The Supreme Court Uploads Rootkit Malware: Context for Today’s Campaign Finance Ruling

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.

Roberts Rootkit

<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.)

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)