It’s Right Before Our Very Eyes
Learn About Our Invisible, Parallel Government that’s “Calling the Shots”
We are in 2024, an election year, a year I call “the Year of the Precipice” for our democracy. To better equip Americans to exercise their civic duty this year, we have begun a series in Democraticus examining important ways of thinking and belief systems that can have a major impact on our democracy’s future.
Our Journey So Far
While critical thinking is a key skill for a democracy’s citizens to have, there are many obstacles and hurdles we face in order to think clearly and accurately in the public square. Techniques used frequently by leaders on the public stage such as logical fallacies and requiring proof of non-existence are meant to confuse our thinking. Our lack of knowledge of our nation’s history can make is easy for our leaders to create “thinking traps” such as promotion of myths, coming to wrong conclusions and accepting false narratives.
But, there is another critical thinking skill that without it, we become even larger targets of manipulation by those who are in power or trying to obtain it.
What is it?
Hiding in Plain Sight- Recognizing Major Change
Our critical thinking is often impaired by our lack of knowledge about and understanding of recent events. These events are mostly “right before our very eyes”. So much so, that although they represent significant change for us, they often can go unnoticed by many, if not most, Americans. This contributes significantly to our inability in real time to recognize major changes in the civic square that are affecting us in a major way and react to them in a civically responsible manner.
These change events often involve legal and governmental decisions, as well as practices that represent major historical changes, many of which have major impact on the civic arena. Unless we are equipped to recognize them, they can have major impact on our civic literacy without our understanding how or why. Many of these major change events that are going on around us today are high profile such as Supreme Court decisions about curbing abortion rights. But, often times these major change events are lower in profile, sometimes barely noticed by the general public. Yet, make no mistake, their impact on Americans’ daily lives is every bit as enormous.
Without a good sense of awareness and discernment, these events can be easy to miss since there are so many other things in today’s world competing for our attention. However, this is a skill we need to develop to have strong civic literacy and civic awareness. This is best illustrated by examining some examples of more recent change events in our public square that have had profound impacts on our nation, its political processes, and its governance.
The Advent and Proliferation of “Dark Money”
When the SCOTUS ruled 5-4 in in its 2010 controversial Citizens United v. Federal Election Commission (FEC) decision that corporations and special interest groups have First Amendment rights as citizens do, this “…reversed century-old campaign finance restrictions and enabled corporations and outside groups to spend unlimited funds on our elections.”[1] Citizens United, a conservative nonprofit group, challenged campaign finance rules after the FEC halted its promotion and airing of a film criticizing then presidential candidate Hillary Clinton “too close to the presidential primaries.”[2]
While some predicted it would allow business corporations to unduly influence elections by their donations to campaigns, the real impact has been felt even more from the floodgates of cash from billionaires that has rolled into fund our elections. Political influence has been completely tilted their way. The Brennan Center has followed this change noting that in only five years after the Citizens United decision that:
“…while spending by this “wealthy club” has exploded, we have neither the increased diversity of voices that the Citizens United majority (i.e., of the SCOTUS) imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super PACs spent almost as much as all 4.75 million small donors combined.”[3]
The Rise of the Billionaire Political Cabal
In other words, influence by small campaign donors had diminished in only five years, replaced by mega-donations by a small group of the uber-wealthy billionaire class who began to create major change in our political system. The “plot thickens” because, as these uber-rich donors have taken over campaign funding, the source of their funds has become more and more obscure. Jane Mayer, in her excellent book Dark Money, has taken an in-depth look at how this billionaire donor class has pursued their long-held agenda by now being able to unleash their wealth to eliminate any governmental regulations that decreases their corporations’ profitability. The Citizens United decision has given them virtual impunity to use their money to exercise vast influence over U.S. elections and the government. These super-wealthy, some of the names of which some readers will probably recognize, include families such as the Kochs, the DeVos, and the Olin families.
Dark Money Impacts all Americans
What many may not realize is how the Citizens United decision has allowed this small but very wealthy group to infuse their libertarian agenda into conservative politics (via the Republican Party). And ultimately, they not only unduly influence our elections, but perhaps even more importantly, also direct how the country is governed (as example, this became apparent during the fight over Obamacare).[4] And this has all been done with what has been christened as “dark money” due to the extreme difficulty involved in tracing it to is donors. All this was enabled by the Supreme Court’s Citizens’ United Decision. How many Americans have noticed its impact?
Our democratic norms, such as unfettered access to voting by Americans, are hugely influenced by this dark money. In 2021 dark money from these billionaire donors coming through conservative think tanks like the Heritage Foundation had much to do with writing of “voter integrity” laws being passed by Republican controlled state legislatures. Ostensibly to deal with “voter fraud” (which was almost non-existent) alleged during the 2020 election, these laws were really being enacted to make it more difficult to vote aimed at more urban (and usually Democratic) areas. This has been funded by these mega-wealthy plutocrats using conservative “think tanks” and tools like “donor advised funds” which make it virtually impossible to find out who is donating these huge sums of cash. As Mayer explains, “Unlike other forms of paid political influence, much of this money is never revealed. Gifts to nonprofit groups could now be concealed from the public.”[5]
Americans Are Now Controlled by a Mostly Invisible Political System
This has in turn created a “parallel political system” that influences policy outside the political parties.[6] These wealthy donors, according to Tomasky, are “…interested in a handful of issues: less regulation (especially polluters), reduced entitlement spending, lower social-welfare spending, and anything that will help cripple unions.”[7] Another topic that should be added to Tomasky’s list is elections and voting. Further, while this parallel political system can operate outside the political parties, as Tomasky describes: “…they (i.e., the Republican Party) hold the line on these issues, and the more aggressively and creatively they pursue them, the more access to Koch money- which, thanks to Citizens United is unlimited-they will have.”[8] Senate Minority Leader Mitch McConnell has admitted how this current campaign funding torrent gives the Republicans an advantage saying “…spending edge is the only thing that gives a Republican a chance to compete.”[9]
Mayer points out that “…large majorities of the American public- both Republican and Democrats- favored strict spending limits.”[10] Yet, any efforts to reform campaign finance and repair the damage caused by Citizens United are typically opposed by the conservative right under the battle cry of “freedom of speech”.[11] Perhaps the most important change Americans may not have noticed is summed up in Mayer’s commentary about this “dark money”:
“Another consequence was that the Citizens United decision shifted the balance of power from parties built on broad consensus to individuals who were wealthy and zealous enough to spend millions of dollars from their own funds. By definition, this empowered a tiny, atypical minority of the population.”[12] (emphasis mine)
In other words, minority rule in American government has been institutionalized by “dark money”.
Dark Money Has Created a New Iteration of American Oligarchs
If one knows anything about the Southern oligarchy’s outsized influence over the federal government in the years leading up to the Civil War, one might recognize with Citizens United that something similarly significant has happened here today. In a democracy, where majority rule is intended to prevail, the minority is now, to a large extent, in charge. And it happened right in front of the American people. Improved knowledge of our history might make the difference in our willingness to no longer tolerate the re-emergence of this disempowerment of the typical American citizen because we can better discern, analyze, and critically think about the Citizens United decision.
Originalism- a Fabricated Judicial Philosophy
The Supreme Court’s Citizen United decision was only the “tip of the iceberg” of the kind of major change in our government that Americans must be taught to recognize and act civically upon. We are now seeing “the rest of the iceberg” stemming from a SCOTUS that now has a radical “conservative” majority on the Court (as a result of Justice appointments during the Trump administration). This self-described conservative majority subscribes to the judicial philosophy of “originalism” in their interpretation of the law in cases before them.
With this majority in place on the nation’s highest court and their clear intention of applying this originalist judicial philosophy in their decisions, a torrent of change to American life has now been unleashed. This torrent of change is poised to make major changes in our public square for decades to come in terms of what our federal government's role should be in Americans’ lives. And, a majority of SCOTUS justices subscribing to the judicial philosophy of originalism have direct and indirect ties to the same billionaire class that has affected our civic arena since the Citizens United decision unleashed their dark money.
Originalism is “…a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding ‘at the time it was adopted’…Originalism is an umbrella term for interpretative methods that hold to the “fixation thesis”, the notion that an utterance’s semantic content is fixed at the time it is uttered.”[13] There are alternative understandings as to the sources of this meaning for originalism, including “original intent theory” which “…holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. The other is “original meaning theory”, related to “textualism”, which views that interpretation of a constitution should be based on what reasonable persons living at the time understood the meaning of the text to be.[14] David Cole, writing for The Washington Post, puts it more simply by describing originalism as a judicial philosophy that “…maintains that the only way to decide constitutional disputes is ask how they would have been resolved when the Constitution was drafted.”[15]
Why Judicial Originalism was Such a Major Change
The major change at work here that Americans need to be equipped to identify and respond to is that, according to Richardson, “…In the past, the Supreme Court has operated on the basis of ‘stare decisis’, which literally means ‘to stand by things already decided’. The purpose of that principle is to make changes incrementally so the law stays consistent and evenly applied, which promotes social stability.”[16] (emphasis mine)
But, recent SCOTUS decisions, as well as their indications of future cases they will consider, show just how fundamental the change will be to American life by the Court majority’s movement away from stare decisis to a stricter adherence to originalism in its decisions. These decisions range from recent cases regarding abortion rights (Dobbs v. Jackson Women’s Health Organization) and gun rights (New York State Rifle & Pistol Association v. Bruen) to cases on voting rights in North Carolina[17] (Moore v. Harper), all of which will have or had major impacts on Americans’ daily lives.
Like any judicial philosophy, originalism has its advocates and detractors, its strengths and flaws. Even its critics recognize that the history and context of the Constitution’s drafting and previous Court decisions should be a key component to SCOTUS decisions, but that it cannot always be the only or primary criteria. That view would be more in alignment with those that view the Constitution as a “living document” that “…should be interpreted based on the context of the current times and political identities even if such interpretation is different from the original interpretations of the document.”[18]
An Unintended Consequence of Judicial Originalism- Elevating States’ Rights
A common thread through these recent cases with the Court majority applying the judicial philosophy of originalism is the elevation of states’ rights over the federal government’s ability to protect its citizens’ rights via the Constitution’s Fourteenth Amendment’s equal protection clauses (when a state passes a law that impedes or hampers those rights). States’ rights arguments were the underpinning of Southern states’ willingness to support their practice of legalized human enslavement prior to the Civil War. Post-Civil War, this states’ rights thinking led to Congress passing the Fourteenth Amendment to deal with the violence of Reconstruction and the oppressive Black Codes in the South.
This originalist elevation of state’s rights over the Constitution also subscribes to ideas like “independent state legislature doctrine”. This doctrine argues that only a state legislature and no other branch of government, including state courts, can intervene when a state legislature gerrymanders election districts, enacts discriminatory election rules, or makes elector appointments that thwart voter participation or the outcome of an election.[19]
Why Knowing About Changes in Judicial Philosophy Matters
Due to significant impacts like these, knowing about originalism and other judicial philosophies is a key part of civic literacy. For all these reasons, perhaps Thomas Jefferson summed up the most practical way of viewing and interpreting our Constitution in his 1816 letter to Samuel Kercheval:
"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times." (emphasis mine)
Thomas Jefferson understood that democracies are organic; ever evolving to meet the needs of society in the present day. Choosing judicial philosophies that require being inflexibly bound to the past can have the unintended consequence of preventing us from dealing with problems in the present that did not exist when the founders wrote our Constitution, nor could they have foreseen them.
With Knowledge Comes Power
Whether it is the Supreme Court relying on “original intent” to interpret our Constitution, or the impact of unrestrained billionaire special interest funding to influence our government vis a vis the Citizens United decision, these major changes are happening every day. These changes are happening at a quickening pace and show no signs of slowing down. They impact all Americans, but we must know about them, watch for them, and monitor them with the intention of knowing how they will impact or are impacting our daily lives.
Further, knowing about these major changes can give us the opportunity to express our views to our elected officials that we want issues stemming from this major change, especially court decisions, to be addressed. Forewarned is forearmed and up to this point, in many cases we do not “know what hit us” until it is too late. For example, if Americans clearly understood the nearly invisible parallel government created by the Citizens United decision, it would likely top the list of reforms Americans would want to have addressed now.
And, there are many other major changes in our civic arena underway, many making fundamental changes to democratic institutions and structures that underpin our democratic form of government. These include changing public education from a common good to a “market choice”. Or, watching a major political party dissolve into a fascist cult of personality in real time.
Next Stops- Gas Lighting, Big Lies, Conspiracies and Cults
We have been examining a progression- the key progression in the use of, or failure to use, critical thinking skills as citizens in a democracy. This progression involves not only understanding what critical thinking is, but knowing the tactics used by leaders to impede our critical thinking including logical fallacies, lack of historical knowledge, myths, wrong conclusions, false narratives, and failing to recognize major change in the public square.
We move next into leaders’ tactics that not only impede our critical thinking at an individual level, but at a collective, national level as well. Stay tuned…
We will continue exploring topics like this gone that are not given near enough time and emphasis in our civic education efforts, if they are even taught at all. Democracy is so important. But it’s hard to keep, and it’s easy to lose. It’s up to us, and only us, to protect it. Support democracy, become a Democratist! Spread the word!
[1] Citizens United Explained, by Tim Lau, December 12, 2019, Brennan Center for Justice, https://www.brennancenter.org/our-work-research-reports/citizens-unitied-explained
[2] Citizens United Explained, by Tim Lau, December 12, 2019, Brennan Center for Justice, Ibid
[3] Citizens United Five Years Later, by Daniel I. Weiner, January 15, 2015, Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/citizens-united-five-years -later
[4] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 208, Copyright 2016, 2017, Doubleday, a division of Penguin House LLC, New York
[5] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 108, Ibid
[6] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 110, Ibid
[7] If We Can Keep It, by Michael Tomasky, pg. 181, Ibid
[8] If We Can Keep It, by Michael Tomasky, pg. 181, Ibid
[9] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 288, Ibid
[10] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 292, Ibid
[11] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 288, Ibid
[12] Dark Money, The Hidden History of the Billionaires Behind the Rise of the Radical Right, by Jane Mayer, pg. 294, Ibid
[13] Originalism, Wikipedia, https://en.wikipedia.org/wiki/Originalism
[14] Originalism, Wikipedia, Ibid
[15] “Opinion: The Supreme Court Embraces Originalism- and All Its Flaw”, by David Cole, The Washington Post, June 30, 2022, 7:00 a.m. EDT, https: www.washingtonpost.com/opinions/2022/06/30/supreme-court-originalism-constitution
[16] Letters from an American, June 30, 2022, Heather Cox Richardson, Copyright 2022
[17] “How the Supreme Court Could Radically Reshape Elections for President and Congress”, Hansi Lo Wang, NPR, June 30, 2022, 10:47 AM ET, https://www.npr.org/2022/06/30/107648753/supreme-court-north-carolina-redistricing-independent-state-legislature-theory
[18] Originalism, Wikipedia, Ibid
[19] Letters from an American, June 30, 2022, Ibid