"In a time of universal deceit telling the truth is a revolutionary act." -George Orwell

Posts Tagged ‘Political Class’

Oligarchy In The U.S.A.- How The Wealth Defense Industry Protects The Ultra-Rich: The .0001%

In Uncategorized on March 2, 2012 at 5:51 pm

Oldspeak:A small fraction of wealthy Americans constitute a powerful donor class that provides the vast majority of candidates’ funds. Long before ordinary citizens get to vote, they say, their choices are reduced to politicians deemed acceptable by the richest Americans via a “wealth primary,” in which candidates straying from a narrow economic agenda are shut out of campaign funding.“For all their influence at the polls, guys like Joe the Plumber aren’t typically campaign contributors,” explains Sheila Krumholz, executive director of the Center for Responsive Politics. “You’re more likely to see John the Bond Trader bankrolling these campaigns.” And she’s right: Of the roughly 1.4 million individual contributions of $200 or more during the 2008 elections, three-fourths of the money came from a mere one-fifth of the donors, who in turn comprised one-tenth of 1 percent of American adults.”-Jeffery A. Winters Today in America, being ‘merely-rich’ is not enough to live ‘comfortably’ and be represented by government. Apparently living comfortably involves avoiding taxation by paying untold sums and devoting whole industries of lawyers, accountants, and wealth management agents to defrauding the government. A government by virtue of their extreme wealth and inherent political power resources, 400 men run. Democracy’s gone, Oligarchical Capitalism reigns.

By Jeffery A. Winters @ In These Times:

In 2005, Citigroup offered its high net-worth clients in the United States a concise statement of the threats they and their money faced.

The report told them they were the leaders of a “plutonomy,” an economy driven by the spending of its ultra-rich citizens. “At the heart of plutonomy is income inequality,” which is made possible by “capitalist-friendly governments and tax regimes.”

The danger, according to Citigroup’s analysts, is that “personal taxation rates could rise – dividends, capital gains, and inheritance taxes would hurt the plutonomy.”

But the ultra-rich already knew that. In fact, even as America’s income distribution has skewed to favor the upper classes, the very richest have successfully managed to reduce their overall tax burden. Look no further than Republican presidential contender Mitt Romney, who in 2010 paid 13.9 percent of his $21.6 million income in taxes that year, the same tax rate as an individual who earned a mere $8,500 to $34,500.

How is that possible? How can a country make so much progress toward equality on other fronts – race, gender, sexual orientation and disability – but run the opposite way in its policy on taxing the rich?

In 2004, the American Political Science Association (APSA) tried to answer that very question. The explanation they came up with viewed the problem as a classic case of democratic participation: While the poor have overwhelming numbers, the wealthy have higher rates of political participation, more advanced skills and greater access to resources and information. In short, APSA said, the wealthy use their social capital to offset their minority status at the ballot box.

But this explanation has one major flaw. Regardless of the Occupy movement’s rhetoric, most of the growth in the wealth gap has actually gone to a tiny sliver of the 1% – one-tenth of it, or even one-one-hundredth.

Even more shockingly, that 1 percent of the 1% has shifted its tax burden not to the middle class or poor, but to rich households in the 85th to 99th percentile range. In 2007, the effective income tax rate for the richest 400 Americans was below 17 percent, while the “mass affluent” 1% paid nearly 24 percent. Disparities in Social Security taxes were even greater, with the merely rich paying 12.4 percent of their income, while the super-rich paid only one-one-thousandth of a percent.

It’s one thing for the poor to lose the democratic participation game, but APSA has no explanation for why the majority of the upper class – which has no shortage of government-influencing social capital – should fall so far behind the very top earners. (Of course, relative to middle- and lower-class earners, they’ve done just fine.)

For a better explanation, we need to look more closely at the relationship between wealth and political power. I propose an updated theory of “oligarchy,” the same lens developed by Plato and Aristotle when they studied the same problem in their own times.

Who are the oligarchs?

How much wealth does it take to make someone an oligarch in the United States?

Not just any rich person is an oligarch. Oligarchs are those rich enough to buy the professional firepower of the WDI to defend their wealth. Pulitzer Prize-winning economics reporter David Cay Johnston says that “this can sometimes be an outlay of $10 million to avoid $30 million in taxes, and other times spending only $1 million to save the same amount.”

For some perspective, look at the income chart above, which breaks down the extent of material inequality in the United States. Pay special attention to the last column, the Material Power Index (MPI), which defines each income level as a multiple of the average income among the bottom 90 percent of American taxpayers.

Even at more than 30 times the average income of the bottom 90 percent of Americans, an average annual income of $1 million for those in the top one-half of one percent is still too modest to make them oligarchs. These citizens are certainly rich. But they don’t have enough material power to hire anything beyond the cheapest foot soldiers of the WDI.

Starting with the next threshold, however — the top one-tenth of 1 percent of incomes — the MPI suddenly quadruples from 32 to 124, and then leaps another six-fold to 819 for those with incomes in the top one-one-hundredth of one percent. In 2007, about 150,000 Americans had average annual incomes of $4 million and above. This is the threshold at which oligarchs begin to dominate the landscape.

A quick review

First, let’s review what we think we know about power in America.

We begin with a theory of “democratic pluralism,” which posits that democracy is basically a tug-of-war with different interest groups trying to pull government policy toward an outcome. In this framework, the rich are just one group among many competing “special interests.”

Of course, it’s hard not to notice that some groups can tug better than others. So in the 1950s, social scientists, like C. Wright Mills, author of The Power Elite, developed another theory of “elites” – those who wield more pull thanks to factors like education, social networks and ethnicity. In this view, wealth is just one of many factors that might help someone become the leader of a major business or gain a government position, thereby joining the elite.

But neither theory explains how the super-rich are turning public policy to their benefit even at the expense of the moderately rich. The mass affluent vastly outnumber the super-rich, and the super-rich aren’t necessarily better-educated, more skilled or more able to participate in politics; nor do the super-rich dominate the top posts of American government – our representatives tend to be among the slightly lower rungs of the upper class who are losing the tax battle.

Also, neither theory takes into account the unique power that comes with enormous wealth – the kind found in that one-tenth of the 1%. Whether or not the super-rich hold any official position in business or government, they remain powerful.

Only when we separate wealth from all other kinds of power can we begin to understand why our tax system looks the way it does – and, by extension, how the top one-tenth of 1% of the income distribution has distorted American democracy.

Enormous wealth is the heart of oligarchy.

So what’s an oligarchy?

Across all political spectrums, oligarchs are people (never corporations or other organizations) who command massive concentrations of material resources (that is, wealth) that can be deployed to defend or enhance their own property and interests, even if they don’t own those resources personally. Without this massive concentration of wealth, there are no oligarchs.

In any society, of course, an extremely unequal wealth distribution provokes conflict. Oligarchy is the politics of the defense of this wealth, propagated by the richest members of society.

Wealth defense can take many forms. In ancient Greece and Rome, the wealthiest citizens cooperated to run institutionalized states that defended their property rights. In Suharto’s Indonesia, a single oligarch led a despotic regime that mostly used state power to support other oligarchs. In medieval Europe, the rich built castles and raised private armies to defend themselves against each other and deter peasants tempted by their masters’ vaults. In all of these cases oligarchs are directly engaged in rule. They literally embody the law and play an active role in coercion as part of their wealth defense strategy.

Contemporary America (along with other capitalist states) instead houses a kind of “civil oligarchy.” The big difference is that property rights are now guaranteed by the impersonal laws of an armed state. Even oligarchs, who can be disarmed for the first time in history and no longer need to rule directly, must submit to the rule of law for this modern “civil” arrangement to work. When oligarchs do enter government, it is more for vanity than to rule as or for oligarchs. Good examples are New York City Mayor Michael Bloomberg, former presidential candidate Ross Perot and former Massachusetts Governor Mitt Romney.

Another feature of American oligarchy is that it allows oligarchs to hire skilled professionals, middle- and upper-class worker bees, to labor year-round as salaried, full-time political advocates and defenders of the oligarchy. Unlike those backing ordinary politicians, the oligarchs’ professional forces require no ideological invigoration to keep going. In other words, they function as a very well-paid mercenary army.

Whatever views and interests may divide the very rich, they are united in being materially focused and materially empowered. The social and political tensions associated with extreme wealth bond oligarchs together even if they never meet, and sets in motion the complex dynamics of wealth defense. Oligarchs do overlap with each other in certain social circles that theorists of the elite worked hard to map. But such networks are not vital to their power and effectiveness. Oligarchic theory requires no conspiracies or backroom deals. It is the minions oligarchs hire who provide structure and continuity to America’s civil oligarchy.

The U.S. Wealth Defense Industry

The threats to wealth that oligarchs face, and want to overcome, create the enormous profit-making opportunities that motivate the wealth defense industry, or WDI. In American oligarchy, it consists of two components.

The first is the mercenary army of professionals – lawyers, accountants, wealth management agencies – who use highly specialized knowledge to navigate 72,000 pages of tax code and generate a range of tax “products” and advice, enabling oligarchs to collectively save scores of billions of dollars, every year, that would otherwise have to be surrendered to the state. While most of us are what I call “TurboTaxpayers,” buying cheap tax software to navigate our returns and make routine deductions, oligarchs purchase complex “tax opinion letters” from professional firms. These letters are drafted to justify enormous nonpayments of taxes if the IRS ever questions how certain transactions produce losses, or how other accounting gymnastics make it appear that no gains or compensation occurred. The letters can cost up to $3 million each, but can save an oligarch tens or hundreds of millions of dollars in a given year.

Written by some of the most high-powered attorneys and firms in the industry, tax letters serve to intimidate the legal department of the IRS even before a prosecution is contemplated.

The Senate is aware of these letters – noting in a 2003 report on the “tax shelter industry” that “respected professional firms are spending substantial resources … to design, market, and implement hundreds of complex tax shelters, some of which are illegal and improperly deny the U.S. Treasury of billions of dollars in tax revenues” – but getting specific information about them is extremely difficult, since the IRS rarely prosecutes oligarchs. When it does, most cases are sealed, and oligarchs who work with tax attorneys can invoke attorney-client privilege. But in 2003, there was a breach of this fortress of secrecy when the Senate published detailed reports about illegal tax shelters created by the accounting firm KPMG.

According to the Senate, the KPMG tax shelters created “phony paper losses for taxpayers, using a series of complex, orchestrated transactions involving shell corporations, structured finance, purported multi-million dollar loans, and deliberately obscure investments” for 350 clients between 1997 and 2001. The fake losses totaled about $8.4 billion, or $24 million per client; applied against their incomes, these losses reduced the taxes of each oligarch by an average of $8.3 million, or $2.9 billion for the group.

One of the reasons this case was exposed is that it was all rather down-market, using cheap cookie-cutter tax opinion letters priced at a mere $350,000 each.

Not only did all the firms and banks conspiring on behalf of these 350 oligarchs – and the oligarchs themselves – know that the investments “had no reasonable potential for profit,” but KPMG calculated that even if it was fined for failing to disclose the shelters, it would still earn far more in fees than it would pay in fines. The firm was fined $456 million. Even more incredibly, more than a dozen KPMG clients sued the firm for the taxes and penalties incurred after being discovered – the suits claim that KPMG bungled its job of creating shelters for tax evasion with zero legal risks for oligarchs. It’s tantamount to suing your hit man for a sloppy murder.

The second component of the WDI is the nitty-gritty legwork that keeps the tax system sufficiently porous, complex and uncertain enough to be manipulated. Some oligarchs do this work themselves, speed dialing public officials to directly complain about laws and regulations, but most do not. Instead, WDI professionals, motivated to earn a share of annual oligarchic gains, constitute a highly coherent and aggressive network for political pressure. These lobbyists fight to insert favorable material into the tax code, cut sections that cause problems, and block threats on the horizon.

Apologists for havens

Discussions about money in politics often begin with campaign finance reform. Advocates argue that a small fraction of wealthy Americans constitute a powerful donor class that provides the vast majority of candidates’ funds. Long before ordinary citizens get to vote, they say, their choices are reduced to politicians deemed acceptable by the richest Americans via a “wealth primary,” in which candidates straying from a narrow economic agenda are shut out of campaign funding.

“For all their influence at the polls, guys like Joe the Plumber aren’t typically campaign contributors,” explains Sheila Krumholz, executive director of the Center for Responsive Politics. “You’re more likely to see John the Bond Trader bankrolling these campaigns.” And she’s right: Of the roughly 1.4 million individual contributions of $200 or more during the 2008 elections, three-fourths of the money came from a mere one-fifth of the donors, who in turn comprised one-tenth of 1 percent of American adults.

But while this fraction does coincide with our approximation of the size of the American oligarchy, campaign donations are not oligarchs’ primary or even most effective strategy for political influence. Academics Michael Graetz and Ian Shapiro explain this in their 2005 book, Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth.

“Campaign contributions, soft money, spending limits for political candidates and the like have become controversial issues,” they admit, “but they mattered little in the estate tax fight.” The battle was between smaller oligarchs and the biggest players at the top. Believing it unlikely that the elimination of the estate tax could be extended indefinitely, a significant number of wealthy Americans with a net worth between $5 and $15 million wanted the threshold moved up to exempt their estate tax. In exchange, they supported a higher estate tax rate on everyone above the threshold. Big oligarchs took the opposite position. They wanted no estate tax at all. But if Congress was going to bring it back, the ultra-rich supported a lower exemption in exchange for a lower overall rate.

The big oligarchs won again – but not because of campaign finance. “Money mattered more fundamentally in shifting the tectonic plates underlying American tax debates,” Graetz and Shapiro suggest. And this is precisely where oligarchs deploy their resources in the WDI.

Oligarchs’ “three decades of investments in activist, conservative think tanks” has blazed an ideological path that drones in the WDI follow. Activists at institutions like the Heritage Foundation supply “ideological ammunition to the lobbyists and interest groups … who work relentlessly … to keep up the tax-cutting pressure on the Hill.”

This pressure was hard at work in President Obama’s feeble attempt to curtail offshore tax havens in 2009. In the middle of massive public bailouts to the financial system and large bonuses on Wall Street, the president proposed stronger measures to fight against who he called “tax cheats,” the individuals using offshore tax havens to deny the government nearly $70 billion a year – a level equal to about seven cents on every dollar of taxes paid honestly.

But Obama’s proposals were less aggressive than his rhetoric. The president urged Congress to support efforts to sanction nations that maintained secrecy on bank accounts and corporate entities, and sought to hire 800 additional IRS agents “to detect and pursue American tax evaders abroad”; these measures were projected to save a mere $8.7 billion over 10 years – about one percent of the losses from offshore accounts. Despite the timidity, the proposals received only a lukewarm response from Democrats and outright hostility from Republicans, who argued that they would cripple American corporations’ ability to compete globally.

Dan Mitchell, a senior fellow (i.e. mercenary) at the Cato Institute (a think tank financed by American oligarchs), defended tax havens as “outposts of freedom.” If Americans are concerned that “individuals are moving their money to countries with better tax law, that should be a lesson to us that we should fix our tax law.”

In other words: Let’s decrease taxes on the super-rich.

The WDI, arising naturally from the opportunities and risks created by enormous wealth, has spawned its own pile of these opinion-makers, free to spread their ideas through a compliant corporate media while oligarchs themselves are free to look on.

Oligarchy, or Democracy?

To argue that the United States is a thriving oligarchy does not imply that our democracy is a sham: There are many policies about which oligarchs have no shared interests. Their influence in these areas is either small or mutually canceling.

Though it may strike at the heart of elitism, greater democratic participation is not an antidote to oligarchic power. It is merely a potential threat. Only when participation challenges material inequality – when extreme wealth is redistributed – do oligarchy and democracy finally clash.

The answer to the question of inequality, then, is troubling. Wars and revolutions have destroyed oligarchies by forcibly dispersing their wealth, but a democracy never has.

Democracy and the rule of law can, however, tame oligarchs.

A campaign to tame oligarchs is a struggle unlikely to fire the spirits of those outraged by the profound injustices between rich and poor. However, to those enduring the economic and political burdens of living among wild oligarchs, it is an achievement that can improve the absolute welfare of average citizens, even if the relative gap between them and oligarchs widens rather than narrows.

A graduate student in one of my seminars – resisting my terminology – once declared that the “U.S. has rich people, not oligarchs.” More than anything else, that statement claims that somehow American democracy has managed to do something no other political system in history ever has: strip the holders of extreme wealth of their inherent power resources and the political interests linked to protecting those fortunes.

Of course, this hasn’t happened.

But it is endlessly fascinating that we’re now in a moment when Americans are once again asking fundamental questions about how the oligarchic power of wealth distorts and outflanks the democratic power of participation.

Jeffrey A. Winters is an associate professor of political science at Northwestern University. For a more extensive explanation of his theory of oligarchy, read Oligarchy (Cambridge University Press, 2011).

 

Why Is the ACLU Helping The Richest Americans Buy Our Elections?

In Uncategorized on February 21, 2012 at 4:17 pm

Oldspeak: “Plutocrats come in Red and Blue. Elephantine and Asinine. You can bet your ass Newt Gingrich isn’t the only Presidential candidate with a Billionaire benefactor. Obama has them too, the difference is he’s not being called to account for it, he’s openly talked of raising ONE BILLION dollars to finance his reelection campaign. I ask you What’s democratic about that?  How does someone with the means to raise that sum of money represent the interests of all Americans? He doesn’t.  He represent the interests of his benefactors. As long as unlimited monetary donations from multinational corporations, foreign investors and god knows who else with millions to ‘contribute’ is allowed, plutocracy will be order of the day in the U.S. of A.  Need we any more evidence that the 2 party system has failed, and it hopelessly corrupted with money, greed, and cronyism? ‘The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.’ -Steven Rosenfeld

By Steven Rosenfeld @ Alter Net:

The American Civil Liberties Union has earned its reputation as the nation’s foremost legal opponent of government censorship and defender of First Amendment political speech. But increasingly, this national organization with 500,000 members and a $70 million annual budget has another legacy—helping the wealthiest Americans and institutions spend unlimited sums on elections.

This complex legacy follows a nearly four-decade history of filing briefs in the Supreme Court and lower federal courts, virtually all of them arguing that the door to censorship, via regulation of core political speech, must never be opened. But various forces in the courts, the political world, and inside the ACLU are converging that may prompt the ACLU’s national board to reexamine its hardened stance in a more nuanced light, just as it moderated its policy on public financing of elections soon after the Supreme Court’s controversial Citizens United ruling.

The pressure went up considerably on Friday, as two U.S. Supreme Court Justices said the Court should reopen Citizens United, as they suspended a Montana Supreme Court ruling that upheld the state’s century-old ban on corporate electioneering. Unlike the ACLU’s national office, which urged the Court to remove restrictions on independent—or non-candidate related—electioneering, the Montana ACLU argued this wasn’t about censorship at all, but preventing corruption and ensuring Montanans’ voices could be heard in elections.

“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” wrote Justice Ruth Bader Ginsburg, with Justice Stephen Breyer joining. A hearing “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway.”

Two phrases in the justices’ statement may have particular resonance for the ACLU’s national board—the “experience elsewhere” and “corruption or the appearance of corruption,” which suggest constitutional issues apart from censorship. In Citizens United, the ACLU had argued that independent expenditures were the kind of “speech that lies at the heart of the First Amendment” and must not be censored.

According to Burt Neuborne, the ACLU’s former national legal director and now legal director at the Brennan Center for Justice, only one perspective matters to an organization that has weathered criticism for decades for defending unpopular people and causes: whether new facts from current events and recent changes in law demand a reevaluation of their position. As the two justices suggest, the 2012 presidential campaign, in combination with the Court majority’s recent aggressive deregulation of campaign financing, may be that spark.

The presidential campaign has seen what’s left of the nation’s campaign finance laws flouted in a striking way that cannot have gone unnoticed within the ACLU; it has revealed that critical rulings in Citizens United (and the D.C. Circuit Court in a ruling that followed, SpeechNow.org) were at best politically naïve constructions. This is because 2012’s electoral landscape is presenting free speech issues that are not about state censorship—but what American democracy should look like and how big money functions in it.

The ACLU was not responsible for the Supreme Court’s decision to expand Citizens United from a narrow case to one remaking big portions of campaign finance law. But like many times before, it urged deregulation of electioneering—which the Court’s majority did for independent expenditures. Just weeks later, an appeals court in SpeechNow.org drew on this ruling, allowing individuals and corporations to make unlimited contributions to political committees, so long as those groups only make independent expenditures and do not coordinate with candidates. That is how today’s super PACs emerged.

In Citizens United, the Supreme Court made a series of remarkable assertions. It declared that independent expenditures could not corrupt candidates, as they would be truly independent and operate apart from the candidates. But neither the Supreme Court nor the Speechnow.org court said how to avoid coordination, assuming the problem away. Everyone on the Court but Justice Clarence Thomas held that disclosure of spending was permissible, not recognizing that current disclosure rules allow donors to operate in the dark behind innocuous stage names. Like coordination, corruption was also dumbed down. Invoking the long-established doctrine that the only legitimate reason for regulating campaign funds is curbing quid pro quo corruption or the appearance of it, the majority watered this concept down saying a lot about what corruption was not, namely access, influence and ingratiation of candidates, but next to nothing about what quid pro quo corruption was, apart from buying votes. Against this backdrop, Justice Anthony Kennedy, writing for the majority, made the startling assertion that limitless independent expenditures in elections could not possibly cause the public to lose faith in our democracy.

Needless to say, his prediction has not been borne out by events. Recent nationwide polling has found 55 percent of Americans oppose the decision, and bigger numbers believe that their voices are diminished compared to big donors and lobbyists. It is not hard to see why the public is upset and discouraged. Presidential candidates’ former campaign staffers are managing the supposedly independent committees, mocking that supposed independence. By uniformly taking the low road, they complement the official campaign’s positive messaging showing further coordination. The top donors use the fiction of independence to ignore federal contribution limits and write million-dollar checks, including to political non-profits that do not disclose their names. To suggest that an individual or corporation writing six- or seven-figure checks to back candidates or parties does not expect payback is naïve, former political consultants say. Meanwhile, a voluminous record discussing independent expenditures, coordination and corruption was before the Court during its deliberations. Citing this record, Justice John Paul Stevens in his Citizens United dissent wondered how the majority could be so indifferent.

“On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is being spent from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence,’” he wrote. “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

These developments raise specific First Amendment issues that are not about state censorship of political speech, but about corruption and distortions of the democratic process. These issues have been noted not only on editorial pages and parodied on late-night TV, but from within the ACLU itself. The Montana ACLU affiliate weighed in before the recent Montana Supreme Court decision, taking the opposite view of the national ACLU office. And New Mexico’s ACLU chapter did not interfere this month as that state’s legislature passed a resolution calling for a constitutional amendment to overturn Citizens United.

Moreover, in recent weeks, a respected Second Circuit judge took issue with Citizens United in a concurring opinion in a case involving New York City’s public financing system. “All is not well with this law, and I believe it appropriate to state in a judicial opinion why I think this is so,” wrote Guido Calabresi, a U.S. Court of Appeals judge and former Yale Law School dean, in comments to late 2011 ruling. Calabresi’s remarks address the majority’s contention in Citizens United—which echoes the national ACLU’s view—that unfettered political speech regardless of the speaker is paramount. He began by quoting Luke 21:1-4.

As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow has put in more than all the others. All these people gave their gifts out of wealth; but she out of her poverty put in all she had to live on.”

Like Luke, Calabresi noted that the wealthy will drown out the political speech of poorer people by virtue of spending more to send a message—having a larger megaphone. Additionally, he said that such domination of the airwaves also “obscures the depth of each speaker’s views,” as one cannot tell if the voice being eclipsed is whispering, crying or yelling—conveying the intensity of their opinions. “And that is a problem of profound First Amendment significance.”

“There is perhaps no greater a distortive influence on the intensity of expression than wealth differences,” he wrote. “The wider the economic disparities in a democratic society, the more difficult it becomes to convey, with financial donations, the intensity of an ordinary citizen’s political beliefs. People who care a little, if they are rich, still give a lot. People who care a lot must, if they are poor, give only a little. Jesus’ comment about the rich donors and the poor widow says it all.”

In other words, in 2012, when supposedly independent super PACs and political non-profits are raising millions from wealthy individuals and corporations whose actions are coordinated in all but name only with the candidates, and disclosure by those political entities is untimely or non-existent, the nation is facing serious First Amendment issues that do not neatly fit the ACLU’s anti-censorship line.

Convincing the ACLU

The ACLU is a nationwide organization with independent affiliates in every state and Washington, DC, and a headquarters and national legal department in New York. Its board of directors has representatives from every state and from its 500,000 members. As such, it is one of the most powerful legal advocacy organizations in the country.

For decades, people inside and outside the ACLU have tried to get its board to moderate its campaign finance views. Since 1970, it has taken up the issue two dozen times. The key question, according to Neuborne, its former national legal director, is whether today’s rising calls to restrict the wealthiest Americans and institutions from spending unlimited money ‘independent’ of campaigns is just today’s version of censoring society’s latest villain, as the federal government once tried to do with Communists, Nazis, gays, minorities and pornographers—or is something constitutionally different going on in today’s deregulated campaign finance environment?

One of the ACLU board’s long-held assumptions, which was affirmed in the Supreme Court’s 1976 Buckley v. Valeo ruling, is that candidates and independent groups who spend their own money in elections constitute a form of free speech that must not be regulated. In Buckley, the Court held that a new congressional law’s limits on campaign spending by office seekers and independent groups were unconstitutional. It ruled, however, that campaign contribution limits were constitutionally permissible in the interest of preventing corruption or its appearance with candidates, an interest that candidate and independent expenditures did not prevent. Buckley’s framework has led to today’s billionaires writing million-dollar checks to the supposedly independent super PACs and political non-profits, and in turn, voters in 2012’s early presidential contests hearing their views dominate the airwaves and debate.

The ACLU includes Buckley on its list of its most important 20th-century victories. Moreover, in the 36 years since that case, with few exceptions, the Court and the ACLU board both have treated spending money in elections as the purest form of protected constitutional speech there is—not conduct that can be regulated. That is a key legal distinction. Other areas of First Amendment law are not this clear-cut and all kinds of speech are regulated without seeing censorship issues. That raises the question of why should political speech in elections be so black and white, or can it be balanced with other democratic interests?

The ACLU’s assertion that political messaging is pure speech whose regulation amounts to censorship infuriates not just state and federal judges but many democracy advocates, particularly those who believe big money distorts the process and acts to suppress the speech of people of lesser means.

“It’s not speech itself and it never has been,” said John Bonifaz, co-founder and director of Free Speech for People. “It is conduct not speech, and any regulation of spending of campaign money in elections is the regulation of the manner of speech, to ensure that anyone who has a 1000-megawatt bullhorn is not able to drown out anybody else’s speech.”

A series of former top national ACLU officials have tried to get the national board to change its position. In fairness, the board did change its policy in April 2010 after Citizens Unitedsaying that spending limits were permissible for candidates that took public financing. And its board, noting this was unprecedented in ACLU history, agreed that “reasonable” contribution limits were acceptable, although that has been settled law since Buckley. But these changes re-enforced laws established decades earlier. And on the key holdings in Citizens United, the board did not budge.

“You can be furious at guys like that, especially when they win,” said Neuborne, who now believes the ACLU national policy is on the wrong side of history and the Constitution. He went before the board to make that case after Citizens United came out, debating Floyd Abrams, a famous First Amendment attorney whose legal career has spanned defending the New York Times to shielding major tobacco companies from federal health regulations.

“Their trumping legal argument is that you have to make an overwhelming showing of need before they will sit still for censorship. And they say your overwhelming showing of need is that rich people have too much power in the society, and they are distorting the democratic process. Their argument is, ‘Look, there are a lot of rich people and a lot of them disagree. So if the rich people cancel each other out, what’s the big deal? All they do is fund democracy. People get more speech and the rich folks pay for it.”

That’s not all the ACLU’s board says, said Neuborne. “Second thing they say [is that] if you think that rich folk’s speech is skewed, you have to show me facts to demonstrate that. You just can’t tell me it’s a problem. Show me which election it has happened in. Show me where one side blew out the other side to the point where the other side wasn’t able to make its case to the electorate. You know what, I can’t make that showing. The closest it happened interestingly was Florida, when Romney outspent Gingrich five to one. I think it demonstrably changed the outcome of the election. But you cannot argue that national elections are shifted that way, because in national elections that parties are relatively equally balanced in terms of money.”

Indeed, 2012 is turning into exactly that kind of political arms race. While most of the early independent spending has been in the Republican presidential race, the Democrats are quickly falling in line. The Obama re-election campaign has said it would refer donors to a super-PAC run by a top ex-Obama campaign staffer—another instance of admitting that these PACs were anything but “independent” of the campaigns, the concern that Justice Kennedy turned a blind eye to Citizens United. In liberal circles, Credo Mobile, a phone company that has raised millions for progressive causes, said it too would form a super-PAC for the 2012 election. So has ActBlue, which has a traditional PAC that can donate to candidates and an independent super-PAC.

Neuborne knows American elections do not benefit from this spiral—which only elevates the role of wealthier participants at the expense of Americans of more modest means. The question is how to convince the ACLU board. It may have debated its response to Citizens United too soon, he said, noting that Abrams argued the organization would look foolish after siding with the Court majority in the case and winning—only to reverse its position. That, however, was a political argument, not a constitutional one. Neuborne said 40 percent or more of the board believe it is time to take a more nuanced view.

“Where the ACLU goes off the rails is that it forgets at some point that spending massive amounts of money ceases to be analogous to just pure speech and becomes an exercise in power,” Neuborne said. “I think that the ACLU is forgetting that the First Amendment is democracy’s friend, not democracy’s enemy.  And when it demonstrably hurts democracy there has to be something wrong with a policy that just digs in and says, ‘Sorry, the First Amendment made us do it.'”

The ACLU’s national press office declined to comment or make any attorneys available for this article. Calls and emails to ACLU litigators, current and former, who litigated many of its political speech cases before the Court also were not returned.

However, Neuborne is hardly alone in his analysis of how First Amendment fundamentalism can fray the fabric of political speech and democracy. Supreme Court Justices, starting with Byron White’s dissent at the start of the Court’s modern deregulatory regime in Buckley, and John Paul Stevens, whose 2010 dissent in Citizens United, catalogued the dangers of unregulated big money in elections.

“While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment, “Stevens wrote. “It disregards our constitutional history and the fundamental demands of a democratic society.”

Unlike the 1976 Buckley decision, which slowly transformed America’s campaign finance landscape over many years, the impact from Citizen United has come in barely two years. The Court’s majority in Citizens United did not anticipate these consequences. It puts those who argued with the majority—such as the ACLU’s national office—in an awkward place, because as new facts have emerged, so have nuanced political speech issues that cannot be adequately answered by saying censorship is the most important First Amendment issue.

And Citizens United may be headed back to the Supreme Court. On Friday, the Court issued a stay in a suit challenging Montana’s 1912 ban on corporate campaigning. The Court could overrule Montana without a hearing—citing the supremacy of the nation’s highest court over state courts. Or it could hold a hearing to re-evaluate parts of it in light of new facts and public perceptions.

Should the Court hear the Montana case, the ACLU board may be pushed to re-evaluate its policy. Whether it will remains to be seen. The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.

Steven Rosenfeld covers democracy issues for AlterNet and is the author of “Count My Vote: A Citizen’s Guide to Voting” (AlterNet Books, 2008).

© 2012 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/154184/

Class Dismissed: How Television Frames The Working Class

In Uncategorized on December 9, 2011 at 1:09 pm

Oldspeak:Class Dismissed explores the ways in which race, gender, and sexuality intersect with class, offering a more complex reading of television’s often one-dimensional representations. The video also links television portrayals to negative cultural attitudes and public policies that directly affect the lives of working class people. It examines the patterns inherent in TV’s disturbing depictions of working class people as either clowns or social deviants — stereotypical portrayals that reinforce the myth of meritocracy.’ A brilliant deconstruction of TVs transformation in its beginnings with accurate depictions of working class life, to its infiltration by powerful commercial interests who demanded sanitized, product placement filled depictions of middle class life. Where the working class are constantly aspiring to consume more and more. How It propagates deeply ingrained stereotypes & the subtle propaganda-filled myths of a ‘classless society’ where everyone has access to “The American Dream”. Class judgement abounds. Racism, sexism, bigotry, and societally generated downward pressures on people do not. Conformity and consumption in the prescribed ways are glamorized any deviation from prescribed ‘norms’ are demonized or worse ignored/not depicted.  Must see TV!

 

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