Today’s Supreme Court’s decision on campaign finance, McCutcheon v. Federal Election Commission, allows the wealthy to give unlimited contributions to party committees — and remember that in California we have over 50 of them — to dole out to as many candidates they want up to the legal limit. It’s a critical step in allowing money to take over politics completely. (Elimination of the $2600 federal donation limit per candidate, on the grounds that after all these other changes it too does little to prevent corruption, is surely waiting in the wings.)
This decision is one in a continuing series of death blows issued by Chief Justice John Roberts against our democratic system of governance — a series that began with the infamous Citizens United. Before I started writing here, I spent lots of time blogging on the site Daily Kos, where one can find real jewels (as well as much I won’t bother to defend.) This post is taken from one I wrote on June 27, 2011, on the decision that was a follow-up to Citizens United. The analysis — and, especially, the metaphor — still stands.
I don’t have time today to revise this post, and I’m sure that many others are doing a fine job of covering today’s awful and cynical ruling. I republish my 2011 piece simply to provide some usefuk context — and to reintroduce what I think is a very good metaphor for what the 5-4 supposedly conservative majority is doing to our political system. While the details of this decision are different, the underlying story is more of the same.
<strong>If you want to do real damage, you want to control the operating system.</strong>
In the world of computer hacking, this means that you want to get the users to install a rootkit.
<blockquote>A rootkit is software that enables continued privileged access to a computer while actively hiding its presence from administrators by subverting standard operating system functionality or other applications. The term rootkit is a concatenation of “root” (the traditional name of the privileged account on Unix operating systems) and the word “kit” (which refers to the software components that implement the tool). The term “rootkit” has negative connotations through its association with malware.</blockquote>
The top priority of the Roberts Court has been to install a rootkit in our political system. Control the operating system and you can make any changes you want to down the line.
The operating system of our political system is elections — campaigns and elections. Control those, and even the Constitution will bend to your will.
Today [here meaning June 27, 2011], the Supreme Court uploaded another rootkit — and it is malware of the worst kind.
<blockquote>In its first campaign-finance decision since its 5-to-4 ruling in the Citizens United case last year, the Supreme Court on Monday struck down an Arizona law that provided escalating matching funds to candidates who accept public financing.
The vote was again 5-to-4, with the same five justices in the majority as in the Citizens United decision. The majority’s rationale was that the law violated the First Amendment rights of candidates who raise private money. Such candidates, the majority said, may be reluctant to spend money to speak if they know that it will give rise to counter-speech paid for by the government.</blockquote>
They are not really even trying to make sense anymore. This is a brazen attack on the operating system. The rebuttal is simple enough that a first grader could figure it out — “won’t candidates also be reluctant to spend money to speak if they know that it will be drowned out by someone with a louder megaphone?”
Yes, it will. That’s the point; that’s the intent. They want people to give up on trying to fight back against money in politics. Control the operating system and you can control everything else, whenever the time suits you — forever.
<blockquote>Typically, an attacker installs a rootkit on a computer after first obtaining root-level access, either by exploiting a known vulnerability or by obtaining a password (either by cracking the encryption, or through social engineering). Once a rootkit is installed, it allows an attacker to mask the ongoing intrusion and maintain privileged access to the computer by circumventing normal authentication and authorization mechanisms. Although rootkits can serve a variety of ends, they have gained notoriety primarily as malware, hiding applications that appropriate computing resources or steal passwords without the knowledge of administrators and users of affected systems. Rootkits can target firmware, a hypervisor, the kernel, or—most commonly—user-mode applications.</blockquote>
The point of this malware attack is not simply to go after victories in specific elections. That’s child’s play. The point is to make effectively standing up to money in politics /unthinkable/. The past decades have seen a mortifying shift of wealth to the already rich. A good and overlooked post from last week asked the question What do the top 0.1% do with their cash? Great question — but that is about what they do with their excess cash. The first thing they do is: make sure that they get richer.
The point of (warning, PDF) the opinion in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett — roll that name over your tongue a few times — is this: no person who actually wants to govern is going to run as — or be — a progressive. If you’re in a deep blue district, you can have your seat in Congress as a forum for ineffectual protest. If not — and if your election matters — then you will be outspent.
Citizens United was one step towards that end: setting fire to the theater, let’s say. Arizona Free Club Freedom Club Club (we really need a good abbreviation, and all I can come up with is obscenities) is about blocking the exits. There has always been one theoretical way to get around the problem of the wealthy gaming campaign finance laws to let them control the operating system of politics: public financing. As of today — no more.
As Chief Justice Roberts piously notes, this decision does not eliminate public financing overall. It merely eliminates the ability to do it effectively. Roberts — and oh yes, he assigned this one to himself, as rootkit malware is his most fervent love — writes:
“We do not today call into question the wisdom of public financing as a means of funding political candidacy…. ‘Leveling the playing field’ can sound like a good thing. But in a democracy, campaigning for office is not a game.”
No, it’s not a “game” — it’s more like a blood sport. As the Times story notes:
<blockquote>States and municipalities are now blocked from using a method of public financing that is simultaneously likely to attract candidates fearful that they will be vastly outspent and sensitive to the avoidance of needless government expense.</blockquote>
And that, right there, is the intent. Block all hope. Force people to be on the side of Capital if they want to win. Then have them vote in whatever they want, legal principles be damned.
You can still give block grants to candidates under this ruling — ones that can be overwhelmed by the opposition — and the only reason that this is still allowable is that everyone knows that it will not work. Resistance is acceptable so long as it is futile. Ineffectual resistance, like the paltry amount of free money for candidates that a state can convince its citizens to part with, remains welcome.
What do we do now? Well, it won’t be easy, but there’s one exit they haven’t totally blocked.
<blockquote>Rootkit detection is difficult because a rootkit may be able to subvert the software that is intended to find it. Detection methods include using an alternate, trusted operating system; behavioral-based methods; signature scanning; difference scanning; and memory dump analysis. Removal can be complicated or practically impossible, especially in cases where the rootkit resides in the kernel; reinstallation of the operating system may be the only alternative.</blockquote>
Keep electing Democratic Presidents — I’m sorry, my Republican friends, but these decisions have come from 5 Republican appointees edging out 4 Democratic appointees, and the President makes the appointments — and eventually replace one of the Court’s Monied Majority with someone who will vote to overturn this obscenity, this atrocity. Stare decisis won’t apply here, or to any decision stemming from it; you don’t just placidly decide to accept a rootkit virus. You get rid of it.
Let the word go forth: the Supreme Court today uploaded rootkit malware into our constitutional order. They want to control the operating system. “Reinstallation of the operating system,” by a future Court majority that doesn’t want the electoral game to be fixed, “may be the only alternative.”
We will uninstall this malware. We have to.
(For more on the 2011 decision, this post is comprehensive and devastating, with wonderful excerpts from the dissents and expert commentary. Do not miss it. For more on today’s decision, you might want to start here in Slate or here in the New York Times, with the Times also containing a good editorial laying out the stakes. This is a huge story — as a citizen, you should understand it.)
Well, Greg, if we limited actual speech and press the same way contributions are limited, I doubt you’d be making the same argument.
I’ll kick it off– what’s the real difference between cutting a check and writing a blog post? I’ll suggest its very little . . . but hopefully we get some interesting discussion.
I dunno, how about the gaping degree of influence between a blog post and money? Just a thought.
I mean, when’s the last time a blog post swayed an election or ballot initiative?
True, but when did an individual’s contribution of $1000 ever decide an election?
So, a contribution by an individual is the only kind that can be made?
And, eliminating the number of contributions an individual can make has no influence on how much an individual contributes?
Ryan, I would like to introduce you to The City of Los Alamitos. In 2000 it cost about $1000 tops to be on City Council.
Here are some links
http://letsfixlosal.com/blog/the-20500-tip-of-the-briggemanpoestephens-iceberg/
http://losalnews.com/have-you-no-decency-mr-briggeman-mr-sylvia-mrs-poe-mr-stephens/
http://letsfixlosal.com/blog/memo-to-cpla-could-you-please-be-more-forthright/
http://letsfixlosal.com/blog/gotcha/
See one very wealthy businessman with an interest in maintaining control of the Los Alamitos City Council spend THOUSANDS of dollars through a PAC that he funneled money to from multiple sources to influence the election with glossy campaign mailers that printed falsehoods, lies and misinformation about the candidates that he wanted off the City Council.
Free Speech? No, paid speech. He paid to have someone publish lies and enough people believed the lies that he was able to gain control of the City Council majority.
It should come as no surprise that the majority then gave his employer a contract that overcharged the citizens of Los Alamitos by millions of dollars.
Well, guess what contract is up for renewal under the next city council? Yep, you guessed right. We don’t even know who will be running yet, but we know who they want to get rid of. To see their latest handiwork:
http://losalnews.com/a-preponderance-of-evidence/
http://losalnews.com/lowlifes-in-los-al/
http://losalnews.com/losalfacts-because-there-are-los-al-liars/
So, the issue isn’t some far away “what if”, it is something that we in the second smallest city in Orange County have been dealing with for a number of election cycles now. Good, honest, hard working people that care about the community, shut down and outspent so that their voices fall silent to the interests of a corporation that overcharges the people for a service.
The best money corporations can spend is to buy the government that they want. To compete in the election four years ago the “good people” who were lied about did something that didn’t happen in the election six years ago. The formed a slate and ran as a slate because the ONLY way to offset the massive influx of spending against each of them was to pool their resources. No single member of the slate could have funded a response alone.
Expecting the same thing this election, rather than waiting, there are already those that are working to ensure that there is a “slate” to oppose the massive spending and hit pieces that will be generated against them.
Welcome to the un-level playing field, where the only thing that counts is how much you are willing to spend to kill your opponents and elect the puppets you want.
Does a blog post break in to every channel of everything you are watching, reading or listening to, every 15 minutes? Since Cal Worthington went to that big car lot in the sky, I think you could find that gap filled with PAC messages fueled by now-limitless contributions, before you will see blog posts there, which I think you will always have to seek out. There are no laws limiting the content on your neighbor’s stereo, just the volume. Now, in politics, the effective ‘volume’ can legally be infinite.
That would depend in part on how you monetize the blog post.
I am confident that we could draw lines allowing for free speech without allowing the wealthy to buy elections. We walk on narrower beams than that all the time.
Where’s your sense of urgency, by the way? Dormant? This is how kleptocracies thrive. You hate that, with urgency, in other contexts — why not this one?
I struggle with finding the right balance.
Read this piece by UCI Law’s Rick Hasen. It’s smarter than most anything else you’ll see on the subject today.
Since the Democratic party has become the party of big money, big media and big spoke holes, I think it’s going to be interesting to see how it all works out in the end.
I have to laugh at your characterizations sometimes Greg, trying to play one party off on the other as if there was any real difference in the two. One’s just a faster boat to hell than the other, that’s the only real difference between the two these days.
Oh yes, there are some minor issues they disagree on, but they both agree on taking way too much power and money from the general public so they can use it to their collective and individual advantage.
There are major diferences, so please drop this old canard. Note that the Republicans vote in lockstep in fighting legislation that would at least make political monetary donations more transparent, so at least we can see who’s buying the candidates.
Let’s not forget whose party is fine with environmental destruction, who wishes to impose religious dogma when it comes to reproductive and other privacy rights, and who bitches and moans when it comes to the uber wealthy paying some sort of fair share to keep the country going.
No difference, sure.
And, also, which party on a state by state basis seeks to suppress voting rights? Hint–it begins with an “R.” Why is that, sir?
In old Russia it took an outright ban to eliminate the political machines strangle hold on its system.
Should to States people ban those two parties and set our people free?
“Good for transparency”? In the purest, context-less, value-free sense (that would also ignore Citizens United) so are bullet holes, in sufficient quantity.
*Glad this battle is finally over. The FEC never really enforced those limits anyway. On top of that the “Independent Expenditures” that have been so ubiquitous since the late 80’s and early 90’s have made a mokery of the entire system. At least now, those old retired people can give their money away before the ingrate kids try to get it. We should start up a fund right now for Ted Cruz and Rand Paul…….We want these guys to really profit by having all the old folks give away their entire fortunes upon their death….in a perpetual political trust. Then those guys can get homes, cars, airplanes, yachts and household pets too. Now we are talking real money! Hedge Managers come on down. How about just donating GM or Goldman-Sachs Stock! Guess we can do that too…all in the name of “Freedom of Speech”. Now all we have to do is raise the cost of running for office – say $50 grand to file papers for City Council? That will certainly rid the society of unsuitable candidates…eh?
*Glad this battle is finally over. The FEC never really enforced those limits anyway. On top of that the “Independent Expenditures” that have been so ubiquitous since the late 80’s and early 90’s have made a mockery of the entire system. At least now, those old retired people can give their money away before the ingrate kids try to get it. We should start up a fund right now for Ted Cruz and Rand Paul…….We want these guys to really profit by having all the old folks give away their entire fortunes upon their death….in a perpetual political trust. Then those guys can get homes, cars, airplanes, yachts and household pets too. Now we are talking real money! Hedge Managers come on down. How about just donating GM or Goldman-Sachs Stock! Guess we can do that too…all in the name of “Freedom of Speech”. Now all we have to do is raise the cost of running for office – say $50 grand to file papers for City Council? That will certainly rid the society of unsuitable candidates…eh? Greg really needs to do a story on this about how many stupid things could and will happen in the years to come. How many people are on the Supreme Court. ONE? The other 8 are nodding doggies in the window!
Thank you, reddit users, commenters, and redditors for the attention on your site today:
http://www.reddit.com/r/politics/comments/22x4a6/the_top_priority_of_the_roberts_court_has_been_to/