This episode may be emblematic of the inherent conflict of interest faced by any politician successful in the current corrupt system who purports to oppose money in politics. It also shows the futility of relying on politicians to fix the problem of their own systemic corrupt campaign practices.
5. The 2013 Agenda
These six cases left very few further obstacles to plutocratic investment in all levels of government. The only remaining limits on domestic money in politics now concern direct contributions to politicians and parties. In McCutcheon an individual contributor and unincorporated association, and in Danielczyk an indicted corporate contributor, challenged the constitutionality of these limits.
There is a temptation, not resisted by even the better of the analyses of the McCutcheon case, to say that in deciding McCutcheon the Court "could open the door to even more money in politics than it did in the disastrous ... Citizens United v FEC." But such hyperbole is overstated. To any close observer, the door was already opening wide even before Citizens United. For example, one anti-democracy scholar approvingly wrote, based on the above little-noted Roberts 5 decisions made prior to Citizens United: "the game of reform ... is over." Richard Esenberg, The Lonely Death of Public Campaign Financing, 33 Harvard Journal of Law & Public Policy 283, 289 (2010). A pro-democracy student law review article similarly demonstrated that "the Court's intention to liberalize expenditure laws should have been abundantly clear by 2008." Note, Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance, 124 Harv. L. Rev. 1528, 1539 (2011).
We should not exaggerate what is at stake for most voters in the 2013 edition of the Roberts 5 annual "whack an election integrity law" series. McCutcheon will almost certainly prove to be the Court's seventh case in as many years striking down such a law, while sustaining only one that enforced the prohibition on foreign contributors. Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) sum. aff'd __US__ (Jan 9, 2012). This latter doctrinally inconsistent case defended the Court from the narrow political attack President Obama had made in 2010. Therefore, as a politically-motivated decision, the Court ducks out of giving a single word of legal precedential explanation how foreign contributors may be prohibited under its Citizens United theory, adopted from First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (Powell,J.), that first held a speaker's (i.e. donor's) identity to be constitutionally irrelevant.
By overturning aggregate limits for either candidates or parties, or both, in McCutcheon the Supreme Court will provide a small number of domestic "super-affluent" political investors an additional tool to more efficiently assert influence over public policy than they already enjoy by using Super Pacs, 527's, media oligopolies, and other already lawful tools of political influence that they now share with the merely affluent plutocrats. This will reduce from the fewer than .02% of citizens who now give more than $10,000 per election to maybe about 400 the number of plutocrat s necessary to buy the federal government directly, rather than merely indirectly by financing "issue" ads and purportedly "independent" electioneering, according to the very loose definitions of those legal boundaries that are rarely enforced in any event.
Overturning the FECA limits on total aggregate contributions to candidates, parties and their committees as requested in McCutcheon would increase from $123,000 to over $3.6 million the amount a single plutocrat may currently contribute in the biennial federal election cycle. Funding Super Pacs is not as direct, and in 2012 was not as effective. This was partly because candidates get better rates for broadcast ads, and partly because Republican profligacy induced by their indigestible surfeit of resources saw, for one example, Romney's top consultants paid an exorbitant $134 million while Obama's received $6 million. Meanwhile some predator PACs cashed in .
Though the high-flying new Super Pacs gave the efficacy of independent expenditures a bad rap in 2012, it has often been observed that, when at least 75-85% of political money goes to the broadcast media, it hardly matters who writes the check. The Federal Election Commission (FEC) has adduced extensive evidence about the highly effective corrupting influence of independent expenditures. In the case of negative advertising, which is the bulk of independent spending, it can be even more effective to leave the candidate's fingerprints off those ads which at the same time both dissuade and offend. Meanwhile the "optics" of cutting out middleman Super Pacs and abandoning 527 anonymity may heighten the embarrassment factor for some, though also the ego factor for others. So the additional importance to plutocrats of having the flexibility to contribute directly to candidates and parties should not be exaggerated.
Harvard Prof. Noah Feldman, writing for Bloomberg, gave the effect of McCutcheon a positive spin by claiming it would give mega-millionaires the chance to compete with the billionaires who now fund Super Pacs. Actually the reverse is more true. Billionaires who do not want to go through the likes of Karl Rove to broker an election, or simply wish to hedge their bets through a direct purchase of a candidate, or actually a governing party, along with their "independent" Super PAC spending, will be able, after the likely McCutcheon decision, to more cost-effectively buy a majority of Congress directly on issues that concern their own financial interests, just as plutocrats did in the first Gilded Age, when they commonly bought elections for candidates who had served as their own corporate lawyers .
In some future history about the end of the republic and rise of the neo-feudal and imperial aristocracy that is now replacing it, the McCutcheon decision will help mark the transition point when, as in feudal times, the royalty would gain supremacy over the lesser nobility. This is when the Dukes marginalize the Barons. It cannot be said how this actually affects the rest of us plebs, who have been for some time mere spectators at the funeral of democracy. By 2008, at the very latest, the 99% were already mostly dealt out of the money game that, beginning legally in 1976, had both caused the decline of democracy and the deterioration of that decline's most reliable indicator -- growing economic inequality. Nobel economist Joseph Stiglitz and others argue that descent into extreme inequality of income and wealth harms the economy at the same time it distorts politics. Qui bono is the best guide to who's buying policy. Since 2008 it appears that the top 1% have been taking all the income gains plus .4% of what the 99% used to earn. These inequality statistics suggest that it is no longer just the 90% but now closer to the 99% who are effectively disenfranchised. A ccording to the closest student of inequality and political influence, Princeton Prof. Martin Gilens, Affluence & Influence: Economic Inequality and Political Power in America (2012) 1 n.1, it is already true that "the preferences of the vast majority of Americans appear to have essentially no impact on which policies the government does or doesn't adopt."
The McCutcheon case, and future such cases finishing what Buckley started in 1976, by casting aside what remains of legislative authority to safeguard election integrity, will from here on merely be about distributing the spoils among mega-millionaires and billionaires, like larger and smaller plutocratic wolves jostling at the carcass of the former U.S. republic, big and bigger pigs muscling into their share at the trough of political spoils.
The average incumbent representative raises $1,732,000 for a 91.2% chance of re-election while a Senate incumbent raises $7.02 million for a 95.2% chance. So a majority (218) of incumbent representatives can be bought for under $400 million per Session, and roughly the same amount would buy the 60 incumbent Senators needed to enact legislation for six years' service, or under $200 million per biennial Term of Congress. For about the same total it costs to buy Congress you can buy about half a President. Supposing there are 100 key issues per Congress on which influence peddling of public policy can deliver the average inflated return on investment (conservatively estimated at around 20-40,000%), then the principle players in this business model would all gain by retailing these policies biennially to 170 or so individual plutocrats at $3.6 million a pop. A surcharge for parties and independent negative ads could more than double this number to reach the 420 political investors the government roughly estimated in its oral argument, as discussed below. This concentration of large political investors would avoid the current quasi-public messiness of candidates involved in raising money and making non-indictable sales of public policy to 30-70 fold that number of mostly lesser nobility, who themselves face the additional cost of coordinating their potentially conflicting demands among themselves through trade associations, their lobbyists and other reptilian forms of the Rovian school.
A good example of the efficiencies of scale phenomenon is the federal too big to fail (TBTF) implicit federal bailout guarantee subsidy that allows Wall Street to out-compete Main Street banks. The smaller banks may have proven themselves to be better bankers than the TBTF bankers. But they lack sufficient coordinated clout to play the political corruption game as effectively. So the casino capitalist TBTF's have been on the ascendant since the beginning of the era of money in politics.
Though there will always be smaller players for policies involving lower stakes and returns, and those who will bundle those interests, this requires expensive overhead for 527's, PACs and political parties, lobbyists, other beltway bandits and brokers, demand on a member's valuable shakedown time, a funded business plan to profit from corrupted policy, and media buys to sell it all to the public. The purchase could, at least metaphorically, be made with considerably fewer transaction costs by the major players convening more comfortably and discreetly in an exclusive large room. Basically, cutting out the political class of middle-persons that serve only to put lipstick on this corrupt pig of a political system can save plutocrats money.
The absence of controls on money in politics, then, inexorably shifts power to the richest due to economies of scale in political corruption. In the near future, after a very few additional adjustments in election integrity laws by the Supreme Court, all in the name of "free speech," this core faction of the 425 US billionaires might even be whittled down to a plutocratic junta of mega-billionaires like the Koch, Walton and Marrs families, who could fit around a secluded conference table. This pretty much describes the operandi of the great trusts owned by the robber barons of the first Gilded Age. But now that both Progressive and New Deal era reforms have been eradicated, there is really no factor on the horizon standing in the way of imagining, like Sheldon Adelson apparently does, a single Crassus1 ultimately financing a Caesar who would fully deploy the totalitarian powers cultivated by Obama. Such a modern Crassus could arrange to purchase government through a "single payer" system that a majority of Americans originally expected for delivering their health care, before money in politics waylaid that popular policy.
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