Follow the Dark Money

If there is a chokepoint in democracy, a vulnerability in the experiment in majority rule, count on the clever engineers of the Koch network to find and exploit it. In this case, it is the two “centrist” Democratic “mavericks” who espouse fundamental change to the current partisan acrimony over a sensible, necessary, straightforward rules change that will allow their 51 votes to rule on policy. The party they advocate cooperating with is the one that has been forcing 51-49 outcomes on their opponents as often as humanly possible when they had control of the Senate.

So the conservative U.S. Chamber of Commerce may have given Manchin and Synema a lot of money. Whose business is that? The Supreme Court said wealthy donors that make political contributions in a certain way are engaged in protected First Amendment speech, not campaign “speech”, which would, theoretically be subject to regulation, so it is fine that the wealthy donors keep their names out of it. Dark money, Mitch McConnell’s fondest wet dream. Three Supreme Court cases make the irrefutable case that this is the case, that the status quo Manchin and Synema refuse to challenge is the law of the land. Unless, by some chance, the law of the land gets changed by something like the John Lewis Voting Rights Act or the For the People Act.

The 1965 Voting Rights Act, been there, done that. It solved the problem, now it is time to move on from enforcing it, said John Roberts in 2013. When John Roberts ruled that because the US now had a mulatto president it proved that racism was no longer a factor in American politics, and, he claimed, the data Congress relied on in almost unanimously reauthorizing the landmark 1965 Voting Rights Act was old, from 1965, a time when there was racism in the USA, it was no longer necessary to strictly enforce the Voting Rights Act.

Under this wrongly decided, unappealable ruling formerly racist states no longer had to clear new voting laws before they could be put into effect, as formerly required under the Voting Rights Act, as the 98-0 Senate voted to continue requiring. His 5-4 majority overturned the two lower court cases where Shelby County, Alabama, a carefully chosen plaintiff, had lost in federal court.

Immediately after this decision came down, literally days after Roberts used his cockeyed rationale (the dissent pointed out the hundreds of hours of debate in both houses, and the thousands of pages of pertinent contemporary voting data produced before the Senate voted 98-0 to extend the law) to craft the cynical 5-4 Shelby County v. Holder ruling (and Shelby County itself had recently been found guilty of some race-based voting shenanigans) cutting enforcement out of the Voting Rights Act, the first few of almost two hundred new state voter suppression laws were enacted by a number of states, led by the great state of Texas.

This desired result was but one success of the anti-majoritarian project of the forces that founded the John Birch Society and then efficiently engineered their advocacy into a more and more effective political action network. Appoint federal judges from partisan lists maintained by the Federalist Society (a business networking fraternity for committed right-wing law students, lawyers and judges) and then have other members of this society bring cases designed to be upheld by a now 6-3 Federalist Society Supreme Court. They’ve done this very well over the years, to sometimes horrific effect, and the plan is to soon end a working class woman’s ability to make the painful decision to end an unwanted pregnancy.

To be sure, Charles Koch and his buddies don’t care about the lives of the unborn, fetuses, whatever you want to call them. They simply recognize a great opportunity to galvanize the support of millions of fervent GOP voting Christians who want this done. This large block of conservative Christians will vote for virtually anyone who announces a firm commitment to end the state sanctioned mass murder of the unborn.

A case to end partisan gerrymandering, Rucho v Common Cause (2019) wound up upholding the right of the right-wing network to continue conducting its successful Operation Red Map (the plan to take over the majority of the state governments) by drawing districts however they please to maximize their power in the state house and the House of Representatives. The Roberts court declared that partisan gerrymandering, because it is a partisan political issue, was something the Supreme Court was forbidden to rule on, due to the famous Political Question Doctrine [1]. The ruling meant partisan gerrymandering, the process that brought us Marjorie Taylor Jew-Anon, Matt Gaetz, Louie Gohmert and a host of firebrand GOP luminaries (they run in crazily convoluted districts drawn to be 70% Republican), cannot be challenged in federal court. Done and done.

Then there is arguably the most important and destructive Supreme Court case in recent history, the 2010 5-4 Citizens United ruling that removed limits on campaign spending by certain legally created non-profit entities and corporate persons. The questions teed up for Scalia, Thomas, Roberts, Alito and Kennedy (who wrote for the 5-4 majority, and for whom Boof Kavanaugh once clerked) were four:


1) Did the Supreme Court’s decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?

2) Do the BCRA’s disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected “political speech” and not subject to regulation as “campaign speech”?

3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?

4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?


If this sounds like “how many angels can dance on the head of a pin?” you are not wrong. Can we distinguish between protected “political speech” and that regulated as “campaign speech”? Does it not rest largely on where we put the “quotation” marks?

So, in the meantime, and without new laws to prevent it (such as the For the People Act, HR1, the bill Manchin has already committed to voting against) the law of the land is that

1) all state laws to restrict voting, no matter how discriminatory they may smell, are presumed not to be discriminatory unless successfully challenged in court, surviving all appeals;

2) the political party that controls the state legislature (see Operation Red Map, they have 30 of 50 states now) draws the gerrymandered districts most advantageous to increasing their power and those gerrymanders cannot be challenged in court, and;

3) the flow of dark money allowed by Citizens United (with the Court’s assurance that democracy would be protected because all these dark money sources would be disclosed to the public) may not be challenged, as it is obviously protected “political speech” and clearly not “campaign speech”.

Manchin refused to say which parts of the For the People Act are repugnant to his sensibilities. Given the similarities between his recent incoherent op-ed and the equally sophisticated position of Americans for Prosperity, a Koch operation, one suspects there may be financial and career incentives involved for Joe Fucking Manchin.

How much dark money does the conservative, indispensable Manchin get from the secret liberty caucus? Synema? It’s nobody’s right to know that, ask John Roberts.

For now, it is enough to know this, Manchin will not vote with the rest of the Democrats to change the law to protect voting rights from the fraudulent fraud-based voter suppression laws popping up in more and more heavily gerrymandered, dark-money funded state legislatures. Synema is now free to vote however she likes, though she’s a rock on the sanctity of the filibuster rule, preferring the more reasonable “change in behavior” that would make the Senate as collegial as it was when Charles Sumner was almost caned to death on the floor of the Senate in those bipartisan days leading up to the glorious Civil War the brave, outnumbered insurrectionists never lost.

History, yawn.

[1] You can read about it here, the recent history of the Political Question Doctrine.

A condensed explanation, from the link above:

Writing for the Court, Chief Justice Roberts, while deploring the practice of partisan gerrymandering, concluded that no judicially manageable standards existed that could be applied by the federal courts.  Justice Kagan, writing for four dissenters argued that the lower courts (two district courts, one in North Carolina considered a Republican gerrymander and one in Maryland considering a Democratic gerrymander) have done an admirable job separating the typical run-of-the-mill partisan gerrymander (which Kagan and the dissenters suggest would be constitutional) from the extreme gerrymanders (using new technological tools that allow parties to maximize their political advantage) that the dissenters contend violate both the Equal Protection Clause and the First Amendment.  Rucho leaves modern politics in a mess.  The beneficiaries of gerrymandering have zero incentive to adopt more neutral redistricting approaches and Congress is too polarized to act.

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