Dan Backer called into the Steve Malzberg Show yesterday to pat himself on the back for winning the McCutcheon v FEC decision in the Supreme Court. Backer is the foremost litigator in the brave new world of Citizens United, with fingers in all kinds of conservative and libertarian money games. But his interview is more revealing of the radical agenda underlying his efforts than any firm constitutional foundation.
Backer says that his opponents “never had a valid argument.” In fact, Backer is the one with the innovation here, a precedent called Citizens United that marks the Robert Court as the most activist Supreme Court in American history. In Backer’s world, money simply is speech, making any rules to limit political spending a limit on that free speech. These two decisions have overturned decades of campaign finance laws that had previously been upheld by the courts. Emphasizing just how marginal this point of view really is, Backer and Malzberg invoke a right wing urban legend about the Fairness Doctrine making a comeback.
Imagine what it would mean for our democracy, for our society if the government could go in and put, say, government employees in your newsroom or your radio show and dictate to you what you are and aren’t allowed to say because they want more of this or less of that.
That is a straw man argument. Federal regulators commonly limit the power of broadcasting stations, for instance, which are private property. They limit network broadcast television from airing obscenity, and fine stations that do. All of this has been perfectly possible without the government telling any TV or radio station what kind of shows to broadcast or which news stories to quash. Democracy works best in a well-ordered marketplace where communication is transparent and monopolies are limited. Campaign spending limits inhibit political monopoly the way levees hold back the flood, and Backer says that you will not be truly free until he has smashed all the dikes.
It is hilarious to see Dan Backer say that the previous rules have “fundamentally benefited incumbents.” Backer styles himself an insurgent, but he is the ultimate insider. Senate Majority Leader Mitch McConnell, who argued the McCutcheon case before the Supreme Court, has been the beneficiary of more “grassroots” tea party cash from Dan Backer than his tea party primary opponent. What Backer really means is that the previous system restricted his personal ability to pick winners and losers, just like those poor disempowered billionaires want to do now that their slave shackles are off.
You see, Backer is very, very worried for the one percent. He has worked tirelessly to create a world where they can do all the opaque political “speaking” they want. He has even threatened to sue the IRS in order to prevent disclosure of political donors as required by law. Now he says that if we don’t all stop talking about the Koch brothers right this instant, they should sue to shut us all up:
We’re getting to a point where the level of personal attack in legislation, not even just [against] industries but now companies, is [so far along that] I’m waiting for the first [lawsuit] where a corporation simply says, ‘look, we are being unconstitutionally singled out, you are attacking us, and we’re entitled to relief.
In his world, money is speech, and must therefore be free — but anyone who disagrees should not be free to speak to their elected legislators about remedies, because freedom. Backer might as well declare himself the chief apologist for oligarchy.
Video: Dan Backer on the Steve Malzberg show yesterday.