what Ms. Clinton could do or say that would reduce criticism of the nexus between huge contributions to the Clinton Foundation, favorable treatment of its donors by the US government, and personal benefits to the Clinton family. It’s a gift economy, and exhaustive investigation is unlikely to reveal a quid pro quo or lead to any legal action (or legal exoneration).

Donors to the Clinton Foundation don’t necessarily know what they want when they give; they may have a mix of motivations, including altruism. The Clintons don’t take specific actions for donors just because of the money. But they do accept their gifts at glitzy events with Shakira and express their love for the donors. As in Beowulf, “treasures will change hands and each side will treat /the other with gifts; across the gannet’s bath,/ over the broad sea, whorled prows will bring/ presents and tokens” (Heaney trans., lines 1859-63) The public can see what this amounts to, with or without additional disclosures. The question is whether voters should tolerate it.

If we set aside the invidious motivations for–and the details of–the Indiana Religious Freedom Restoration Act, it does raise some fairly complex constitutional questions. Here are five theories that one might adopt in response:

1. The law should ban private discrimination on the basis of sexual orientation. To deny a regular service to a citizen because she or he is gay is hurtful and cruel and reinforces a whole system or culture of domination that also has serious economic and civic consequences. Therefore, such discrimination can and should be banned.

I endorse the whole premise. The questions are (a) whether the state and law are the appropriate instruments for remedying this problem, and (b) whether a conflicting interest (religious freedom) should be given any weight. We must allow individuals to do some things that we are certain are bad and wrong in order to limit government in the interest of liberty. It is not a free society that permits only good actions. Not any liberty counts, but the establishment and free exercise of religion are two explicit freedoms named in the First Amendment. To deny their relevance not only ignores the constitutional text but suggests that other forms of religious discrimination should also be illegal–for instance, that the Catholic Church should be required to ordain women. This seems a problematic implication.

2. The law should ban private discrimination on the basis of sexual orientation, with a special exception for religious freedom. The defendant in a discrimination suit would be required to demonstrate that her or his religion was clearly and stably committed to such discrimination. The defendant’s denomination would then be revealed to hold discriminatory views, with a potential cost to its reputation. If other members of the denomination were moved to contest its position on gay rights, that would be a benefit. Yet the religious liberty of the defendant would be honored.

I endorse some of this argument, but a lot rests on the definition of religion. It seems unjust to give special rights to people who believe in the existence of one or more deities. Just yesterday, the First Church of Cannabis declared its interest in selling marijuana in Indiana under the protection of the Religious Freedom Restoration Act. Why not? Also, this approach will involve the state in inquiries into religious doctrines and traditions. Is it really wise to ask a secular court to decide whether, for example, discrimination against gays is rooted in the Talmud or in some specific Protestant tract?

3. Jacob Levy’s suggestion: “private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race.”

This is a more libertarian view, more protective of individuals’ rights to choose their own contracts and relationships. It carves out a special exemption for racial discrimination in the US. (Levy teaches in Canada and is thinking about these issues globally.) I am not hostile to his position, because liberty is a very high principle and because the state is not our only instrument for changing private behavior. I would also agree that race is a unique case in the US. But a lot hangs here on the seriousness of discrimination based on sexual orientation. It’s easy for me–a straight man–to write as if religious freedom can simply be balanced against equality. If I were gay and denied a service on that basis, I would probably feel that my very personhood had been assaulted, not merely as an individual act but as part of a system or culture of oppression that also costs lives. Homophobia is a deadly problem, and perhaps the state should intervene even in private contracts to address it.

4. Forbid discrimination in certain kinds of business. Levy hints at this kind of solution when he mentions “public accommodations,” about which there is a large body of case law, legislation, and scholarship. The basic idea is that McDonald’s should be forbidden from discriminating on the basis of sexual orientation (both in hiring and in service), because it operates a mass, transactional enterprise. You pay your money; you get your burger and fries. But Elane Photography (a small New Mexico business) is not running a public accommodation. A more-or-less solo photographer may choose whom to photograph. If she chooses only to photograph opposite-sex weddings, that is allowable under the First Amendment.

I find this distinction somewhat helpful, but there is no bright line between Elane’s and McDonald’s. Furthermore, the mere fact that Elane is a small business does not make its discrimination any less hurtful.

5. Honor the small-r republican principle that the people should govern themselves by deliberating and making law. Let the people decide whether or not to ban discrimination.

I am a small-r republican and believe that collective political freedom is too often overlooked. But who is “the people?” You will get very different laws if Bloomington can decide, if Indiana decides, or if Washington takes up the issue (and probably deadlocks, leaving the status quo in place). Also, the most important reason to restrain the rights of the people to govern themselves is to protect individuals’ rights. But then again, both non-discrimination and free exercise are individual rights. The republican principle doesn’t say which one should trump popular rule.

In 2013, we used our own survey data, public data, and a literature review to assemble evidence on the effects of state voting laws on youth. I would say the highlights were:

• For young people without college experience, the existence of a photo ID law in their state predicted lower turnout in 2012, even after we included many other potential explanations in our statistical models. Photo ID requirements may also disenfranchise some eligible college students, but the law did not lower the college student turnout rate appreciably. The overall turnout effects of new photo ID rules were modest in 2o12, but these laws were met with active opposition that year, so their effects may worsen in the future.
• Allowing people to register to vote on the same day that they vote had a positive effect on youth turnout in 2012, and that finding is consistent with previous research on other elections.

We have had another election since 2013 and also seen a lot of new research using historical voting data. I would note these findings:

• Allowing early voting is often thought to increase turnout only among people who are likely to vote anyway, but Ashok, Feder, McGrath, and Hersh find some evidence that young voters who were likely to be targeted by political campaigns in the weeks before the 2012 election (because they lived in high-profile swing states), had higher turnout if they could vote early. The argument here is that young people vote when mobilized, and early voting helps mobilization efforts.
• Citrin, Green, and Levy find that informing minority voters about photo ID requirements raises their turnout (by informing these voters about the process or by making them angry about the potential barrier to their participation). It does not discourage them from voting. This is an argument for getting the word out, as long as photo ID laws are on the books. It is also a warning that photo ID laws may have worse suppressive power once the salience of these now-controversial laws declines.
• Another policy option is to allow 16- or 17-year-olds to preregister, so that they are automatically registered on their 18th birthday. That reform has the advantage of allowing outreach to occur in schools and gets youth on the rolls at the earliest possible opportunity. The sooner a young person is registered, the sooner she can be canvassed and mobilized by parties. Holbein and Hillygus find that preregistration boosts youth turnout, and they find that the youth electorate diversifies, so that Republicans do better than they would if turnout were lower.
• Keith Gunnar Bentele and Erin O’Brien argue that states are more likely to impose restrictive voting measures if they have higher minority populations, higher and/or rising minority turnout, and if the state is both competitive and has a Republican legislative majority. This is circumstantial empirical evidence in favor of the view that these restrictions have partisan motivations.