Best Elections Money Can Buy

By Mark Gutis

On January 21, 2010, the world as we have known it ended. In one fell swoop of activist judging at its worst, five corporate shills (well, maybe four, I’m willing to give Associate Justice Anthony Kennedy a pass on that epithet) overturned more than one hundred years of campaign financing laws and stare decisis in deciding Citizens United v. FEC (130 S.Ct. 876 (2010)). (Let me digress a moment and explain stare decisis. One of the first things you learn in civil procedure in law school is this term. Essentially, it means respect for precedent, that is to say, unless there is a compelling reason for overturning what a court has done before, you follow that precedent. In their confirmation hearings, both Chief Justice John Roberts and Associate Justice Samuel Alito (he of the infamously inappropriate behavior at the last State of the Union Address) testified that they had the greatest respect for stare decisis. Apparently that was then, this is now.)

What Citizens United says, essentially, is that for the purpose of expenditure of cash in attempting to influence elections, corporations are equivalent to human beings and entitled to the same right of free speech. (Yes, yes, the decision also includes labor unions in the same category. But how many labor unions have the billions of dollars in ready capital that multi-national corporations have? Welcome to the world of false equivalency.) In addition to this gem of legal reasoning, the Court has also made it possible for donors to independent advocacy groups to donate as much as they want anonymously.

And if there was any question as to the Court’s (well at least the four corporate shills plus one) intent to wreak havoc on election financing laws, all one need do is look at the procedural history of this case. The only question presented to the Court was whether Citizen’s United had the right to air a film critical of Hillary Clinton within ninety days of the election. That was the question before the Court. Rather than answer the narrow question (also a bit of Supreme Court doctrine and precedent that got trashed), the shills asked for re-argument on whether corporate spending was free speech within the meaning of the Constitution.

In the months between the decision and the real start of the 2010 Midterm campaigning season, there has been much written about the effect of Citizens United on the electoral process. The arguments have been, predictably, divided on ideological lines. The right (as well as several well-respected Constitutional scholars such as Prof. John Turley of George Washington University, familiar to devotees of Countdown with Keith Olbermann and The Rachel Maddow Show) has trumpeted this as a great victory for free speech. The left, on the other hand, has viewed it as the threat to American democracy, as we have known it that it is.

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As pernicious as this decision might have been in the abstract, it is made even more so when the American media composition is considered. The majority of radio stations are owned by five major players all of whom have vested interests in making large profits. Right-wing radio, in terms of hours of air time, has an edge of about nine to one over left wing radio. For me to listen to left-wing radio in central Connecticut, I need to listen either on my car satellite radio or via the internet. Much as I like Bill Clinton, his support of the de-regulation of broadcast media (Telecommunications Act of 1996) has led to the collapse of competition with multiple stations in the same market being owned by one owner and broadcasting the same content. As people have become more and more dependent on broadcast media to get their “news,” there has been a concomitant decline in real analysis and a rise in punditry and “entertainment.” Few things are more inimical to a free and open democracy than a decline in the media’s role as watchdogs and questioners of the government and the status quo.

With the unprecedented amounts of money that poured into the coffers from undisclosed corporate and financial sources, the broadcast media outlets reaped a goldmine of ads, much of which were negative, false and directed at Democratic candidates. Thrown into this witches brew is the traditional problem of the party in power retaining seats in a mid-term election, the lousy economy (which was blamed on the Democrats), the throw-the-bums out attitude of many Americans and the hysteria of tea party candidates and it combined into a perfect storm. But for the Republicans nominating some thoroughly unfit candidates via primaries, the Senate would have also swung to the Republicans.

Did money in and of itself determine the outcomes of elections? Not in every case. The personal fortunes of Linda McMahon (Republican candidate for Senate in Connecticut), Carly Fiorina and Meg Whitman (Republican candidates for Senate and Governor in California) did not carry the day. As a Connecticut resident, I can attest to the fact that McMahon’s run, although ending in a sound defeat, was closer than it would have been otherwise. Fiorina was running against a very popular incumbent (Barbara Boxer) and Whitman did everything but literally shoot herself in the foot publicly. (And Connecticut and California are two states with long histories as Democratic strongholds.) The candidates were also forced to tag their ads with their approval, thereby disclosing that they were personally approving of the lies and distortions. In Nevada, Sharron Angle turned into such a disaster that even tons of money could not unseat a weakened Harry Reid. And while, Christine “I’m not a witch” O’Donnell lamented that with more money she could have won her election in Delaware, Chris Coons’ double-digit victory in the current environment argues strongly that it would have taken black magic for her to have pulled out a victory.

But these were the exceptions. Where Democratic candidates were in close races for Congressional seats, a tsunami of corporate “black” money was thrown at them. (By black money I mean money to Super PACs from anonymous donors.) Crossroads GPS, one of the groups founded by Karl “Turd Blossom” Rove (you, know, the guy who outed covert CIA agent Valerie Plame and got away with it) spent 75% of its money in races where Republican candidates won. They spent $4.4 million against Alex Giannoulis, the Democratic candidate for Pres. Obama’s former Senate seat in Illinois and his opponent Mark Kirk won by 2 percentage points.

What was all this money paying for? A tremendous amount went into funding broadcast media advertising which, at best, bore only a passing resemblance to the truth. As Greg Sargent wrote in The Washington Post, “the sheer scale and dimension of dishonesty and distortion coming from the conservative” groups was both astonishing and irresponsible. PolitiFact declared that ads “from ‘super PACs’ and other political groups targeting the 2010 midterm election [were] overwhelmingly spreading exaggerations and falsehoods.” TV stations in Pennsylvania, Connecticut, Colorado and Kentucky refused to run attack ads for carrying a patently false message. This is not to say, however, that these same falsehoods and distortions did not get broadcast in these states. The pervasive and pernicious influence of Fox News and the overwhelming echo chamber of right-wing talk radio succeeded in penetrating every market.

Republican candidates tended to benefit from the corporate largesse of black money. Pro-Republican groups that did not reveal their sources outspent pro-Democratic groups by a 6 to 1 margin. The non-partisan Center for Responsive Politics reported that of the top ten groups that did not disclose their funding sources, eight were conservative pro-GOP organizations. These groups not only contributed buckets of cash but they coordinated with each other and the National Republican Congressional Committee to ensure that vulnerable Democrats were most heavily targeted.

The disingenuousness of The U.S. Chamber of Commerce would be amusing were it not so dangerous to the fabric of American politics. They collected money from all over the world and refused to reveal who and where the money came from. They then disbursed it in the form of attack ads and contributions to other groups. They claimed that no foreign cash was used to finance any of these efforts. Interestingly, though, it all went into one bank account from which these expenditures were made. Even if “theoretically” no foreign money is used, it frees up an equal portion of cash from the same general operating fund to fund these ads and groups. At best, this is an example of “thank you for peeing on my head and telling me it’s raining.”

The incestuous relationship between the right-wing corporate media and these same purveyors of black money is best illustrated by News Corp and the Chamber of Secrets (oops, sorry, that was a Harry Potter movie, I really meant the Chamber of Commerce). Rupert Murdoch, CEO of News Corp, the parent of Fox News (alternately Faux News, Fixed Noise) donated $1 million of corporate money to the Chamber. The Chamber then turned around and spent about $1 million on ads on Fox News attacking Democrats. Now, my wife will tell you that when it comes to financial issues, I am a babe in the woods. (Numbers make my eyes cross and I have yet to meet an algebra word problem I can actually understand.) But it seems to me that this transaction has the aroma about it of money-laundering and somehow I just have the feeling that it worked well for News Corp’s bottom line and tax deductions. (Murdoch, when challenged by stockholders at a meeting said he made the contribution plus a prior $ 1 million to the Republican Governors Association because it was in the best interests of the corporation. No doubt….)

One argument made by Associate Justice Kennedy, writing for the majority in Citizens United is that placing any restraints on campaign spending left the “electorate…deprived of information, knowledge and opinion vital to its function.” In response, Associate Justice John Paul Stevens writing for the dissent stated, “While American democracy is imperfect, few outside the majority of the court would have thought its flaws included a dearth of corporate money in politics.” If the 2010 mid-term elections are any indication, Justice Stevens seems to have gotten it right. The American public would have been better served NOT being subjected to the “information” their corporate “benefactors” blared at them.

Where does this leave us? With the composition of the Supreme Court unlikely to change in the near future, the only way around Citizens United would be a Constitutional amendment to make the sort of unrestricted money seen in the last election illegal. Short of that, anything that Congress enacts (and with a Republican majority in the House and a slim Democratic majority in the Senate such action is unlikely) would still have to pass constitutional review by the same corporate shills on the Supreme Court.

The long-term effect of this flood of corporate largesse threatens to turn the shining beacon of democracy into an oligarchic banana republic. (In his book Free Lunch: How the Wealthiest Americans Enrich Themselves at Government Expense and Stick You With The Bill, David Cay Johnston writing in 2007 found that the U.S. economic structure most resembled Mexico, Brazil and Russia. It has only gotten worse since then.) Robert M. Duncan, chairman of American Crossroads told the New York Times, “it’s a bigger prize in 2012, and that’s changing the White House. We’ve planted the flag for permanence, and we believe we will play a major role for 2012.” 2010 may be considered the proving ground for the 2012 Presidential Election much as the Spanish Civil War was the proving ground for World War II. And with the coffers wide open, we can expect a permanent campaign in the media to convince voters to call their members of Congress to vote in ways that will benefit those interests to the detriment of their own. In the same article, Duncan stated that American Crossroads and Crossroads GPS would continue anti-Democratic advertising.

Thanks in no small part to the flood of corporate black money, such progressive voices as Russ Feingold of Wisconsin and Alan Grayson of Florida have been removed from Congress. What is left in the House is a combination of corporate-friendly Republicans and anti-government tea partiers who can agree on one thing: government regulation is bad. In the Senate, the Democrats hold a slim majority but part of that majority depends on self-interested me-monkeys like Joseph Lieberman of Connecticut (lucky me, my senior senator) and DINOs like Joe Manchin of West Virginia and Ben Nelson of Nebraska.

Not as well-reported or noticed is a shift to the Republican side of governors and state legislatures. With 2010 being a census year, re-districting is now in the hands of state politicians who also benefited from corporate largesse. The long-term effects of such changes cannot bode well for the Democratic Party, national and local.

Mitch McConnell gave away the game when he said his number one priority was making Barack Obama a one-term president. But we already had Jim DeMint of South Carolina talking about Obama’s Waterloo and the real head of the Republican Party, Rush Limbaugh hoping the president will fail. Whatever chance there was for progressive legislation is now dependent on what the lame-dog session of Congress can accomplish. Much of the Democratic Party appears shell-shocked and is running scared. They are faced with two bleak choices: they can attempt to adapt to the new paradigm and compete toe-to-toe in pulling in the unprecedented millions that are now needed to compete or they can continue to try and represent the majority of Americans who did not have the good fortune to win the genetic lottery of being born into the right families. The former points to increasing corporatization of the Democratic Party. The latter points to continuing marginalization of progressive issues. Karl Rove’s wet dream of a permanent Republican majority is a frightening possibility unless the American people, the real American people who worry about putting food on the table and having a job realize the con job that has been pulled on them by the richest and most powerful interests in the country and begin voting with their heads rather than their too easily-swayed emotions.

For a detailed examination of the corporate money in the 2010 election, check out Citizens Blindsided: Secret Corporate Money in the 2010 Elections and America’s New Shadow Democracy (http://www.pfaw.org/sites/default/files/citizens-blindsided-11-29-10.pdf)