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- AS THE FIRST EDITION OF THIS BOOK WAS published, Trump had just been elected. In the postscript I wrote back then, I expressed the hope that he might be somewhat independent, possibly working with both sides, possibly even disruptive in some good ways; I had hopes he might be honest and fearless. Boy, was I wrong. We have seen from the Trump administration stunning levels of corruption, flagrant and constant lying, and low appeals to racism and hatred. Our country stands for lasting principles, but is tarnished by Trump as a messenger of our own principles. Our ambassadors are ashamed to challenge misbehavior in foreign governments, with such flagrant misbehavior in our own. But even when—in the fullness of time—we are rid of Trump and his whole comic opera of misrule, we will still face the problem described in this book: the insidious creep of special-interest influence throughout our government. In fact, inchoate public frustration with the government’s capture by those interests may well have led to Trump. Not every corporation or industry is involved in this scheme. Many want no part of it. But the big influencers who are working to quietly capture American government, particularly those in highly regulated or polluting industries, have been disturbingly successful. This insidious power crept in on many separate fronts: • the steady, years-long effort by Republican appointees on the Supreme Court to give corporate interests a dominating role in our politics;
- • the legislative lobbying dominance of corporate and industry interests, who outgun all other comers in Congress by massive multiples of spending;
- • the evil of unlimited and dark money now dominating our elections (thanks to the Citizens United decision by five Republican appointees on the Court);
- • the overwhelming advantage in administrative agencies of the regulated industry, leading to the well-researched (and oft-experienced) problem of “agency capture” when an industry dominates its regulatory agency;
- • the growth of a complex web of industry-funded, false-front organizations who inject deliberate streams of falsehood and anti-science propaganda into popular debate;
- • the slow strangulation of the civil jury, to spare big influencers accustomed to dominance in other branches of government the indignity of equal treatment in a courtroom;
Introduction IN THE SENATE, I SEE EVERY DAY how power works in the political sphere. I see who’s got it. I see who uses it. I see how they use it. I see the devices by which that power is applied. I see the schemes used to obscure who’s pulling the strings. I see the smokescreens put up to distract people so they don’t notice the string-pulling. This is my world; it is the ecosystem I inhabit as a United States senator. The legendary, Pulitzer Prize–winning author William S. White observed, “A senator of the United States is an ambulant converging point for pressures and counter-pressures of high, medium and low purposes.” What I see all around me these days is immense pressure deployed by the corporate sector in our government. Some of this corporate power is deployed in traditional ways. For as long as there has been government, there have been efforts by powerful forces to bend government to their private advantage, and to evade or prevent government oversight. For as long as there have been legislatures, there have been efforts to acquire influence over them. For as long as there has been regulation of industries, there have been efforts to control the regulators and to condition them to the interests of the industries they are designed to regulate. But some of what I see is new. I’ve had a close-up look at government—as a prosecutor, as a regulator, as a government staffer, as a reformer, as a candidate, and as an elected official. Never in my life have I seen such influence in our elections from corporations and their managers and billionaire owners. Their presence in American elections has exploded, indeed become dominant, as the campaign finance world has become virtually lawless. Never in my life have I seen such a complex web of front groups sowing deliberate deceit to create public confusion about issues that should be clear. The corporate propaganda machinery is of unprecedented size and sophistication. Never in my life have I seen our third branch of government, our courts, the place in our governmental system that is supposed to be most immune from politics, under such political sway. The track record of the Supreme Court in particular shows patterns that are completely inconsistent with disinterested neutrality. It’s always been tough to go up against the big guys. But for most of my life I felt we had a fighting chance. American politics has deep traditions of honor. There were always pockets of government that could be counted on to do the right thing. And there was such wisdom and safety in our American system of separated powers that corrupting influences could never take over completely. As a lawyer, and as a student of our Constitution, I believed that our American system would always protect us—maybe not right away, maybe not every time, but ultimately and for sure. I’m no longer so sure. Huge segments of the American public think things have gone badly wrong. Indeed, nearly three of every four Americans—71 percent—reported in a February 2016 poll that they were “dissatisfied with the way things are going in the United States at this time.” We see these numbers in action as voters across the political spectrum offer enthusiastic support to candidates pledging to change the status quo. How could this be? We’ve persevered through a revolutionary war, a civil war, and two world wars. We’ve endured massive expansions and great depressions. We’ve overturned slavery, brought women well toward full equality, pushed racism back, and recognized gay relationships. We invented automobiles, airplanes, telephones, TV, the atom bomb, and the Internet. Ours has been a tumultuous 240 years. What now, after all that tumult, has gone wrong? Abraham Lincoln reminded us at Gettysburg, over a field that covered the decaying remains of thousands of soldiers, both Union and Confederate, that it was our American destiny, and the prize of our Civil War sacrifice, that “government of the people, by the people, and for the people shall not perish from this earth.” The thing that has changed the most in our government, and the thing that to me best explains what has gone wrong, is that our politics is no longer “of the people, by the people, and for the people.” Corporations of vast wealth and remorseless staying power have moved into our politics, to seize for themselves advantages that can be seized only by control over government. Organizations of mysterious identity have moved into our politics, as screens for the anonymous power and “dark money” behind them. Political campaigns are now run by new and alien organizations, super PACs and 501(c)(4)s, bizarre creatures unknown to our politics until recently. When I speak of corporate power in politics, let me be very clear: I do not mean just the activities of the incorporated entities themselves. The billionaire owners of corporations are often actively engaged in battle to expand the influence of the corporations that give them their power and their wealth. Front groups and lobbying groups are often the ground troops when corporate powers don’t want to get their own hands dirty or when they want to institutionalize their influence. So-called philanthropic foundations are often the proxies for billionaire families who want influence and who launch these tools to professionalize their influence-seeking. I count them all as faces of corporate power—just as they do themselves. The internal coordination behind the scenes between the politically active corporate entities, the billionaire funders, the right-wing “philanthropies,” the front groups, and the lobbying organizations is constant. The structure of this enterprise, with common funders, interlocking directorates, and overlapping staff, is emerging as a result of academic and investigative studies. From my perch in the Senate, I see it all as one coordinated beast. That is how it behaves, and that is how I’m going to treat it in this book. This apparatus may seem like a very complicated and unwieldy way for corporations to exert influence, but it allows them to give the public the old razzle-dazzle, running intricate plays with what appear to be many independent voices. It’s smart strategy. These forces are everywhere, and they are dominant in every area where their influence on government can be brought to bear. They are right now, as a practical matter, our unseen ruling class. When you are running for office, they can quietly back you—or your opponent—with literally unlimited funds, depending on how comfortable they are with how you’ll vote. (The cudgel of secret spending need not even be swung to have its desired effect; merely brandishing it can be enough to get the attention, and obedience, of a politician.) Once you’re elected and in office, corporate influence comes in the form of corporate lobbying—the behemoth on the legislative stage, drowning out all other lobbying competition by a spending ratio of more than thirty to one.4 As a bill moves through Congress, corporate lobbyists exploit procedural opportunities to accomplish the industry’s purposes out of view of the public. Once a bill becomes law, relentless industry pressure is brought to bear on the agencies charged with enforcement: appointment of industry-friendly administrators; visible industry “caretaking” of friendly administrators when they depart their posts (and visible “freezes” on those who weren’t so friendly); heavy lawyering of the rulemaking and enforcement processes, often as simple brute pressure to cause delay and cost; and sometimes direct kickbacks. All these avenues give special interests undue influence over administrative agencies, to the point of outright capture of the agency. When there is a legal challenge to corporate behavior, or a legal challenge to the way a law is administered, having business-friendly courts to hear the case becomes important. Here corporate influence in the selection of judges is brought to bear, business-friendly “training” for judges at luxurious resorts is offered, and corporate-funded entities that are not traditional litigants appear in court, sometimes in flocks, to amplify the corporate message. The Supreme Court can do more than tilt the balance in business-related cases: the Court can change the very ground rules of democracy in favor of corporate interests. And corporate forces are hard at work using their power to fix the judicial system to seize more power. Civil juries, the Constitution’s designated check on outsized power in the private sphere, have had their place in government shrunk to a vestige of their intended role, leaving corporate forces free to wheel and deal with the established, repeat players in government who are most amenable to their influence. Meanwhile, a vast corporate enterprise is busy constructing and marketing a pro-corporate “alternate reality”: climate change is an illusion; tobacco is not really that bad for you; lead paint only hurts poor children with negligent mothers; the ozone hole isn’t being caused by chemicals; various products’ association with cancer is unproven; pollution controls will cost way too much and hurt the economy; consumers should be free not to live in a “nanny state.” Corporations have become less willing to say these things themselves, so over the years they have outsourced the crafting and selling of this alternate reality to an array of dozens of front groups with innocent-seeming, respectable-sounding names. And corporate forces have acquired influence in an increasingly compliant and even corporate-owned media. What better way to propagandize the American public than through the “news”? It all adds up to massive tentacles of corporate power—particularly emanating from a few highly regulated sectors, including finance and fossil fuels—that are usually invisible or obscured but which are quietly and steadily having their way with government. Small wonder people are angry about a nonresponsive democracy. Contrary to the popular sentiment that government isn’t working anymore, government is working fine; it’s just working for the corporations. Congress today is working great at helping polluters; it’s working great at protecting hedge fund billionaires’ low tax rates; it’s working great at helping corporations offshore jobs, at letting chemicals and genetically modified stuff into your food, at creating tax and safety loopholes for industry. Congress is also working great at ignoring corporate misbehavior—until after a crisis has hurt or killed a lot of people. Even then, Congress has worked great at having taxpayers bail out the industry that caused the harm. And worst of all, government is now working great, in a vicious cycle, to change its own ground rules and lock in the control over government by big special-influence operators. People can feel like they are in a car that won’t respond to them, that the car is dangerously out of control, that the car is broken. But the problem isn’t the car; the problem is who’s now driving it. Regular people are no longer in the driver’s seat of American democracy. A corporation is not an inherently bad thing. In proper circumstances and within proper bounds, the corporate form is an immensely valuable proposition. But the economic ability to amass money can spawn a political desire to amass power. And at a certain level of political power, corporate forces can upshift into political overdrive and use their power to change the political system itself. Beyond just improving outcomes for their industry from the political system, they can make changes to the political system itself that lock in lasting advantages for them and protect their dominance. That overdrive is the most worrisome use of power. That’s where I believe we are now, and why I’m writing this book. Today there is virtually no element of the political landscape into which corporate influence has not intruded, and it is usually the strongest political force arrayed in any part of that landscape. You may not see it, because it is bad strategy for the purveyors of corporate influence to herald their victories; they are better off quietly pocketing their winnings than bragging about them, and they’d rather you not know how effectively they have rigged the game. But, visibly or not, our government has been captured. The “gradual and silent encroachments” that James Madison warned of have come in a corporate guise that Madison and his compatriots did not foresee and were not able to preempt.5 The big corporate interests now in control would like you to give up on government. The better solution is not to give up on the American government that generations of Americans fought, bled, and died to leave to us. The better solution is to take it back and put it to work for us. It will be a battle. Even if you do not now see a clean path to victory, remember the admonition of Rabbi Tarfon: “It may not be up to us to complete the work, but neither are we free to desist from it.” As citizens, this must be our work.
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