Wednesday, Oct. 29, 2014 | 2 a.m.
Justice Anthony Kennedy doesn’t strike me as the kind of guy I’d want to share a beer and a brat with, or be stuck next to on a long flight. But I would like for the most influential swing voter on the Supreme Court to step away from his legal aerie and wade through some of the muck that he and four fellow justices have given us with the 2014 campaign.
How did we lose our democracy? Slowly at first, and then all at once. This fall, voters are more disgusted, more bored and more cynical about the midterm elections than at any time in at least two decades.
It’s so bad that Sen. Mitch McConnell is paying people to show up at his rallies and pretend to be excited. There should be plenty of applicants; just 29 percent of the electorate said they were “enthusiastic” about voting this year.
What’s not to hate? Start with the politicians on the ballot: a surfeit of dim-bulb partisans pledged to further gridlock. (See McConnell, future Senate majority leader.) But, beyond disdain for this singular crop of do-nothings, the revulsion is generated by a sense that average people have lost control of one of the last things that citizens should be able to control — the election itself.
You can trace the Great Breach to Kennedy’s words in the 2010 Citizens United case, which gave wealthy, secret donors unlimited power to manipulate American elections. The decision legalized large-scale bribery — OK, influence buying — and ensured that we would never know exactly who was purchasing certain politicians.
Kennedy famously predicted the opposite. He wrote, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That’s the money quote — one of the great wish-projections in court history. But Kennedy also envisioned a new day, whereby there would be real-time disclosure of the big financial forces he unleashed across the land.
In his make-believe, post-Citizens United world, voters “can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.” Ah, transparency.
Again, just the opposite has happened. The big money headed for the shadows. As my colleague Nicholas Confessore documented this month, more than half the ads aired by outside groups during this campaign have come from secret donors. Oligarchs hiding behind front groups — Citizens for Fluffy Pillows — are pulling the levers of the 2014 campaign.
You can argue money doesn’t always buy results, and cite the extraordinary failure of Karl Rove to get any return on the investor millions he threw to the wind in 2012. But you can’t argue with the corrosive and dispiriting effect on the rest of us, of campaigns controlled by the rich, the secret, the few.
This year, the Koch brothers and their extensions have operations in at least 35 states and will spend somewhere north of $120 million to ensure Congress will do their bidding. Spending by outside groups has gone to $1 billion in 2012 from $52 million in 2000.
And it gets worse. At the same time this court has handed over elections to people who already have enormous power, they’ve given approval to efforts to keep the powerless from voting. In Texas, Republicans have passed a selective voter ID bill that could keep upward of 600,000 citizens — students, Native Americans in federally recognized tribes, the elderly — from having a say in this election.
What’s the big deal? Well, you can vote in Texas with a concealed handgun ID but not one from a four-year college. The new voter suppression measure, allowed to go ahead in an unsigned order by the court earlier this month, “is a purposefully discriminating law,” Justice Ruth Bader Ginsburg wrote in dissent, “one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”
With the 2010 case, the court handed control of elections over to dark money interests who answer to nobody. And in the Texas case, the court has ensured it will be more difficult for voters without money or influence to use the one tool they have.
This year’s campaign has been called the Seinfeld Election, but control of Congress is never about nothing. There is likely to be a Supreme Court justice appointment in the near future. The fate of a minimum wage hike, health care, student loans, taking action on climate change, or going to war — all could hinge on whether a select group of outsiders can buy the Congress they want.
Still, for all the wrongheaded decisions made by this court, individual voters can rage against the machine and make a difference — and will, in small states in particular.
I yield to the freewheeling Nuns on the Bus, particularly Sister Simone Campbell. “In the face of such an avalanche of money, the temptation for some is to become cynical and disengage from politics in general, and voting in particular,” she wrote in the Charlotte Observer.
But let’s not fool ourselves. We Americans have long boasted of having free and fair elections. Thanks to this Supreme Court, they are neither.
Timothy Egan is a columnist for The New York Times.