Will Roberts and Rove Stage an Electoral Coup d’État?

The Floodgates Open“When the Citizens United decision was handed down, it was the most partisan decision since Bush versus Gore. … And I’m just concerned that this case is going to open the floodgate for corporate spending.”

—Vermont Senator Patrick Leahy, March 10, 2010

IN FEBRUARY 2008 DAVID BOSSIE TOLD ME he would prevail in a lawsuit against the Federal Election Commission. The agency had ruled that Bossie’s 90-minute Hillary Clinton documentary was a political advertisement and therefore subject to restrictions in the McCain-Feingold campaign finance law. The fact that the film had been produced by a non-profit advocacy group that refused to release the names of its donors subjected it to even tighter restrictions.

Hillary: the Movie pieces together attacks by right-wing commentators, film clips and stills of shady individuals who had been associated with the Clinton administration, stories told by disaffected government employees, and a series of unflattering shots of Hillary Clinton. Its intent to portray Clinton as unsuitable for any elected office was evident, and it was released on DVD while she was ahead in Democratic presidential primary polls.

I knew Bossie’s history. I wasn’t surprised by his work.

In 1988, working for the right-wing advocacy group Citizens United, he produced the infamously racist Willie Horton ad used against Democratic presidential candidate Michael Dukakis in the race with George H.W. Bush.

In 1992, he was responsible for a TV ad directing viewers to a telephone hotline where they could listen to recordings of Bill Clinton talking to Gennifer Flowers, with whom Clinton had had an affair. (The elder George Bush described Bossie’s tactics as “filthy” and filed an FEC complaint against him.)

Also in 1992, he stalked the ailing parents of a young woman who had committed suicide in Arkansas in 1977, determined to prove that she did so because she had had an affair with her law professor, Bill Clinton.

From 1992 to 1995 he dug up dirt on Bill and Hillary Clinton, again for Citizens United.

In 1995, North Carolina Republican Senator Lauch Faircloth hired him to work as the lead investigator on the Senate Whitewater Committee investigating the Arkansas real estate deal that led to the impeachment of Bill Clinton.

In 1997, Rep. Dan Burton, the unhinged Indiana right-winger who chaired the House Government Reform and Oversight Committee, hired Bossie to investigate the fundraising transgressions of the Clinton administration. Bossie seemed obsessed with Clinton’s ties to foreign donors trying to influence U.S. policy.

In 1998 Bossie was fired after releasing an edited transcript of jailhouse telephone conversations of Webster Hubbell, a former law partner of Hillary Clinton whom Bill Clinton appointed as assistant attorney general.

At the time, Hubbell was serving 21 months in a federal prison for defrauding his law partners and clients, and for tax evasion, charges that were a result of Kenneth Starr’s investigation of the Clintons. Bossie released the deliberately misleading transcript the day before Hubbell and his wife were indicted on separate charges (which were subsequently dismissed). He had edited out passages in which Hubbell discussed his and Hillary Clinton’s innocence.

The release of the tapes was more than Republican Speaker Newt Gingrich could accept. Burton “fired the one person he should have fired,” Gingrich said at the time. Gingrich and Bossie now collaborate on film projects.

It was on the work of this squalid political operative — and one of the most ideological and intellectually dishonest jurists to ever wear a black robe — that the fate of electoral democracy in this country turned in 2010.

CORPORATE COURTESAN—With Dave Bossie, what you see is what you get. That can’t be said of Supreme Court Chief Justice John Roberts, who guided the court to the ruling that allows corporations and unions to spend money on electoral politics.

During his confirmation hearings, Roberts assured senators that if confirmed he would adhere to the principle of stare decisis, deciding cases based on standing precedents.

Asked by Judiciary Committee Chair Patrick Leahy if he would decide cases in the tradition of Justices Benjamin Cardozo and Felix Frankfurter, who were committed to precedent, Roberts responded:

“Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, ‘To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.’

“So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.”

In a response to Pennsylvania Senator Arlen Specter, Roberts further developed the theme:

“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough — the court has emphasized this on several occasions — it is not enough that you think the prior decision was wrongly decided.”

In more than a dozen responses to senators’ questions Roberts affirmed and reaffirmed his high regard for precedents in the Supreme Court’s deliberations.

He was, in a word, lying. (Or had he forgotten?)

To get to where Chief Justice Roberts led the Court in Citizens United v. Federal Election Commissionrequired the dismissal of almost a century of Supreme Court campaign-finance decisions, including two critical rulings handed down by the conservative Rehnquist Court. In 1990 the Court had upheld the ban of corporate and union expenditures in political campaigns. In 2003 the Court ruled that the regulation of corporate and union spending on elections, put in place by the 2002 McCain-Feingold campaign-finance law, was constitutional.

In a strident dissent, Justice John Paul Stevens cited the two Rehnquist Court decisions. “The only relevant thing that has changed since Austin and McConnell is the composition of this court,” Stephens wrote. “Today’s ruling thus strikes at the vitals of stare decisis, the means by which we ensure that the law will not merely change erratically.” Stevens retired three months after the Citizens United ruling.

By the time the case was decided in January 2010, handicapping the high court’s campaign-finance ruling was a simple proposition, in part because Justice Roberts is a U.S. Chamber of Commerce courtesan, giving himself over to one of the groups now spending unprecedented sums to defeat Democrats in Congressional elections.

At a March 10, 2010, Senate Judiciary Committee hearing, George Washington University Law Professor Jeffrey Rosen described the Roberts Court’s relationship with the Chamber, and how quickly it had transformed itself after Roberts was sworn in as chief justice in 2005.

Forty percent of the cases on the court’s docket are business cases, Rosen said:

“Seventy-nine percent of these cases are decided by margins of seven-to-two or better. And the U.S. Chamber of Commerce, which represents the unified interests of American business, has had remarkable success before the Roberts court in the past few years.

“In the 2006 term, the Chamber’s Litigation Center filed briefs in 15 cases and won 13 of them, the highest percentage of victories in the center’s 13-year history.”

The Citizens United decision was a stunning victory for the Chamber. Henceforth, it could use money donated by corporations in election campaigns, without disclosing the donors’ identities. And individuals of enormous wealth could fund “advocacy” campaigns attacking a candidate, without revealing their names.

BILLIONAIRES’ CLUB—When Karl Rove traveled to Texas to meet with a small group of billionaires earlier this year, he was working from an old script.

The Republican establishment has a disposal problem with Republican National Committee Chair Michael Steele. Because he is a black man elected to lead a white party, they can’t get rid of him. Yet Steele is a loose cannon and a lousy manager, which discourages big donors.

Rove had been in this position before, when Christian fundamentalists led by a Dallas lawyer took over the Texas Republican party just as Rove was launching George W. Bush’s first gubernatorial campaign in 1994. Rove responded by directing donors to political action committees not controlled by the party, and to individual candidates. Tom Pauken soon found himself the chairman of a party with diminishing financial resources.

The Citizens United decision allowed Rove to solicit funds for his own shadow party, which could spend unlimited amounts of money without disclosing its sources, while avoiding Michael Steele.

So Rove went prospecting in Texas.

By July, Wayne Slater reported in the Dallas Morning News, 20 of the 29 contributors to Rove’s American Crossroads fund were from Texas, where two-thirds of the group’s initial $4.7 million was raised.

By October 1 the organization that Rove and former RNC Chair Ed Gillespie started in Texas had spent approximately $18 million on eight Senate races.

To be precise, Rove and Gillespie raised (and are raising) money for two organizations: American Crossroads and American Crossroads GPS. One is registered with the IRS as a 527 organization and is required to disclose its donors. The other is a 501(c)(4), which is not required to disclose donors, is permitted to support lobbying, advocacy, and grassroots issue campaigns, but cannot directly support or attack candidates. The 501(c)(4) restrictions explain the proliferation of formulaic ads that attack a candidate’s record, urge viewers to “call Washington,” yet never support a candidate.

HAROLD SIMMONS is not widely known outside of Texas, but the first national campaign he funded is. During the 2004 presidential race, Swift Boat Veterans for Truth produced attack ads impugning Senator John Kerry’s military record in Vietnam, where he served with distinction as an officer. Simmons wrote a $500,000 check to launch the Swift Boaters and ultimately provided them $3 million.

Simmons is better known in Texas, where he is an investor and part owner of the state Legislature. His contributions to Republican legislators and statewide officials finally eroded opposition to a low-level nuclear waste dump in West Texas. Waste Control Specialists, a company Simmons acquired in 1995, now holds the state permit for a low-level nuclear waste disposal facility in Andrews County, Texas.

Simmons also helped bankroll “tort reform,” the legislative campaign to rewrite the rules of civil jurisprudence to make it more difficult for individuals to take corporate defendants to court.

Not a bad hedge, as one of the companies he owns manufactured the lead base that was widely used in house paints. National Lead wisely changed its name to NL, but that didn’t stop the lawsuits. Trial lawyers representing children harmed by lead paint exposure have sued NL. And when Democratic Senator Sheldon Whitehouse was Rhode Island’s attorney general, he sued NL in an attempt to compel the company to pay for some of the public health costs caused by its product.

TREVOR REES-JONES contributed $2.3 million to American Crossroads. Rees-Jones is a Dallas billionaire and CEO of Chief Oil & Gas. He seems to have come from out of nowhere as a big political donor, according to Andrew Wheat of Texans for Public Justice, a Texas campaign finance watchdog group. “In the 2008 cycle, Rees-Jones gave a piker’s $23,500,” Wheat said. “Already this cycle he has given $972,500, preliminarily ranking him as the state’s No. 5 donor.” (This figure doesn’t include his giving to federal campaigns.)

There’s no doubt that Rees-Jones would be better off with a Republican Congress, which would provide a more accommodating regulatory climate. Chief Oil & Gas is heavily invested in the huge natural gas play in the Marcellus Shale, a Western Pennsylvania formation that might hold enough natural gas to supply the entire country for 15 years.

Getting the gas out of the ground is both capital-intensive and environmentally risky. Wells are drilled vertically into the 7,000-foot-deep formation, then horizontally, and highly pressurized water and chemicals are forced into the formation in a process known as hydraulic fracturing, or “fracking.” The huge volumes of contaminated water pumped back to the surface for treatment and disposal are only one of the environmental hazards associated with the process.

For Rees-Jones, $2.3 million is a good business investment. Some of the money has already found its way into the Pennsylvania Senate race, where Republican Pat Toomey, a zealous opponent of all government regulation, faces Democratic Congressman Joe Sestak.

It might not be so good for the environment in Western Pennsylvania. Greenwire reports that Chief Oil & Gas made the “top-five list” of drilling companies that racked up 1,425 oil-and-gas-law violations in the first two and a half years of drilling in the Marcellus Shale.

FRED ROWLING is the rare Dallas billionaire whose photo has never appeared on the front page of his hometown newspaper. The headline over a 2008 business-section profile in the Dallas Morning News describes him as a “mystery billionaire.” Rowling and his father sold their company, Tana Oil and Gas, to Texaco in 1989 for $486 million. He has since acquired the Omni Hotel chain, Gold’s Gym, a chain of discount stores in Mexico, and other companies. Tana Exploration (which Rowling still owns) was one of 30 drilling companies to receive environmental-impact-study waivers from the Interior Department for Gulf of Mexico projects — after BP’s Deepwater Horizon platform exploded in April. Rowling’s TRT Holdings Corporation provided Rove with $1.4 million.

It takes more than three Texas billionaires to buy an election. Rove and Gillespie reached their original $52 million goal in October and the New York Times reported that they are on track to spend $72 million before the election. Reflected in media buys and IRS and Federal Election Commission filings are hundreds of millions of dollars that other individuals and corporations have funneled into the half dozen “non-partisan” shells that will determine the composition of the 112th Congress.

That self-interest informs corporate political contributions is not news. But John Roberts, David Bossie, et al., have delivered us into a new political reality, where corporations possessed of the same First Amendment free-speech rights as individuals spend hundreds of millions on political campaigns while individuals run attack ads from behind the scrim of 501(c)(4) filings with the IRS.

Correction: In the October 1 issue, we wrote, “In Texas the tax collector is the voter registrar.” A reader from Denton, Texas, informs us that that statement does not apply to all Texas counties, and that several counties have tax collectors and election administrators.

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