It was almost five years ago when Justice Anthony Kennedy declared a path to progress, writing in the Citizens United decision that the First Amendment assured corporate citizens’ right to apply unlimited money to politics, but transparency would allow voters to understand their messages “in a proper way.”
That seems a little naïve, doesn’t it? Corporations exist to protect human citizens from the consequences when corporate citizenship goes bad.
And things aren’t working in accordance with Kennedy’s vision. Now we get a bunch of messages from the Committee for God and Country and we’re not supposed to ask, who is riding in that wooden horse?
It’s one of the sad ironies of history that gave us the Citizens United decision. The untimely retirement of Justice Sandra Day O’Connor deprived the Court of something very important: a member with actual experience in the most political branch of government. She had been majority leader of the Arizona Senate. Her experience gave her an appreciation for sunshine much like that of Louis Brandeis. Her replacement, Samuel Alito, came to the Court with an outlook like that of Chief Justice John Roberts, forged in the crucible of Ed Meese’s movement conservative Justice Department of the 1980s.
Once, a lot of Republican leaders recognized the critical role of transparency in politics. Look at the testimony of Fred Thompson, Alan Simpson, Warren Rudman and John McCain in McConnell v. FEC. Even Mitch McConnell used to say, “Let everybody spend what they want and just make them disclose it.”
Remember those days?
Well, so what? We wouldn’t want plutocrats engaged in social engineering to experience business consequences for their political activity, would we?
Actually, some of us would. What other recourse do humans have? Surrender democracy to the will of the self-serving wealthy and their corporate machinery? Look how well that’s working for the distribution of income and wealth.
Transparency in politics is not just about knowing who is reaching for power. Money is given in politics for considerations. Transparency is how we recognize when those considerations have crossed the line of the unethical or the illegal. Transparency is our inoculation against corruption.
If you think we need less transparency, not more, look at what happened in the lame duck legislature. You think careers aren’t being made by selling out the public interest? Secrecy, reciprocity and personal gain are perfectly acceptable business ethics but they leave a lot to be desired as public ethics.
There is one area where the secrecy of money in politics really deserves the label of ‘dark money.’ That area is the justice system. Justice, after all, is not supposed to be about considerations. Justice is about equality under law.
Justice is the area where Michigan gets its crappiest marks for transparency of political spending. Election in, election out, our Supreme Court campaigns have the highest percentage of unreported giving and spending of all campaigns. It’s been that way this entire century. It’s an area where Michigan leads the nation.
Think what that means. Who has the greatest incentive to want a judge who will render a parochial version of predictable jurisprudence? The corporate citizen with the high-stakes appeal in the pipeline, that’s who.
The giving is fine, I guess. Those are the standards we live with today. But the judging of a major donor has to be unacceptable. Imagine litigating in opposition to the judge’s major donor. SCOTUS didn’t give us a bright line, but they did say that judging your financial patron is unacceptable. So, what we don’t know about the secret funders of judicial campaigns does hurt us.
And now the dark-money cloud has enveloped the political campaign of our top law enforcement officer, Attorney General Bill Schuette. Most of the ads you saw about Schuette this fall were run through a dark-money machine called Michigan Advocacy Trust.
The pressure and opportunities presented to state attorneys general has been the subject of two recent articles in the New York Times. Frankly, it looks as though some corporate citizens are looking for some friendly applications of prosecutorial discretion. And they can help a considerate prosecutor with that political career and some serious lifestyle weekends.
And where does that leave the rest of us vis-a-vis the justice system?
I sometimes hear it said that transparency in politics will lead to intimidation. You know, Charles Koch as a modern Medgar Evers, needing the protection of NAACP v. Alabama. Imagine this heartrending scene: David Koch is ambling down the aisle at Walmart and some crazy liberal pukes on his shoes. What could Mr. Koch do? Call a cop?
I’ve also heard that freedom to launder money into politics is channeling the Founding Fathers. I don’t think so. Those anonymous donors who dumped millions into the Michigan Republican Party and the Michigan Advocacy Trust to pay for ads touting Viviano, Zahra and Schuette are not the successors of Thomas Paine – and there aren’t any redcoats coming to take them away.
I think of Michigan as the Dark Money Capital of American politics. I don’t mean that in a complimentary way. As Justice Antonin Scalia said, if people won’t publicly own their political acts, democracy is doomed.
And that’s why plutocrats love their dark money.
PRO "Dark money" is a euphemism for free speech, like it or not