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Did James Madison and the rest intend that 1,500 or so men with billions of idle cash be able to buy a Congress, a president or a state legislature?
Absolutely, the five-man majority on the U. S. Supreme Court said last week.
We may get to taste the bitter fruit of that holding here in Arkansas, this year, but then we've tasted it already. The court's 5-4 ruling in McCutcheon v. Federal Election Commission only nudged us slightly farther down the path to oligarchy.
Shaun McCutcheon is an Alabama coal magnate who thought the $123,200 that federal law allowed him to dump directly into the campaigns of Republican congressional candidates this year did not buy him enough influence in Washington. The coal lobby wants a Congress that will weaken the environmental rules on mining and burning coal and halt the shift of U.S. dependence from carbon to renewable, clean energy. McCutcheon sued, joined by the Republican National Committee, and the Supreme Court obliged.
The court struck down the $123,200 limit on the aggregate amount that one person could give each election cycle to congressional and presidential candidates and to party political action committees that funnel the money on to candidates. From now on, if he likes, McCutcheon can give as much as $3.6 million per cycle to federal candidates, directly or through the political parties.
But all the lamentations, here and elsewhere, may be too hysterical. Already, a rich man could spend a billion dollars a cycle to elect people of his choice and keep at least the finer details more or less secret. Mega-donors like the Koch brothers can spend whatever they wish on attack ads on congressional and state legislative candidates through super PACs and 501(c)(4) nonprofits like Americans for Prosperity or the Club for Growth as long they don't stash it directly into the campaign committees of candidates they want elected or official party committees. The Supreme Court years ago endorsed that subterfuge by framing it as the constitutional right of people who had made or inherited vast sums of money.
You can make the argument — and its supporters did — that the McCutcheon decision had one beneficial aspect: It encourages the rich to be open about buying influence or "access" by giving money directly to the candidates, who must then report it, rather than by funneling it through 501(c)(4)s and PACs as Arkansas nursing home magnate Michael Morton did in investing in candidates for judge who will favor his interests.
Maybe, but I think most people who spend a lot of money on politics will still prefer anonymity. The Koch brothers want people to know they are investing heavily in politicians, just not the details or the extent. Americans for Prosperity and the Club for Growth and their donors may already have spent $5 million to defeat Sen. Mark Pryor. The public doesn't begrudge swell-sounding groups for prosperity and growth spending vast sums to beat a senator, but they might if you put a few names and faces behind it. The politicians prefer that anonymity, too. They can deny having anything to do with the nasty ads tearing down their opponents.
This all began with a different but also conservative Supreme Court. Public revulsion at the corruption revealed in the Watergate scandal caused Congress to toughen the rules controlling the influence of money in government. But the court gutted the reform in Buckley v. Valeo in 1976 by holding that money was speech and that Congress had to be careful in regulating it. If a person had lots of it, the law could not prevent him from spending all he needed to get himself elected.
It was sheer baloney, but once the principle of money as speech was established you could hold almost any use of it in the political arena a right. And in the hands of a severely rightward court everything becomes a right, both for the individually rich and for corporations, which the court said were just humans on paper.
Everything is legal, that is, except outright bribery. That is the standard described by the chief justice last week. As long as you cannot absolutely prove that a gift to a politician produced a certain benefit for the donor, it is the donor's right. Roberts said there was just no evidence that mammoth gifts to a politician ever had any influence on his official acts. If money had such influence then Congress could impose limits and controls, but it just doesn't happen, in the chief justice's imagination.
No one in America really believes that. Alan Simpson, the former Republican senator from Wyoming, dismissed such nonsense when he testified in an earlier case: "Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about — and quite possibly votes on — an issue?"
The same day Roberts handed down his opinion, national attention was focused on the world's 10th richest person, casino magnate Sheldon Adelson, who let it be known he would spend a fortune getting Congress to outlaw online wagering, which was cutting into casino profits. Big bucks went to Sen. Lindsey Graham (R-S.C.), who — with amazing coincidence — introduced the bill written by Adelson's lawyers. Graham gave Justice Roberts some cover. He said he did it not owing to Adelson's bribe, but to get the votes of South Carolina Baptists.
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