Dollarocracy (19 page)

Within days of the Court's clampdown on unions, it determined that states would no longer have the ability to guard against what historically has been seen as political corruption and the buying of elections. The Court's June 25, 2012, ruling in a case dealing with the Montana law Burton K. Wheeler and his colleagues had enacted a century before,
American Tradition Partnership v. Bullock
(which we discuss in
Chapter 1
), was little noticed amid the intense focus on the Court's June 28, 2012, ruling on the constitutionality of health care reforms contained in the federal Affordable Care Act. On hearing the Supreme Court had agreed to take the case, the
New York Times
hoped the move would mean the Court had come to its senses and would reject the flawed logic of the
Citizens United
decision: “A factual record would show unlimited independent expenditures can have a corrupting effect, without qualifying as quid-pro-quo bribery. It's hard to see how the court's conservative majority could contend that these expenditures pose no threat to American democracy.”
⁷⁴

No such luck. Instead, the 5–4 decision on the Montana matter has the potential to be every bit as definitional.
⁷⁵

The Court significantly expanded the scope and reach of the
Citizens United
ruling by summarily striking down state limits on corporate spending in state and local elections. “The question presented in this case is whether the holding of
Citizens United
applies to the Montana state law,” the majority wrote. “There can be no serious doubt that it does.” Translation: if Exxon Mobil wants to spend $10 million to support a favored candidate in a state legislative or city council race that might decide whether the corporation is regulated, or whether it gets new drilling rights, it can. But why stop at $10 million? If it costs $100 million to shout down the opposition, the Court says that is fine. If it costs $1 billion, that's fine, too.

What of the opposition? Can groups that represent the public interest push back? Can labor unions take a stand in favor of taxing corporations like Exxon Mobil? Not with the same freedom or flexibility that they had from the 1930s until 2012. The Court's ruling in the
Knox
case, establishing a requirement that unions get affirmative approval from workers they represent before making dues assessments to fund campaigns countering immediate threats to the livelihoods and security of those members, made sure of that.

How might it work? If Wal-Mart wanted to support candidates who promised to eliminate all state or local taxes for Wal-Mart, the corporation could spend unlimited amounts of money to do so. It would not need to gain stockholder approval. It could, the Court has confirmed, just go for it.

But if a public-employee union such as the American Federation of State, County, and Municipal Employees wants to counter Wal-Mart's argument by saying that eliminating taxes on out-of-state retailers will save consumers very little but ultimately will undermine funding for schools and public services, the union will have to go through the laborious process of gaining permission from tens of thousands, perhaps hundreds of thousands, of workers. And even then, the union will face additional reporting and structural barriers imposed by the Court.

Prior to the ruling in the Montana case, campaign-finance reformers had held out hope that states might be able to apply some restrictions on corporate spending, as Montana did with its one-hundred-year-old law barring direct corporate contributions to political parties and candidates. That law, developed to prevent the outright buying of elections by “copper kings” and “robber barons,” was repeatedly upheld by jurists. In the very case that the U.S. Supreme Court considered, the Montana Supreme Court had warned that overturning restrictions on corporate spending would create a circumstance where “candidates and the public will become mere bystanders in elections.”
⁷⁶

That was the point of the 1912 law. Well understood. And well maintained. Until June 2012.

With the Montana law's rejection by the Roberts court, said Marc Elias, one of the nation's top experts in election law, “to the extent that there was any doubt from the original
Citizens United
decision [that it] broadly applies to state and local laws, that doubt is now gone. . . . To whatever extent that door was open a crack, that door is now closed.”
⁷⁷

The man who held the Montana Senate seat from which Burton K. Wheeler had once decried the Money Power explained to the Senate what the ruling meant. “At the turn of the last century, one of the world's wealthiest men literally bought himself a seat in the U.S. Senate. His name was William Clark. And because of him, Montana passed a law in 1912 limiting the influence of wealthy corporations over our elections,” said Senator Jon Tester. “The Supreme Court's decision means we're back where we were in the past—when seats in Congress were up for sale.”
⁷⁸

Tester's colleague Bernie Sanders, the chamber's most ardent defender of the populist ethic that inspired the radical reformers of the previous century, spoke as Wheeler would have. “In his famous speech at Gettysburg during the Civil War, Abraham Lincoln talked about America as a country ‘of the people, by the people and for the people,'” recalled Sanders. “Today, as a result of the Supreme Court's refusal to reconsider its decision in
Citizens United
, we are rapidly moving toward a nation of the super-rich, by the super-rich and for the super-rich.”
⁷⁹

When billionaires can “spend hundreds of millions of dollars to buy this election for candidates who support the super-wealthy, this is not democracy,” said Sanders. “This is plutocracy.”
⁸⁰

Or as we term its current variant, Dollarocracy.

Call it “plutocracy.” Or call it “Dollarocracy.” But don't doubt that this is the reassertion of the Money Power that the Progressives of another age so feared. And don't doubt that the Money Power is paying not just for a new politics but also for a new media system, as
Chapters 4
and
5
illustrate.

It's still the nuclear weapon.

DAVID AXELROD ON THE ROLE OF
TELEVISION ADS IN CAMPAIGNS, 2011

T
o help explain the brave new world of politics in which Americans now reside, we'd like to introduce readers to Bridget McCormack.
¹
She's pretty impressive. A distinguished professor of law and associate dean at the University of Michigan, McCormack earned international recognition and a mantle full of awards and honors as the founder and codirector of the Michigan Innocence Clinic, a pioneering project to address the distinct challenges that arise when individuals are wrongfully convicted in cases where there is no DNA evidence. She's also helped to launch and expand a mediation clinic, a low-income-taxpayer clinic, an international transactions clinic, a human trafficking clinic, a juvenile justice clinic, and an entrepreneurship clinic.
²

Like a number of the nation's top lawyers, Democrat and Republican, liberal and conservative, she volunteered on a project organized by the Center for Constitutional Rights, which sought to obtain civil trials for suspects illegally detained by the U.S. government at Guantánamo Bay in Cuba. As the
New York Times
noted, the “goal was not to ‘free terrorists,' but to ensure that American prisoners were entitled to the rights and representation provided
under international and American law. The Supreme Court affirmed those rights on more than one occasion.” McCormack's involvement with the project was slim, as the prisoner she sought to represent was released by a military tribunal under a process developed by the Bush administration.

Fast-forward five years to 2012, when an opening occurred on the Michigan Supreme Court. Nominated by the Democratic Party to seek the seat in the November election, McCormack ran a classic judicial campaign, emphasizing her qualifications and promising to put the rule of law ahead of partisanship and ideology. In the final days of the race, however, she found herself under attack as a legal ally of terrorism. A slick television advertisement featured the mother of Joseph Johnson, a Michigan soldier killed in Afghanistan, saying, “My son is a hero and fought to protect us. . . . Bridget McCormack volunteered to help free a terrorist. How could you?”
³

The woman in the ad did not pay for it. Nor does it appear did anyone else in Michigan. It was paid for by a Washington-based conservative group called the Judicial Crisis Network. There was no evidence to suggest that the Judicial Crisis Network had a bone to pick with McCormack; rather, the group in all likelihood shared the concern of Michigan conservative and corporate interests about whether the High Court would retain its conservative majority. To the ad's question of “How could you?” the
Times
replied, “That's easy to answer. She didn't. Ms. Johnson may not know that, but the Republican activists who paid for the ad surely do.”

The attack on McCormack was so inappropriate that the nation's newspaper of record decried it with a lengthy editorial that declared, “Without that legal representation, there can be no justice, no system of democratic values to defend against terrorism. An attack on lawyers willing to defend Guantanamo detainees is an attack on that system. Those lawyers aren't helping our enemies; they're deeply patriotic.”
⁴
A few Michigan papers wrote about the ad as well, although they did so with headlines that only compounded the damage, including one reading “Michigan Supreme Court Candidate Defends Against Terrorism Claim.”
⁵

On those screens in Michigan homes, however, it kept running on television stations that made little or no effort to clarify that Bridget McCormack was being unfairly attacked for defending the rule of law. The television stations merely pocketed an estimated $1 million in checks from the Judicial Crisis Network,
as McCormack's campaign scrambled to raise the money needed to counter the negative image of the candidate by raising more money to pay for more ads that would further enrich the very same television stations.
⁶
McCormack won her election, in part because of her own TV ad featuring the cast of
The West Wing
promoting her virtues.
⁷

But not every candidate has a sister who played the deputy national security adviser on
The West Wing
's final three seasons and can call on Hollywood to counter dishonest attack ads.

Unfortunately, that's the option that candidates who are lied about are left with.

The uglier, the crueler, the more distorted and dishonest campaigns become, the richer local television stations across the country become. As rackets go, it's a lucrative one.

And it is this racket that has come to define American politics.

SINCE THE 1970s, there is little or no evidence of a seriously contested campaign for a consequential political office costing less than the previous campaign for that post. This is not a matter of inflation. Even in jurisdictions where population growth is stagnant, even as new technologies have made campaigning more efficient, campaign costs have risen at dramatic rates. It's not because candidates are saying more, not because their message is getting any more elegant or deeper. Indeed, as campaigns grow ever more expensive, they grow more deliberately absurd and thuggish.

What's happening here? After a brief interlude of Watergate-era campaign-finance controls, which might reasonably be thought of as the electoral equivalent of a nuclear arms control treaty, the courts began tearing up the rules and regulations, creating a political no-man's-land. That land is not the border between two belligerent states. It is the American living room. The living room war that began in the 1970s has become the costliest political conflict in the history of the world. And no one has the courage to lay his or her arms down. So it is that for forty years political campaigns have raised ever-increasing amounts of money to spend on television advertising campaigns that have become the electoral equivalent of the old Cold War concept of “mutually assured
destruction.” Candidates no longer raise the relatively modest amount of money needed to communicate their messages to voters. They raise the amount of money required to match or, ideally, surpass the spending of opponents.

Outside of war, there is no equivalent for the equation that adds up campaign costs. Economies of scale are rejected, along with simple logic. Candidates spend more time raising money in almost every election cycle. As in the Cold War, this has led to the formation of a multifaceted industry that favors not just the combatants but also the producers of the armaments. Just as Dwight Eisenhower warned about a “military-industrial complex,” we now have a money-and-media election complex, with a revenue base measured in the many billions of dollars annually. This complex has effectively become the basis of electoral politics in the United States.