Mike Lofgren Willing To Say Aloud What Few Dare: The Roberts Court Itself Is Corrupt

Stuck on awful for the next decade?

Our favorite ex-Republican staffer and operative, Mike Lofgren, was busy at Truthout yesterday, making clear what we all know intuitively, namely that "Even in the absence of what Justice Roberts narrowly defines as 'quid pro quo corruption,' a court that consistently decides all relevant cases on behalf of corporate interests-- most recently McCutcheon v. Federal Election Commission-- undermines its own legitimacy as well as the Constitution." The case, Lofgren explains was about how one defines the word "bribe," something we've been looking at for years, since the whole political finance system is rooted in bribery and corruption. He pointed out that "The Roberts court, or five of its nine members, adopted the misanthrope's faux-naïve pose in ruling that private money in politics, far from promoting corruption, causes democracy to thrive because, money being speech, the more speech, the freer the politics. Anatole France mocked this kind of legal casuistry by saying 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.'"

Roberts knows he was appointed to be a Supreme Court justice for one reason: to decide relevant cases on behalf of corporate interests. This explains why he made a political move to salvage the Affordable Care Act: The case was a matter of partisan politics before the court. Business interests were roughly divided on the law-- some disliked its mandates and provisions that might drive up their costs, while others saw its potential for allowing them to dump insured employees into pools, or, alternatively to benefit from tax subsidies. Still others may have seen it as a license to mint money. ACA was a costly and convoluted way to insure more people, but Republican hacks saw only one aspect: It was Obama's initiative, so it must be opposed. Roberts saw it as a political squabble involving the other two branches, but on which there was no unified business position. It was a law whose philosophy had a Republican pedigree-- the Heritage Foundation had proposed something like it more than a decade before. If a Republican were president, he might have proposed a similar bill; after all, the president who nominated Roberts engineered the Medicare Prescription Drug Act.

Roberts perceived the deeper dynamic beneath the ideological posturing over ACA, and that is why he had to be the deciding vote of a divided court to save the act. Overturning it would cause millions to question the court's legitimacy on a matter that was not crucial to business interests. Best to save one's powder for more relevant fights. That said, the four dissenting votes also had to vote as they did to render the decision subjectively moot in the minds of Republican jihadists, who would continue to fight the act tooth and nail. As it was, Roberts threw a valuable bone to the Republicans by vitiating the Medicaid mandate to the states. This made it harder to implement the law and permitted Republican governors and legislatures to work all manner of mischief.

McCutcheon was a more relevant fight, and here we see Roberts the avatar of corporations rather than Roberts the tactician. Viewing other justices' decisions through this lens also tightens the focus on an otherwise blurry image. Observers wondered why, during oral arguments in the Sebelius v. Hobby Lobby case, Scalia’s questions implied he was taking a position on religious views in the workplace opposite to the one he had taken in the 1990 Employment Division v. Smith case. In that case, Scalia ruled against employees whose firing for smoking peyote caused them to sue based on alleged violation of their first amendment right to free exercise of religion. But Scalia was perfectly consistent: In the Smith case, and as he appears likely to do in the Hobby Lobby case, Scalia upholds the rights of employers.(2) Neither one is a case about religion per se; they are cases about the superior prerogatives of employers over employees. In like manner, McCutcheon and Citizens United are not cases about campaign finance laws, nor are they, despite the artful smokescreen about free speech on the part of the court's majority, cases about free speech and whether money constitutes speech. They are cases about upholding the superior political privileges of rich interests in society as opposed to poorer ones.

We now have an algorithm to crack the Enigma Code of the Supreme Court. Once there are five members of the court who accept as self-evidently valid the 19th century concept of "freedom of contract," other issues become subsidiary. This framework explains hundreds of cases before the court and clarifies the seeming anomalies like ACA. It explains the court's position in Vance v. Ball State, which made it more difficult to sue employers for harassment, and Ledbetter v. Goodyear Tire & Rubber Co., which barred remedy for pay discrimination (even Congress subsequently saw fit to redress the bias of the court’s decision). In Wal-Mart v. Dukes, the court rejected a class-action suit of women denied raises and promotions. The Roberts court also took the side of corporations against consumers in Mutual Pharmaceutical Company v. Bartlett and AT&T Mobility v. Concepcion. The Roberts Court declared unconstitutional a 1988 law that subjected corporate officers to fraud charges if they could be shown to have deprived clients of honest services.

…Sometimes, like Humbert Wolf's British journalist, judges can be corrupted even in the absence of what Justice Roberts narrowly defines as "quid pro quo corruption." Fallows recommends that Congress enact a fixed term of office for Supreme Court justices. I think that is a good idea, although not just to obviate senescence on the court. It might also wake up citizens to the whole sorry con game if they were forced to contemplate retired honorable justices giving speeches at $500,000 a pop to corporations eager for enlightenment on the finer points of judicial interpretation.

Mark Karlin, also writing at Truthout yesterday, interviewed Nomi Prins, a former Goldman Sachs executive who authored All the Presidents' Bankers: The Hidden Alliances That Drive American Power. Prins' point, in brief, is "that US domestic and foreign policy is largely driven by the interests of economic hegemony and consolidated wealth." Yeah… the whole system is rigged. I know you're not surprised but Prins is a rigorously intellectual insider writing about the symbiotic relationship between the men who run the White House and those who run Wall Street-- over the course of a century. "[F]or the past century," he explained, "mutually reinforcing relationships amongst the most powerful men in the past century were drivers of American domestic, national and foreign policy than just the government was, no matter who the president, or what the party in the Oval. I found that every president had connections of various degrees of closeness with the most influential bankers during his term. I knew these associations existed throughout the decades, but I was surprised to discover just how prevalent they were." What becomes perfectly clear is that these are the people the Roberts Court is working for-- these people and only these people.

Q: Reading your new book, I get the feeling that the privileged few in the private sector who control most of America's money, de facto, don't really give a whit about democracy. What they are focused on is free markets for the plutocracy like a laser. Is that your perspective?

A: The notion of free markets, mechanisms where buyers and sellers can meet to exchange securities or various kinds of goods, in which each participant has access to the same information, is a fallacy.  Transparency in trading across global financial markets is a fallacy. Not only are markets rigged by, and for, the biggest players, so is the entire political-financial system.

The connection between democracy and free markets is interesting though. Democracy is predicated on the idea that every vote counts equally, and in the utopian perspective, the government adopts policies that benefit or adhere to the majority of those votes. In fact, it's the minority of elite families and private individuals that exercise the most control over America's policies and actions.

  The myth of a free market is that every trader or participant is equal, when in fact the biggest players with access to the most information and technology are the ones that have a disproportionate advantage over the smaller players. What we have is a plutocracy of government and markets. The privileged few don't care, or need to care, about democracy any more than they would ever want to have truly "free" markets, though what they do want are markets liberated from as many regulations as possible. In practice, that leads to huge inherent risk.

…Q: How did Bill Clinton, who campaigned on a platform of lifting up the middle class, become an acolyte of Robert Rubin?

A: Every Democratic presidential hopeful campaigns on a platform to help the greater population, or more recently the middle class. Woodrow Wilson campaigned against the concentrated power of Wall Street, though never named names. Yet, it was Jack Morgan he called to the White House before WWI to talk war-financing strategy, and it was Paul Warburg, one of the Federal Reserve architects, that Wilson appointed as one of the Fed's first board members. FDR campaigned against the bankers but worked with them to restructure the banking system to sustain capitalism and supported their open international trade desires because it suited his own. LBJ talked of the Great Society once he was in office, but traded favors behind the scenes with the big bankers to get his policies passed and helped them in return.

So Clinton had historical company. His treasury secretary, Robert Rubin, was a link to substantive funding and the new Eastern establishment elite. Clinton correctly calculated that he needed money and Wall Street legitimacy to get elected. Without Rubin and his friends presenting Clinton through Wall Street, like a debutante, to score funding and support, all the middle-class promises in the world might not have gotten him elected.

Separately, and this is where the like-minded alliance holds, Clinton truly believed in everything Rubin believed in. As Clinton wrote in his memoirs, he got "early invaluable support" from Goldman Sachs executive Ken Brody, who introduced him to various "high-powered business people," including Rubin, whose "tightly reasoned arguments for a new economic policy," Clinton later wrote, "made a lasting impression on me." It's no accident that the swipes at Glass Steagall that George H.W. Bush and his team set in motion, became reality under Clinton. The wheels were in motion already, and Clinton and Rubin sealed the deal. I found records in the Clinton Library of full-scale jubilation in the White House at the way Rubin navigated the repeal of Glass Steagall that are documented in my book. Rubin used the same exact argument and words as Bush's treasury secretary, Nicholas Brady, to fight that deregulation battle-- and they hinged on the need for America to "remain competitive", and if its banks couldn't do what European banks could in mixing financial services, then it would be a blight on the nation as a whole. Parties don't' matter. Power alliances do.

It's also no accident that Hillary Clinton has received hundreds of thousands of dollars to speak at Goldman Sachs gatherings and let them know that Wall Street was treated too harshly in the wake of the 2008 crisis.

Then you had Barack Obama campaigning on a platform of change and throwing the K Street lobbyists and bankers out of the White House. Instead, he gives them the keys to 1600 Pennsylvania Avenue. Exactly, how does a transformation like that happen?

After Washington, Clinton's treasury secretary Robert Rubin went to make millions as a vice chairman at Citigroup. Obama's treasury secretary, Tim Geithner (who had worked as assistant treasury secretary to Rubin under Clinton), went to work for a private equity fund, an enterprise whose now-deceased founder was related to Paul Warburg, one of the architects of the Federal Reserve System and donor to Woodrow Wilson's campaigns, a century ago.

Obama's response in the aftermath of this crisis has been one of coddling the big banks as they've grown bigger. His "sweeping reform," the 2010 Dodd-Frank Act, is a joke. It does nothing to constrain the power of the financial elite, because the true political-financial alliance that has allowed the big banks to become bigger, is more powerful than the actions of Congress, even if Congress had been set on doing something real, which it hasn't been. Now, America's largest banks enjoy extensive government backing, not just for deposits, but for their bad bets. The Federal Reserve is carrying a more than $4 trillion book of debt that was never raised to help the population, while it maintains near zero percent interest rates to provide the big banks cheap money.

A transformation certainly doesn't begin with a president who populates his administration with the same people whose philosophy of less rules for their friends brought us to our current situation.  It won't change with Hillary Clinton for the same reasons. It wouldn't' change with Jeb Bush. Honestly, I think we're "stuck on awful" for the next decade.

Yes, stuck on awful