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


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