(Photo: Melina Mara/The Washington Post via Getty Images)
Jan 20, 2022
Today marks the twelfth anniversary of one of the most destructive rulings ever issued by the U.S. Supreme Court, Citizens United v. Federal Election Commission.
That ruling from the Court led by Chief Justice John Roberts unleashed a tsunami of "dark money" engulfing every major national and state election since then. The billionaires pumping millions into our elections are known to their political beneficiaries but not to most Americans.
One consequence is the ruinous chasm between what can pass Congress--such as huge tax cuts for billionaires like Charles Koch and Elon Musk--and what cannot. Elected officials whose fortunes are tied to the favor of such billionaires can block popular proposals with near impunity.
"The billionaires pumping millions into our elections are known to their political beneficiaries but not to most Americans."
The result is a vicious cycle of thwarting policies that could help us all thrive--things like making billionaires pay their fair share, protecting the freedom to vote, securing paid sick leave for all, and investing in innovative ideas to respond to the climate crisis--while entrenching the economic and political power of the richest few.
This destabilizes not only the health of our economy but also our ability to function as a free and democratic society.
Certainly, the Dred Scot decision and the century of its racist progeny that followed caused greater wreckage of Black lives and more, but the Citizens United ruling is deeply pernicious.
It is also a bellwether for the radically reactionary edicts that the sharply right-wing Roberts Court is poised to issue later this year. This is the first full Supreme Court term that includes all three of the unworthy judges that Donald Trump--and dark money--installed as umpires.
The group called "Citizens United" was launched in 1988 by Floyd Brown, a GOP insider responsible for the race-baiting "Willie Horton" ad, which helped George H.W. Bush win more white voters and, with them, the White House. In 1992, David Bossie joined Brown at Citizens United where they worked alongside Koch-funded groups to block Democratic proposals, such as the health care reforms proposed by Bill and Hillary Clinton. Bossie is now more widely known as a senior Trump advisor in 2016 and 2020.
Before then, Bossie worked briefly for Rep. Dan Burton (R-IN) on the investigation of the Clintons under the pretext of the Whitewater scandal before Bossie was forced out over his controversial tactics. In 2000, Bossie took the revolving door back to Citizens United, where he focused on defeating the presidential bids of John Kerry and Hillary Clinton. Under Bossie, Citizens United also opposed the 2002 Bipartisan Campaign Finance Reform Act (BCRA, known as the McCain-Feingold Act) along with the Kochs' "Citizens for a Sound Economy" (the predecessor of "Americans for Prosperity") and people like the now infamous Cleta Mitchell.
BCRA passed by a wide, bipartisan vote, but that did not stop dark money addicts like Sen. Mitch McConnell (R-KY) from trying to get the Supreme Court to strike it down. He failed, but that was before John Roberts and Sam Alito were appointed to the Court by George W. Bush. McConnell was aided in this effort by the American Civil Liberties Union, which was lauded by the Koch-funded Federalist Society and other right-wing groups for doing so.
BCRA was a multi-year effort to limit dark money spending that was eluding the donation limits and disclosure requirements of the "Federal Election Campaign Act," the Nixon era reform that had replaced the inadequate "Federal Corruption Act." BCRA's measures were rooted in the Senate investigation of dark money operations like "Triad," which was linked to Charles Koch long before he became a household name for his political spending. Dating back to 1976, Koch had funded efforts to overturn federal anti-corruption laws. His fortune helped underwrite the Libertarian Party's brief in the Buckley v. Valeo Supreme Court ruling, which planted the seed for the notion that money is speech, the poisonous root of the Citizens United decision.
BCRA redefined an "electioneering communication" as a broadcast communication that mentions a candidate in the weeks right before a primary or general election, setting limits on such activity. In response, Bossie recast his group's electoral strategy as "documentary" films and books. In the lead up to the 2008 election, Bossie sought to have BCRA declared unconstitutional and to block the Federal Election Commission from requiring the disclosure of who funded what amounted to his movie-length ad. In July 2008, he lost his suit and sought review by the Roberts Court. Just ten days after Barack Obama won the 2008 presidential election, the Court took jurisdiction.
One of the very first amicus briefs filed in support of Citizens United was filed by one of the very first special interest groups created by Koch when he was merely a multi-millionaire: the Cato Institute, which was previously named the Charles Koch Foundation. Other Koch-tied groups also filed briefs, such as the Center for Competitive Politics (which was launched by Koch ally Brad Smith and which now calls itself the "Institute for Free Speech," a fancy way of writing "dark money").
The Roberts Court held oral arguments that spring, but decided not to issue a ruling. Instead, it ordered a rare second argument in September 2009. With that the die was cast.
More groups and politicians tied to Koch money and other billionaires then submitted amicus briefs on a new question: whether to overrule previous decisions, including the case McConnell lost just six years earlier. The only thing that had really changed in those few years was that Roberts and Alito were placed on the Court, with the help of Federalist Society leader Leonard Leo.
Roberts tapped Justice Anthony Kennedy to pen the ruling. On January 20, 2010, the Court issued a 5-4 decision that struck down BCRA's most important protections against dark money. Usually Supreme Court decisions are issued in the summer, but this partisan ruling was timed to fall on future presidential inauguration days. The date also maximized the ability of dark money groups to influence the primary and the general elections in the 2010 midterms.
As Kennedy, Roberts, Alito, Clarence Thomas, and Antonin Scalia were crafting the majority ruling, Bossie was working with the then-largely unknown Steve Bannon on another Citizens United video blaming the 2008 financial crisis on... baby boomers. That is, Bossie was trying to help the GOP yet again by pointing the blame away from Wall Street's reckless greed, the Bush administration's lax oversight of "Too Big to Fail" banks, and the pressure campaign of Kochs' Citizens for a Sound Economy to repeal Glass-Steagall restrictions on financial gambling (which Bill Clinton signed into law).
Kennedy's decision barred Congress--and with it the American voting public--from limiting dark money in our elections. It did so by effectively altering the meaning of our First Amendment to give new rights to billionaires. Justice John Paul Stevens and the three justices appointed by Democrats strongly objected. Public interest groups like the Center for Media and Democracy, Move to Amend, and Public Citizen condemned the decision too and called for a constitutional amendment to overturn it.
The only congressional remedy available, according to Kennedy, was disclosure, but he erroneously assumed the funders of this spending by "outside" groups would be revealed to the public. They were not and are not still. That is because Sen. McConnell has used the filibuster and the GOP's power to block disclosure of major donors to so-called "issue ads" in elections.
There is also no disclosure required for similar spending to pack the Court with judges chosen to help overturn legal precedents that billionaires, and their servants like McConnell, do not like.
What we did not know back when Kennedy read his 5-4 ruling was that two of the justices on his side had been part of Koch's political strategy meetings. It was only later we learned that in 2010 Charles Koch himself had sent his fellow right-wing billionaires a secret invitation bragging that "Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas" (emphasis added).
Thomas claimed he had just dropped by to visit his wife, Virginia Thomas, at Koch's meeting in Palm Desert because he was supposedly in town for a "Federalist Society" event that was not publicized anywhere. Leo later claimed the Federalist Society paid the Thomases' travel expenses to Palm Desert. The Thomases also attended a small, private dinner hosted by Koch near his posh estate there.
Notably, Thomas has failed to recuse himself from any of the cases that Koch-groups are involved in as parties or amicus, such as the Americans for Prosperity case last year where the Roberts Court decreed that a decades-old rule requiring non-profit groups to disclose their major donors to oversight agencies was suddenly unconstitutional. Meanwhile, his wife's political extremism and partisan activities have only seemingly increased with the advent of Trump. Senator Sheldon Whitehouse (D-RI) has called for better recusal requirements and more disclosure of who is really funding the "flotilla" of amicus briefs. He has also held hearings on the need to reform the Court and expose the dark money groups helping to pack the Court.
Another thing we now know is that Charles Koch made tax cuts and Supreme Court appointments the top two priorities for his political operations during the Trump administration, as uncovered by journalists with Documented and The Intercept. Koch secretly told his billionaire network that he was working with Leonard Leo on efforts to get Trump's judicial nominees confirmed. His political arm, Americans for Prosperity, also bragged publicly about how much it spent--from undisclosed sources--to push through Trump's Supreme Court nominees, which were chosen from the slate hand-picked by Leo and Don McGahn.
After Scalia died unexpectedly in February 2016, the Leo web of dark money groups surged with cash from secret sources to help block President Obama's nominee, Merrick Garland. They peddled the made-up claim that a vacancy could not be filled during a presidential election year.
"But-for the seats stolen by Republicans during presidential election years, the Court would now have a majority of judges appointed by Democratic presidents rather than Republican appointees hand-picked to reverse legal precedents like Roe v. Wade."
As Robert O'Harrow and Shawn Boberg of the Washington Post documented in 2019, Leo's web got huge sums from secret sources to help secure the confirmation of far-right activist Neil Gorsuch into that stolen seat. Leo's web also pushed through Whitewater investigation alum Brett Kavanaugh, despite documentation he lied under oath and evidence he sexually assaulted Dr. Christine Blasey Ford. The web also helped Amy Coney Barrett get confirmed less than a month before the 2020 presidential election despite her very controversial record.
But-for the seats stolen by Republicans during presidential election years, the Court would now have a majority of judges appointed by Democratic presidents rather than Republican appointees hand-picked to reverse legal precedents like Roe v. Wade.
What we also knew then is that Citizens United would unleash a mountain of dark money. We just did not know how much. In 2015, Koch Industries registered the url 889million.com, after his political network announced it planned to spend that specific amount to influence the 2016 election. That is, Koch was planning to deploy nearly one billion dollars in that election cycle, without revealing who else was contributing to that bomb of cash or how much of it was from himself or his company, the second largest privately held corporation in the United States.
Koch is not alone. Billionaire Robert Mercer and his daughter Rebekah stepped in to bankroll dark money groups to help Trump win. They also worked with Trump's strategist and Bossie's buddy Steve Bannon on Cambridge Analytica's efforts to use data-mining to micro-target voters.
Although Koch made noise about his decision not to endorse Trump in 2016, his political operation spent hundreds of millions to help the GOP win the Senate and other elective offices, a ground game that buoyed Trump. The Mercers have reportedly pulled back, but right-wing billionaire Peter Thiel has stepped in to help Trump launch his new social media operation. Other dark money groups surrounding Trump, like Turning Point USA, are also expanding their operations, so bankable is Trump's Big Lie grift.
Trump's rise is more attributable to his appeal to racist and economic fears of middle class whites than to dark money, but it is dark money that is buttressing him. It is also dark money that is helping the politicians who are marching to his tune, implementing the anti-democracy agenda he mapped out on Jan. 6, 2021, when he incited the violent insurrection at the Capitol.
Citizens United really should be called "Billionaires United." It has unleashed corporate titans and heirs of corporate treasuries--and Charles Koch is both--to use their massive wealth to reshape American politics and policies to suit their personal desires. The ruling is also an end-run around the legal precedent of one person, one vote. That is because it gives billionaires what Bob McChesney and John Nichols call a "dollarocracy." That is where rich people with more money have more say in our elections than most Americans. That is also a big part of what's broken in our country.
Citizens United is also part of a triumvirate of rulings by the right-wing Roberts Court that literally precipitated the unfolding disaster we are witnessing today on voting rights and redistricting.
But-for the ruling of the Roberts' Court to gut the Voting Rights Act (in Shelby County, Alabama v. Holder), the GOP would not be able to so easily advance Trump's deceitful demands that the freedom to vote be restricted based on his Big (and lucrative) Lie that the presidential election was stolen.
And but-for its ruling (in Rucho v. Common Cause) that limited the power of federal courts to protect voters from surgically-manipulated legislative map boundaries, the GOP would not be so free to gerrymander maps that award majority power to its politicians even when its party cannot win a majority in state-wide elections. It is Roberts' Court that has empowered the grossly distorted maps being engineered by GOP-controlled legislatures to preserve their power and try to capture the U.S. House of Representatives in 2022 and the rest of this decade. It is not a done deal, however. Though difficult, election turn-out by Democrats could still overcome these distortions.
Despite Roberts' hand in these destructive rulings, somehow his approval rating is higher than Dr. Anthony Fauci, according to a recent Gallup poll.
With American elections unmoored from real accountability to ordinary voters, the Roberts Court is taking aim at limiting the power of the federal government to protect other freedoms, except for the freedom to exercise one's religion. There, the Court has recrafted that right from a shield into a sword to strike out at equality and at a secular society that separates church and state.
The coming Roberts' Court decision on Roe will embrace religious objections of a minority of Americans to women's reproductive rights, even if it claims otherwise. The Roberts faction appears ready to take away women's fundamental freedom to choose their destiny (at least in the early stages of a pregnancy) without interference from the state. The Court will likely claim it is embracing local democracy, but what that really means is letting predominantly white male legislators in GOP-redistricted states transmute their religious beliefs--and that of the billionaires helping them retain power--into legally binding rules that supplant the equal rights of all women.
"The Roberts Court is rapidly headed toward disarming federal power as America faces enormous challenges like climate change and pandemics that can only be mitigated by a robust national government, not a "free" market that puts its own profits ahead of the public well being."
That is not all that is at stake.
The Roberts Court has been hand-picked to advance the goal of overturning numerous legal precedents that protect other freedoms. Leo, the dark money court-packer, boasted to funders at the right-wing Council on National Policy that America stands at the precipice of the "revival" of what he calls the "structural constitution." That phrase is being popularized to give a mantel of legitimacy to the coming judicial edicts blocking the power of federal agencies to regulate corporations on climate, Covid-19, and more.
The Roberts Court will claim that the law commands it, just as the Supreme Court did in the infamous Lochner Era, when the Court helmed by former president William Howard Taft repeatedly struck down progressive laws that sought to limit the power of corporations. Notably, in Roberts' year-end pronouncement, he repeatedly referenced Taft as preserving the "independence" of the Court from claims it was not-even though Taft is actually notorious for how he used the power of the Supreme Court to protect industries from regulation. Talk about foreshadowing.
The coming Roberts Court decisions likely to strike down the power of federal agencies will almost certainly be framed as pro-democracy. The Roberts faction may rule that the EPA cannot regulate carbon as pollution that endangers the public without Congress expressly passing a law about carbon specifically. They know that politicians beholden to carbon kings, like Koch, would likely use the filibuster and other tactics to block such legislation to try to remedy such a judicial ruling, just as Sen. McConnell has done in response to Citizens United.
The Roberts Court is rapidly headed toward disarming federal power as America faces enormous challenges like climate change and pandemics that can only be mitigated by a robust national government, not a "free" market that puts its own profits ahead of the public well being.
The only silver lining of the reactionary revolution being orchestrated by John Roberts' Court is that perhaps it will fuel a season or many seasons of citizen activism to overturn these regressive rulings. Hopefully, most people will not continue to be deceived by his crafting of claims that the Court is a fair umpire and that his very partisan faction is not partisan at all.
And, hopefully, the rulings to come will mark not the beginning of this new majority on the Court, but the beginning of its end.
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