Opinion

The Great Debate

The Supreme Court ‘s Gilded Age redux

By Richard White
August 14, 2013

The Supreme Court belongs to the small club whose members seem to assume that saying something makes it so. It deals in precedents — not the same thing as dealing in history. It prefers obiter dicta to the messiness of the past.

In his Citizens United opinion, Justice Anthony Kennedy wrote, “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Really? The equation of money with speech has gotten a lot of well-deserved attention, but the inelegant “not coordinated with a candidate” seemed attached only to define “independent.” Does the phrase mean that if expenditure was coordinated with a candidate it was not political speech and thus not protected?  We are about to find out.

The Supreme Court this term will hear McCutcheon v. Federal Election Commission, a case that challenges the overall limit — $123,000 — that one person can give directly to a candidate or a party over a two-year election cycle. The challengers’ argument is that, as long as the $2,600 cap on donations to a single candidate’s campaign is in place, there is no constitutional rationale for limiting the total amount.

This argument builds on another obiter dictum from the court. In Citizens United, Kennedy doesn’t say “the financial quid pro quo: dollars for political favors,” is the only form of corruption; he says, rather, it is the only form that is the government’s legitimate concern. With the $2,600 limit for donations to a single candidate still in place, there is supposedly no greater risk of corruption simply because one donor can now contribute to many more candidates.

How does Kennedy know the government’s only legitimate concern is with quid pro quo corruption? It is apparently a matter of faith and doctrine. It is certainly not a matter of history. The government has long been concerned not so much with the corruption of officeholders — the corrupt will always be with us — but with the corruption of the office and the political process.

What political money buys is influence, but Citizens United has already prepared the ground for dismissing influence because “Favoritism and influence are not . . . avoidable in representative politics.”

But this is not the point. The point is corporate and individual money can buy so much influence over certain matters that no one else’s influence matters. Representative government means representing a lot of people and not just a few.

Today, there seems an acceptable belief that corporations and the rich have grown in probity and rectitude since the Gilded Age.  But let’s assume that today’s rich, given the weakening and even removal of limits on contributions to political candidates on the grounds that all money is political speech, will revert to the moral level of the Gilded Age rich.

A little tour is in order here. Consider first, Senator John Mitchell of Oregon, elected to the Senate in 1873. He described his relationship to Ben Holladay, the railroad magnate, with “Ben Holladay’s politics are my politics and what Ben Holladay wants I want.”

This was not quid pro quo. What Holladay had acquired was not individual votes, but rather friendship and devotion.

When Joseph N. Dolph was elected senator from Oregon in 1882, Henry Villard, president of the Northern Pacific Railway, was more discrete. He assured Dolph, that his “interests will be properly taken care of.” Villard also promised “I shall take good care that your identification with our interests shall not embarrass you in the least as senator.”

In the eyes of those involved, this was not bribery — quid pro quo — it was friendship and reciprocity. It was, as E.J. Ellis, a Democratic congressman from Louisiana, told Collis P. Huntington, who built the Central Pacific and Southern Pacific Railroads, a matter of honor since “a transaction occurred which bound me to you personally and identified me with your personal fortunes [by] such ties as cannot be broken or disregarded.”

Having “friends” like Ellis in office protected Huntington from the taint of  corruption. He regarded the men who became his friends — like Senators Roscoe Conkling of New York or William Stewart of Nevada — as thoroughly honest. Huntington considered Conkling the greatest man in the Senate. Oliver Ames, president of the Union Pacific thought this senator “ready at all times to work for whatever” the railroad wanted.

Huntington gave Conkling investment information, aiding him financially, because “like the rest of us he had to eat and drink.” Without honest men like Conkling and Stewart in Congress, Huntington once said, the corrupt would rise to power, which would leave bribery as “the last and only means left to honest men.”

Huntington and Villard did not want to own Conkling, Stewart, Ellis and Dolph. They just wanted a time-share.

Huntington needed these friends at specific places and times. What he wanted to control was the process of getting or stopping bills through Congress — he wanted access and control over certain committees. He sought political leverage so that things that threatened him went off the tracks.

In the words of the 1887 Pacific Railway Commission, which Congress delegated to investigate the original transcontinental railroads, Huntington spent a lot of money “for the purpose of influencing legislation and of preventing passage of measures doomed to be hostile to the interests of the company and for the purpose of influencing elections.”

Relatively little of this was quid pro quo — it was all about friendship. It was about controlling the process of elections and congressional business.

But let’s say the Supreme Court gets rid of the overall limit on contributions, but retains the $2,600 individual limit. How much harm can that do?

Well, the average cost of a campaign for seat in the House of Representatives during the 2012 election was about $1.5 million and the number of members in the House is 435. With gerrymandering, there is hardly anything resembling an election in many of these seats, so let’s say that 200 are competitive.

It would take about 115,000 individual donors at $2,600 a piece for a party to get the necessary $300,000,000 to finance its share of these campaigns. But if there were no limit on how many campaigns to which a single donor could contribute, then each donor could contribute $520,000 by giving the individual maximum of $2,600 to each of the 200 campaigns. Now things get manageable. You need only about 576 people with deep pockets to pick up the entire tab for one party.

In the world of Kennedy, this probably seems fair. “The appearance of influence or access, furthermore,” Kennedy wrote in the Citizens United decision, “will not cause the electorate to lose faith in our democracy.”

Let’s leave the plutocrats behind for a moment and go the Populist Platform of 1892. We don’t have to read further than the opening line of the preamble. “The conditions which surround us best justify our cooperation; we meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress and touches even the ermine of the bench.

Now that is a ringing endorsement of Kennedy’s history.

 

PHOTO (Top): Friends in Deed: Plutocrat Collis P. Huntington (R) called his friend, the powerful Senator Roscoe Conkling (L), the greatest man in the Senate.  Huntington CREDIT: Courtesy of Library of Congress

PHOTO (Insert A): Justice Anthony M. Kennedy at the Supreme Court in Washington, Oct. 8, 2010. REUTERS/Larry Downing

PHOTO (Insert B): Henry Villard  CREDIT: Wikipedia Commons

PHOTO (Insert C): News microphones wait to capture reactions from Supreme Court rulings outside the court building in Washington, June 25, 2013. REUTERS/Jonathan Ernst

Comments
15 comments so far | RSS Comments RSS

“The appearance of influence or access, furthermore,” Kennedy wrote in the Citizens United decision, “will not cause the electorate to lose faith in our democracy.”

Actually, they did lose faith, but even before this statement. Many people don’t vote and many who do vote only do so to keep the worst out. The statement by Kennedy just simply confirms the lack of justice in this country and that the wealthy are and always have been in control. It’s not surpirising that the blatancy increases now as Kennedy and his like have at best an observers interaction with common people. Having never done anything real and always having been separated from common folk he doesn’t even know what it means and has only the manipulators view.

Posted by brotherkenny4 | Report as abusive
 

“The appearance of influence or access, furthermore,” Kennedy wrote in the Citizens United decision, “will not cause the electorate to lose faith in our democracy.”

Actually, they did lose faith, but even before this statement. Many people don’t vote and many who do vote only do so to keep the worst out. The statement by Kennedy just simply confirms the lack of justice in this country and that the wealthy are and always have been in control. It’s not surpirising that the blatancy increases now as Kennedy and his like have at best an observers interaction with common people. Having never done anything real and always having been separated from common folk he doesn’t even know what it means and has only the manipulators view. He is too ignorant of reality to know that he sounds like a douche bag.

Posted by brotherkenny4 | Report as abusive
 

Just explain for me why a group of people organized for the economic purpose of creating value for stakeholders (a union) has always been able to contribute an unlimited amount to any political cause but a group of people organized for the economic purpose of creating value for stakeholders (a corporation) has not.

Posted by relaxin | Report as abusive
 

the finest Supreme Court money can buy.

Posted by rikfre | Report as abusive
 

Great op-ed. The most relevant passage: “The point is corporate and individual money can buy so much influence over certain matters that no one else’s influence matters. Representative government means representing a lot of people and not just a few.” Whereas it might be true that “Favoritism and influence are not . . . avoidable in representative politics,” because our election outcomes are determined by the amount of money spent (94% of the candidates outspending their opponent wins their elections) we’ve reached a place where money is all that matters (with just a few exceptions) and therefore we no longer practice democracy.

The Supreme Court’s Citizens United decision, as expressed by Kennedy, is too conveniently narrow, focusing solely on the fallacy that only verifiable quid pro quo is the form of corruption our government should concern itself with. I find this deeply disturbing and suggests to me that Kennedy isn’t a very intelligent man (that I don’t believe) or he’s conveniently narrowing his focus so that corporations and the extremely wealthy can continue to control our government, making a mockery of our Republic and its ostensible democratic principles. In plain English, it dooms our democracy, squelching the American people’s ability to self-govern.

Kennedy isn’t looking at the broader picture, and he needs to be. These are politically sophisticated times and the average American is not aware of exactly how our government works. Those who have decided to use their wealthy to control our government are well aware of this and depend on it to continue their control of our nation to continue advancing their own interests, and I’d argue that those interests are increasingly at odds with the best interests of the American people, like with our energy policy (there is no global warming); taxation (the less we tax the rich, the better for the overall economy); gun regulations (the fewer the regulations and the more guns owned by citizens, the safer we’ll be); our healthcare (we have the best healthcare system in the world and anything else would amount to evil socialism); our banking and investment industries (fewer regulations will allow for greater economic stimulation which will produce more jobs); to name just a few. It’s always, always, always about maximizing an industry’s profits and almost never about what is best for the American people, or even what the American people want.

We need serious campaign finance reform, but until we have the Supreme Court Justices who are not shilling for the plutocrats who have taken control of our nation, then the American people can’t even affect the changes necessary to bring about a return to representative democracy. They’ve got it sewn up. And since we can’t get campaign finance reform past the Supreme Court (if we could even get it done in Congress, which is doubtful), the only two options left to us are a constitutional amendment (which is, I think it safe to say, impossible) or we take to the streets and revolt.

Posted by flashrooster | Report as abusive
 

It should not be a surprise that Justice Kennedy has such a lax view on what constitutes influencing the political process. His own father was a judge in Sacramento who often had personal dealings with various moneyed parties, and young Anthony learned at his daddy’s feet.

Posted by borisjimbo | Report as abusive
 

Term Limits for Congress and SCOTUS! Campaign finance reform! We must call for a public referendum. Nothing else will change anything.

Posted by tmc | Report as abusive
 

I do not agree with flashrooster in his desire for greater gun regulation (i.e. less freedom) and the stupidity the federal government brings to health care thus far can only be described as frightening. Nonetheless, I must agree with the rest his basic reasoning in this wide ranging comment.

The influence of elected representatives of “We, the people” is today bought and sold before each election. Over the last hundred years America’s presiding Justices have remove every meaningful accountability of the American judiciary whether local, state or federal level.

No longer are judges accountable to “We, the people” that their actions and inactions be consistent with their Oaths of Office long required by statute. All they need do is have “jurisdiction”. They no longer need exercise same with competence, wisdom or even in good faith. And no one has raised a whimper.

Posted by OneOfTheSheep | Report as abusive
 

It’s time to fund elections with public money equally assessed to each citizen, with absolutely no avenue for escape from such!

Posted by donee | Report as abusive
 

While scary, the spectre of a return to the bought and paid for politics of the Gilded Age is not nearly as scary as the current situation. Television is a more effective brain washing tool than anything available to the wealthy of the gilded age. Computers and modern statistical tools have made gerrymandering easier and far more effective than ever before – just witness the present House of Representatives and state legislatures. Big dollars in primaries allow for candidates that are far more extreme and detrimental to the nation than the smoke filled back rooms ever produced.

Posted by QuietThinker | Report as abusive
 

QuietThinker: Sounds like what you’re saying is that the same dynamic exists, where the wealthy are using their wealth and influence to control our government, as existed during the Gilded Age, only much worse due to the more sophisticated means they have of manipulating our thinking. Couldn’t agree more. They’ve gotten mass manipulation down to a science, literally.

We HAVE to take back control of our government but it will be a very difficult task because we can expect those behind this, the wealthy plutocrats, to make full use of everything at their disposal (which is everything) in ways that will best protect their wealth and power. If that means turning us against each other, they will do it. Rest assured they will use their ownership of a majority of the media to full advantage. The only thing we have an advantage in is numbers, which is why they are so careful to keep us divided and fighting amongst ourselves.

Posted by flashrooster | Report as abusive
 

Indeed the plutocrates have made a science of manipuilating the people. the only way to change it, and anything for that matter, is to call for a public referendum vote on term limits for Congress and SCOTUS, and campaign finance reform. Once that has been accomplished, amendments tot he constitution can made to ensure the “fix” is permanent. Please read “The Liberty Amendments”. Currently the best seller on Amazon.com

Posted by tmc | Report as abusive
 

tmc: If I was one of these plutocrats, say an oil tycoon, and we implemented term limits, I’d merely go to the leaders of the major parties and say, “Look, these are the policies I want to see happen and want protected. I’ll donate this much to your party if you do as I say.” Then nothing changes. I think term limits would be a waste of time, and would force out the occasional good senator or congressman, like Elizabeth Warren or Bernie Sanders. I think it would be a tragedy to lose either of these senators. But I wholeheartedly concur about our need for serious campaign finance reform. The very soul of this Republic depends on it. We’re not much better off today than we were before our Founding Fathers fought the Revolutionary War.

Posted by flashrooster | Report as abusive
 

@flashrooster, that’s exactly why I say Campaign finance reform must be the second part of the initial public referendum. I have always included it, never once leaving it out. I have made this comment many, many times on many topics as it is the root problem of virtually all of them. I can’t see how you could have missed it. I would love to elaborate on the specifics of both parts, but this is not the forum for it. Read the book “The Liberty Amendments”.

Posted by tmc | Report as abusive
 

There are many Elizabeth Warrens and Bernie Sanders out there. Plenty to keep a continuous stream of them entering congress and SCOTUS. Parties must not be allowed to hold power anymore. Term limits must be implemented or power bases can be established, jerry mandering can continue, and finance reform repealed or gutted. Also, generations change. ALSO, We now have five generation in the work force at once, not just two or maybe three. We don’t need any more 90 year old congressmen that only make a show of supporting laws they never wanted.

Posted by tmc | Report as abusive
 

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