Summer 2022

MONEY MATTERS: Do You Really Think They Will Stop at Roe??

The Supreme Court is on the cusp of asserting ultra-conservative power over federal policy based on ostensible interpretations of the Constitution. Alito’s Roe draft is only the beginning of what certainly may be the most remarkable political development in a Century: unfettered Christian-centric, corporate-funded judicial control that vastly limits what government is allowed to do but permits state governments to run rampant as they will when Roe disappears.

We all know the basics: two losers of the popular vote who eked out Electoral College wins (George H.W. Bush and Donald Trump), along with W’s dad who appointed Thomas, have managed to skew the Court so far to the right as to be unrecognizable to any centrist independent observer. W’s Alito and Roberts appointments plus Trump’s draconian troika of Gorsuch, Kavanaugh, and Coney-Barrett join Thomas in an unholy alliance poised to reshape basic governance in ways most would have thought unthinkable a few short years ago. The idea for this Court is that “unenumerated rights” to privacy, upon which the Roe decision relied, simply no longer obtain...poof. “Ooops, they made a big boo-boo 50 years ago,” or so their rationale goes. No, unless a filibuster-laden Senate can pass an explicit statute protecting a woman’s right to choose (not exactly a sure thing), the Court is about to say that states can do anything they wish. Let’s look forward to the day when a raped 11-year-old is forced to carry a baby to term because someone else’s idea of “god” has ordained the birth as part of His Grand Plan because one of those old white landowners in 1787 forgot to imagine that 287 years later women might want to control their own bodies. Since they couldn’t vote then, why bother to consider the interests of individual women at all? So, they didn’t.  Let’s raise a glass to Alito-esque “democracy.

The mistake, of course, is to believe that, once this power to alter America’s social landscape has been established, the cabal of Christian elitists controlling the Court will stop with only foisting 18th Century values about abortion on the rest of us. No, it’s pretty clear that access to contraception, marriage equality, and even bi-racial marriage will all be subject to the potential for reversal at the state level.

Far scarier, and even more likely, this reactionary Court will continue to expand its control over both the electoral process and the economy in ways that may take another American Revolution against tyranny to undo. Here are two good examples – currently working their way through the courts – that could continue our downward spiral into dystopia.

Cruzing for More Dark Money

With the Citizen’s United decision riding on the back of the Buckley decision (money equals speech) and even more on the shadowy, corrupt history of Roscoe Conkling’s lie that asserted that drafters of the 14th Amendment intended this crucial step undoing our sordid history of slavery also intended to include corporations has having equal rights to persons. As a result, and clearly with malice of forethought, any notion of fairness in our electoral lives is dying a slow, painful death. Conkling’s fabrication was, and remains, one of the great errors in U.S. jurisprudence that continues to bind us and provides the rationale for Citizens United, Buckley, and other decisions cementing the grip of “dark money” over our political system. (See Adam Winkler’s “’Corporations Are People’ is Built on an Incredible 19TH-Century Lie” in The Atlantic 3/5/18.) This abomination continues to thrive and anchors reactionary strategy aimed at dissolving the “administrative state,” and possibly the idea of democracy as we have come to know it in the latter half of the 20th Century.

I read the other day that Ted Cruz had cleverly provided the Supreme Court with another opportunity to overturn one of the last remaining constraints on campaign finance – thus creating a remarkably useful tool for deep-pocketed interests in particular public policy outcomes. More simply said: corruption. In what clearly was a conspiracy to have the court eliminate a constraint on political campaigns in repaying candidate loans, Cruz had lent his campaign in the last dying days of his predicted win of the Texas Senate seat some $260,000 - $10,000 more than the McCain Feingold limit of $250,000 that could be repaid. He then sued the Fair Elections Commission to be able to recover this last $10k – clearly a set-up for the litigation. In their rush to reaffirm the bizarre notion that spending money was simply “free speech” which everyone is (and all corporations are) guaranteed under the 1st and 14th Amendments, the lower Court speedily decided that of course there could be no limit on repaying these debts, even well after the election. This case will likely end up with the Supremes yet again undoing Congressional legislation (McCain-Feingold) that attempted to bring some sense to our “fair” electoral system already awash in money.

Soon, we will have a system where very wealthy people – and let’s be honest: they are mostly old white guys like me – can simply lend themselves gobs of money, outspend any primary or general election opponent, and then go begging to the dark money Super PACs for contributions that are then used to repay their loans. No chance, you say, that Big Pharma or Big Oil would think that helping Senator Joe Shmoe repay his multimillion-dollar loan might lead the Senator to side with them on a legislative issue. Nah, THAT would be….perfectly legal. Welcome to the Rube Goldberg version of “democracy” we are currently practicing in America where small, backwater dominantly white states each get 2 Senators while mostly African American District of Columbia gets 0, despite its larger population. Wild.

Let’s Also Deep-Six the Administrative State

Just as reversing Roe will throw women’s rights overboard like yesterday’s trash, a stealthy case against the Securities and Exchange Commission is working its way up to the Supremes that may well thwart decades of federal approaches to regulating the activities of corporations and businesses. The case is Jarkesy v. SEC and was recently decided by the 5th District Court of Appeals. Here’s the story.

For many years, Congress has empowered agencies with both a “rule-making” responsibility in complex areas, and a “rule-enforcement” power pursued through an administrative law process relying on administrative law judges with proven expertise. And the agencies so empowered are at the nexus of political conflict between the public interest and private corporate activities. These agencies include the SEC, EPA, Federal Trade Commission, EEOC, and the Commodity Futures Trading Commission. Financial markets, employment law, and reducing pollution are all deeply dependent on administrative law processes for most cases.

CNN described the 5th Circuit’s decision as an “exceedingly aggressive swipe” at agency authorities – not dissimilar to Roe in that it replaces settled law with a Constitutional reach saying that the 7th Amendment right to jury trials would apply to all such regulatory cases which drastically would change the time, cost, and effort involved in enforcement of federal regulation. One can almost hear Wall Street, big Pharma, and the American Chemistry Council doing high fives as they plan how to overwhelm the courts – overseen by non-expert judges – with case after case slowly eroding what is left of the “administrative state.” Like women abandoned to fend for themselves because a pressured social encounter led to an unwanted pregnancy, communities suffering from toxic pollution or investors manipulated by unscrupulous hedge funds will find themselves defenseless. And like those irresponsible boyfriends, regulated industries will be free to move on to the next vulnerable victim. American “exceptionalism” at its worst.

In an interesting twist, Justice Neil Gorsuch’s mother, Anne Gorsuch, served as Ronald Reagan’s EPA Administrator for 22 months before resigning in disgrace for having refused to provide Congress with requested data on toxic waste sites which the source industries vehemently opposed. As a result, she was found guilty of contempt of Congress.

It was more than curious that Gorsuch was never questioned in confirmation hearings about how his family history might impact his views on federal regulatory authority, as one might readily expect he might possess a somewhat less than open mind on the subject. And one wonders if, in a case affecting the EPA, Gorsuch might follow the Thomas example and simply not recuse, thus reinforcing the idea that these lifetime appointees each have their own individual code of ethics….or none, as the case may be.

As for the rest of us, as recourse we have only whatever is left of the “right to vote,” so those of us who still can will continue to tilt at the windmills hoping to overcome a rightwing, largely white, mostly male Senate for which preserving the filibuster is tantamount to gospel. Expecting the Senate to ever return to its historical role of advice and consent above the stench of politics is like waiting for the Baby Yoda to show up on the International Space Station.

Drummond Pike, a frequent Organizers’ Forum participant and contributor to these pages, was the founder and CEO of Tides in San Francisco, and continues to be involved in philanthropy and social change.

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