The Best That Money Can Buy
The Supreme Court, Campaign Finance Reform, and Economic Inequality
The Big Beautiful Bill passed the Senate yesterday 51-50 with VP Vance casting the tie-breaking vote as President of the Senate. Alaska Senator Murkowski has gotten a lot of (deserved) attention for being the last hold-out but even more for publicly saying it was a bad bill AFTER she voted for it. Not only could she have refused to support the bill, but many others with reservations could have as well (looking at you, Josh Hawley).
Many commentators have noted that the bill is the largest upward movement of economic resources in decades and maybe ever in the country’s history. Supporters claimed that they HAD to pass the bill because the impact of letting the 2017 Trump tax cuts expire would be horrendous for the economy. Of course, this happens every time Republicans pass a huge tax cut. It’s got sunset trigger which is how they get around congressional rules. But they never had any thought of letting those tax cuts expire.
Of course, there are large scale economic implications for others in our society should the bill become law. States will be pushed to pick up the slack when SNAP (food stamp) benefits are cut. People will be forced off of Medicaid either because they cannot work or due to bureaucratic obstacles that disrupt their eligibility. Rural hospitals, already under stress, may not be able to maintain services. Not only that, but these same populations will be disproportionately impacted by increased inflation resulting from new tariffs or from the loss of food production due to immigration raids (probably both).
When we zoom out, we can see the pattern that helps explain these two realities; one for the rich and one for the poor. Which brings me to another chapter in Leah Litman’s Lawless.
Chapter four of her book looks at a variety of recent Supreme Court decisions regarding campaign finance, corruption, and inequality in general. As I noted on Monday, she does so through analogies from popular culture. For this chapter, she draws upon Arrested Development.
As the Feds seize the Bluth family’s treason-fueled fortunes, the family patriarch tries to signal where he has stashed some money the Feds wouldn’t find: “There’s always money in the banana stand,” he chuckles to his son. (He had literally lined the banana stand with hundreds of thousands of dollar bills. The rich think that money can get them out of anything and can get them through anything. Sometimes, they are right: money and the power it provides have shaped American institutions and politics. (144-145)
Litman tells the story of the 1905 Lochner decision, which invalidated workers’ rights (New York had established maximum hours per day worked in bakeries). The Court, in the midst of the Golden Age of Robber Barons, ruled that the hardships experienced by the workers were irrelevant. What was important was upholding the legitimacy of a contract entered into by equal parties. If the workers didn’t like the hours or conditions, they were free to work elsewhere. Intervening to address the inequality, as New York tried to do, was, in the eyes of the Court, discriminatory in picking sides.1
Public sentiment ran strongly agains the Court, especially as it tried to limit FDR’s New Deal programs. When the president tried to stack the Court (even though he failed), the Court backed down — for awhile.
Economic Inequality lessened during the decades following WW2. That is until the late 70s, when things start to shift. The subsequent advantage for the wealthy in America continued to expand with only minimal dips around the burst of the tech bubble, the financial crisis, and Covid. Whatever losses were sustained were quickly overcome once things returned to normal.
Too much wealth at the top of the economic structure, as I argued last week, gets expressed in political power. It means that the wealthy have resources to high lawyers and lobbyists, create think tanks, and make huge contributions (either personally or through pass-throughs) that shape political decisions.
Which is why in 2002, John McCain and Russ Feingold co-sponsored the Bipartisan Campaign Reform Act (known mostly at McCain-Feingold). It actually passed a Senate filibuster of 60 votes, which couldn’t happen today. It limited political action committees, set limits on individual contributions, and kept corporations from donating directly to candidates.
This system of campaign finance sought to achieve a kind of economic equality where political spending by the mega-rich would not vastly outpace everyone else’s. Campaign finance laws reflect legislatures’ approach to economic inequality and equality more generally. They recognize that, in a marketplace based on money, not everyone will be heard equally, so they seek to democratize political spending. (157)
You don’t have to be a Robber Baron to see that such a strategy would be anathema to folks like the Bluth family. Mitch McConnell filed suit immediately after the bill became law but did not prevail. But all was not lost for the wealthy campaign donors!
When Citizens United came before the Supreme Court, the Court opted to shift focus from the narrow question of whether the plaintiff’s actions were allowed under the law. Instead, they wanted to address a constitutional question that hadn’t been asked: is McCain-Feingold constitutional? (Bet you know their answer!)
[I]n January [2010], the Supreme Court released the opinion in Citizens United, overruling the Court’s previous decision and striking down, in its entirety, the federal prohibition on corporate election expenditures. As a result, non-profits such as Citizens United were free to raise money and repurpose donations into political campaigns. (159)
Later, the Court eliminated “the aggregate limits on political contributions”. This allowed individuals to spend unlimited amounts of money on SuperPacs. Recently, the Court ruled that it was just fine for Ted Cruz to pay off personal loans with unused campaign finance funds. They have also taken the teeth out of federal bribery cases, eliminating quid pro quo complaints.2
If some people have the resources to buy a bigger megaphone with their unrestricted cash, well, to the Court, that’s equality. It’s a modern twist on the French poet and novelist Anatole France’s quip,”The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the street, and to steal their bread.” In Citizens United, it is more like, “the law, in its majectic equality, forbids the government from prohibiting rich and poor alike from expending billions of dollars in politics.” (164)
What could be more equal than that? Maybe you too, reader, could have been the primary support for an certain Ohio Senate campaign or devoted hundreds of millions to the Trump 2024 campaign (or done the same in a losing effort in a Wisconsin Supreme Court race). Or attended the inauguration with your other rich bros before skipping off to Venice for a glamorous wedding.
It’s all about equal access. And it you have money, you should use it to protect your interests, even if those conflict with the interests of those less fortunate. As Lucille Bluth says, “It’s one banana, Michael. What could it cost, ten dollars?”
This is the level of economic awareness (and/or courage) being shown by elected Republicans as they consider the BBB in the House. Please contact your congressperson, especially if a Republican and explain the impact that the legislation will have. What we lack in money, we have in numbers.
This is precisely the logic of anti-DEI efforts. Any attempt to address shortcomings faced by a subgroup is unfair to those who would otherwise be advantaged.
She quips that the only way officials could be found corrupt is when they accept gifts or money from a donor and announce, “Okay, you bought me!”