The New Tyranny: A Preface to the 2016 Elections in the United States

By Timothy K. Kuhner

Democracy in the United States has been replaced by a rival form of government premised upon the power of wealth. Not to be confused with mere corruption, plutocracy is an official system of rule built upon new interpretations of political speech, equality, and representation. The power of plutocracy rests upon public ignorance of and acquiescence to the profound transformation described in the pages that follow, perhaps the next American trend to sweep the globe.

 

The elections of 2016 are playing out upon a ramshackle platform of economic and political inequality that only recently became impossible to ignore. In a single two-week period in April of 2014, Thomas Piketty revealed that the bottom 50% of the population owns just 2% of national wealth, Martin Gilens and Benjamin Page found empirically that the wealthy enjoy nearly exclusive control over US government policy, and the Supreme Court struck down a key Watergate reform in McCutcheon v. FEC, enabling individuals to donate millions of dollars each to political campaigns.1 McCutcheon’s remarkable extension of the First Amendment’s free speech clause came on the heels of another Supreme Court case, Citizens United v. FEC, which granted corporations a constitutional right to unlimited political expenditures from general treasury funds. What do such constitutional sympathies and concentrations of power reveal about the United States?

The problem of money in politics runs far deeper than we care to admit. Piketty notes that the top 10% of US wealth holders could not possibly control 70% of national wealth as they do today if it were not for the existence of laws favourable to the concentration of wealth – a striking panorama of privatisation, deregulation, and tilted policies on entitlements, labour, and taxation. Beyond the decline of organised labour, Gilens and Page explain that wealthy citizens and interest groups are able to achieve such laws because they “regularly lobby and fraternise with public officials, move through revolving doors between public and private employment, provide self-serving information to officials, draft legislation, and spend a great deal of money on election campaigns.”2 Viewed in light of such facts, the depth of the problem is a function of government being co-opted by the few to secure their own interests over and above those of the public – an age-old recipe to be sure. John Locke defined tyranny as “the exercise of power beyond right[,] not for the good of those who are under it, but for [one’s] own private, separate advantage.” Certainly King George III qualified. But Locke also said this about tyranny: It is “a mistake to think this fault is proper only to monarchies.” “[O]ther forms of government are liable to it, as well,” Locke continued, “[f]or wherever the power is put in any hands for the government of the people, and… is…made use of to impoverish, harass or subdue them…There it presently becomes Tyranny.”3 Could it be the case that tyranny has re-emerged on American soil? Does an aristocracy of wealth now subjugate Americans?

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In the 2016 presidential primaries, 158 families provided about half of the seed money for all campaigns – $176 million in total.4 Because there is no meaningful public financing for federal campaigns, first-time candidates and officeholders running for re-election rely on private donors. That reliance is growing and few Americans can afford to play much of a role. In the 2014 elections, for example, just 0.3% of the adult population supplied 66% of all campaign funds.5 From 1992 on, in fact, the great majority of funds for national political campaigns has been provided by less than 1% of the population. This absence of public participation has not caused the privatised political market to falter, however. To the contrary, investment has increased to unprecedented levels – on average, over $1 million is now required to win a seat in the House, $11 million in the Senate, and $1 billion for the presidency.6

If this burgeoning market for political access and influence seems exclusive, consider the market for political advertising. Two of the largest superPACs operating in the 2014 elections, the Senate Majority PAC and American Crossroads, collected $90 million total. Two thirds of that money came in donations of $500,000 or more, meaning that less than 200 donors provided the great majority of funds.7 The same can be said of the $1.1 billion in outside spending during the 2012 elections: the top 200 donors to outside expenditure groups supplied approximately 80% of all the money.8 Those 200 people represent just .000084% of the adult population, and yet they have tremendous power over electoral outcomes. Just ask the four co-sponsors of campaign finance reform legislation who were unseated in the 2014 midterms amidst $13-24 million of outside spending against each of them.9 Even worse than traceable superPAC funds, $131 million in dark money stood behind the candidates who prevailed in the “11 most competitive races of 2014.”10 Anointed by financial power, a minuscule portion of Americans determines the initial viability and staying power of campaigns, shapes public perceptions of issues, candidates and parties, and tips close races one way or another. The total amount of money in politics continues to rise as does voter abstention.

Re-interpreted through free market ideology, the Constitution now demands that economic inequality translate into political inequality.

Given the privatisation of democracy, it should come as little surprise that economic inequality has risen so high – indeed, Piketty describes today’s levels of inequality as high enough to have always led to violent revolutions in the past.11 The riddle of American plutocracy lies not in its effects, but in its continued existence. If most people subjected to such inequality revolted, indeed, if our forefathers did not tolerate a royal aristocracy, why do we tolerate the aristocracy of wealth that rules over our politics and our economy? The suspense is heightened by numerous historical parallels, for that ‘exercise of power for private, separate advantage, made use of to impoverish or subdue the people’ was proper to a host of governmental systems that Americans, rightly or wrongly, take credit for defeating: not just monarchy, but theocracy, dictatorship, and communism as well. Piketty suggests an answer to the entire mystery, writing that the sustainability of today’s extreme levels of inequality “depends not only on the effectiveness of the repressive apparatus but also, and perhaps primarily, on the effectiveness of the apparatus of justification.” This is exactly right. Past tyrannical forms of government lasted so long because they employed sophisticated ideological and legal justifications, ruling the people as a matter of right, not merely as a matter of force. In the places where they endured, theocracy, monarchy, dictatorship, and communism all manifested as systems of belief, not just systems of oppression. Plutocracy follows this historical tendency.  

The importance of that axiomatic remark that ‘the Supreme Court has legalized corruption’ now comes into focus. Once political exclusion on the bases of race and sex had been ruled out by constitutional amendments and major legislation, such as the Voting Rights Act and Civil Rights Act, Congress continued forward to address political exclusion on the basis of wealth. Passing a comprehensive package of campaign finance reforms between 1971 and 1974, Congress aimed to “equalize the relative ability of all citizens to affect the outcome of elections” and slow “the skyrocketing cost of political campaigns[,] thereby … open[ing] the political system more widely to candidates without access to sources of large amounts of money.” Strict limits on political contributions and expenditures would finally reduce the conversion of economic inequality into political inequality, or so it seemed at the time. On the historic date of the nation’s bicentennial, just two years after Congress passed its reforms, the Supreme Court revealed an apparatus of justification for plutocracy.

Beyond overturning expenditure limits for individuals, candidates, and campaigns, Buckley v. Valeo rejected most of the thinking behind the movement for campaign finance reform. First, it decided that political spending qualifies for the same First Amendment protections as political speech itself, reasoning that speech and spending had become indistinguishable in “mass society.”14 Second, the Court banished Congress’ political equality concerns from the realm of money in politics: “[T]he concept that government may restrict the speech of some elements in society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assure the unfettered interchange of ideas.”15 Finally, as to Congress’ interest in reducing the cost of campaigns and bringing candidates without access to large funds into the fold, the Court announced that “[t]he First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise.”16 “In the free society ordained by our Constitution,” declared the Court, “it is not the government, but the people…who must retain control over the quantity and range of debate on public issues in a political campaign.”17

This rhetoric sounds emancipatory until we recall that “the people” behind the great majority of political donations and expenditures represent less than 1% of the adult population. In 2010, the Roberts Court defended Buckley from mounting concerns over democratic representation and political equality. Citizens United v. FEC held that “[i]t is irrelevant for purposes of the First Amendment that corporate funds may have little or no correlation to the public’s support for the corporation’s political ideas.” Re-interpreted through free market ideology, the Constitution now demands that economic inequality translate into political inequality. At first it appeared that the Court understood corruption, recognising that “a substantial and legitimate reason, if not the only reason . . . to make a contribution to one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors.” But then the Court approved of this dynamic with an Orwellian twist: “Democracy is premised on responsiveness.”18 “All speakers,” the Court observed, “use money amassed from the economic marketplace” and “[m]any persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary.”19 It does not matter that outcomes in dividends, interest, and salary are so uneven, because the Court decided that “influence over or access to elected officials does not mean that these officials are corrupt.”20 Indeed, influence and access on the basis of wealth are the new motor of democratic responsiveness and consumer sovereignty, an alternative to popular sovereignty, flows therefrom.

There are many examples of how the Court assembled plutocracy’s legal and ideological structure. In the 2008 case, Davis v FEC, the Court struck down a law that helped candidates run against wealthy competitors. The grounds? The law levelled the power of wealth. “Levelling electoral opportunities,” wrote Justice Alito for the majority, “means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election.”21 He went on to list those strengths: “Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name.”22 That was Justice Alito’s exhaustive list. There was no mention of democratic strengths, only those that relate to wealth, fame from the entertainment industry and family privilege. The law was unconstitutional in its attempt “to reduce the natural advantage that wealthy individuals possess in campaigns for federal office.”23 Having specified a limited universe of strengths that properly contribute to the outcome of an election, Justice Alito wrote that the “Constitution… confers upon voters, not Congress, the power to choose.”24 The Court’s reasoning was, once again, Orwellian, for the law at issue was part of a popular set of campaign finance reforms supported by voters. The message is that democracy may not trump markets, and so the vote is limited to market dominant candidates, not the other sorts of candidates who might emerge in an accessible civic space.

Since 1797, the year Paine so remarked, the US Congress and numerous state legislatures have enacted campaign finance reforms in pursuit of equality, but the Court has struck them down. Its free-market ideology reigns supreme. 

Attempting to strengthen its apparatus of justification for plutocracy, McCutcheon v. FEC, the Court’s latest opinion on money in politics, describes large donors as patriots: “First Amendment rights are important regardless whether the individual is…a lone pamphleteer or street corner orator in the Tom Paine mold, or…someone who spends substantial amounts of money in order to communicate his political ideas through sophisticated means.”25 It did not matter to the Court that Thomas Paine had been active in the French Revolution as well as the American one, going so far as to serve as a member of the French National Convention. “France has had the honour of adding to the word Liberty that of Equality,” Paine wrote.26 Since 1797, the year Paine so remarked, the US Congress and numerous state legislatures have enacted campaign finance reforms in pursuit of equality, but the Court has struck them down. Its free-market ideology reigns supreme.

While these Supreme Court cases are unpopular, the binding, authoritative power of the Court’s pronouncements is beyond doubt. Only a newly composed Court or a constitutional amendment can reverse them, and only the latter would promise a lasting solution. Until then, the United States will continue to labour under government of, by, and for the wealthy – a testament to the fragility of democracy and to the insidious adaptability of tyranny. Indeed, future generations may come to understand democracy as merely a bridge between the religious and royal despotisms of the past and the economic despotism that consolidated its power in our time. Everything depends on our ability to see through the capitalist ideology now masquerading as constitutional law.

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About the Author

kuhner-webTimothy K. Kuhner is an Associate Professor at Georgia State University College of law. He is the author of Capitalism v. Democracy: Money in Politics and the Free Market Constitution (Stanford University Press, 2014), and a graduate of Bowdoin College and Duke Law School.

References
1. April 2: the US Supreme Court’s opinion in McCutcheon v FEC; As shown on the first page of the opinion itself. McCutcheon v Fed. Election Comm’n, 134 S. Ct. 1434 (2014) <www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf>. April 9: the advance copy of Gilens and Page’s study; Kapur, S. (2014). Scholar Behind Viral ‘Oligarchy’ Study Tells You What It Means. Talking Points Memo, 22 April <http://talkingpointsmemo.com/dc/princeton-scholar-demise-of-democracy-america-tpm-interview>. April 15: the English version of Piketty’s Capital. See <www.amazon.com> (query ‘Piketty’ and ‘capital’) (reflecting publication date of 15 April 2014).
2. Gilens, M. and Page, B. (2014). Testing Theories of American Politics Perspectives on Politics, Volume 12(3), p. 567.
3. Locke, J. Two Treatises of Government (1988, Peter Laslett, ed.), p.400.
4. Confessore, N., Cohen, S. and Yourish, K. (2015). The Families Funding the 2016 Presidential Election. New York Times, Oct. 10.
5. Center for Responsive Politics, ‘Donor Demographics’ (Opensecrets.org)<www.opensecrets.org/overview/donordemographics.php>
6. On 2014, Center for Responsive Politics, ‘Donor Demographics’ (Opensecrets.org) <www.opensecrets.org/overview/donordemo

graphics.php> For elections between 1992 and 2012, <www.opensecrets.org/bigpicture/donordemographics.php?cycle=
2012&filter=A>. Lessig, L. (2014). What an Originalist Would Understand “Corruption” to Mean. California Law Review, Volume 102, Issue 1, p. 5.
7. Levine, C. (2014). Surprise! No. 1 super PAC backs Democrats. The Center for Public Integrity, 3 November, <www.publicintegrity.org/2014/11/03/16150/surprise-no-

1-super-pac-backs-democrats>.
8.McGehee, M. (2012). Only a Tiny Fraction of Americans Give Significantly to Campaigns. The Campaign Legal Center, 18 October <www.clcblog.org/index.php?option=com_content&view=

article&id=482:only-a-tiny-fraction-of-americans-give -significantly-to-campaigns>.
9. Center for Responsive Politics (2014). Outside Spending, By Candidate’ (Opensecrets.org) <www.opensecrets.org/outsidespending/summ.php?disp=C>.
10. Vandewalker, I. (2014). Outside Spending and Dark Money in Toss-Up Senate Races: Post-Election Update. Brennan Center for Justice, 10 November.
11. Piketty, T. (2014). Capital in the Twenty-First Century. P. 439.}
12. Ibid at p. 263.
13. Buckley v. Valeo, 424 U.S. 1, 24-26 (1976).
14. Ibid at p. 19 (“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”).
15. Ibid at p. 48–49.
16. Ibid at p. 57.
17. Ibid.
18. Citizens United v Fed. Election Comm’n, 558 US 310, 359 (2010).
19. Ibid at p. 351 (quoting Austin 494 US 652, 707 (Kennedy, J., dissenting)).
20. Ibid at p. 359.
21. Davis v. Fed. Election Comm’n, 554 US 724, 742 (2008).
22. Ibid at p. 742.
23. Ibid at p. 741 (emphasis added).
24. Ibid at p. 742.
25. McCutcheon v. FEC, 134 S. Ct. 1434, 1448 (2014) (internal marks removed).
26. Paine, T. (1797). Agrarian Justice, http://www.ssa.gov/history/paine4.html [https://perma.cc/J6DJ-56FN].