How the "Rules" Determine if Criminals Become Politicians
It’s a low bar, but America must become at least as functional as the NFL!
How do criminals take over countries?
Donald Trump, for example, is a criminal, as the Supreme Court arguably determined yesterday when they denied his efforts to claim executive privilege to conceal his crimes. And as would be strongly suggested by his son Eric invoking the Fifth Amendment over 500 times in a single deposition about fraud.
His niece and multiple biographers have well-documented how he’s been a criminal since his youngest years, working with his father to skim government rental money by faking maintenance work, refusing to rent to Black people, and openly stealing tens of millions from members of his own family.
And he is still at it: he’s raised several hundred million dollars just in the last 12 months from gullible followers based on lies about not losing the last election.
Today his crimes of tax evasion, bank and insurance fraud are in the headlines, along with his attempt to draw Georgia’s Secretary of State into a criminal conspiracy to steal the presidency of the United States for his own personal gain and to keep himself out of jail. As several biographers and his fixer, Michael Cohen, have told us straight up, Trump thinks of himself as a mafia-type crime boss and revels in behaving like one.
So, how do criminals like this become politicians? And how did it happen here?
Sometimes it’s through brute force. I was in The Philippines in February, 1986 when a rising young anti-Marcos reformer politician, Evelio Javier, was chased through the streets and assassinated in a public toilet. I watched a massive procession that I recall was carrying his body snake down the street in front of my hotel in the Makati district, an event that led to President Marcos fleeing the country within the month (and him and his cronies bumping me off several Philippine Air flights trying to get myself to the US).
Other times its strategic blunders. Conservatives in 1933 Germany were so worried about keeping socialists and communists out of power that Hindenburg and Von Papen handed over the reins of power to the leader of a rising rightwing party, even though he and his Nazi party had never gotten more than about a third of the vote nationwide; they were convinced that they could easily control him. Hitler knew better.
But in most cases of the rise of what Alexander Litvinenko termed a “Mafia State,” it comes about because the rules have changed.
Seriously, it’s that banal in most instances. It’s all about the rules. And that’s what happened here.
After all, the rules define the game. If you play by the rules of football, then you’re playing football. If you’re playing by the rules of baseball, then it’s a baseball game. Ditto hockey, basketball, and politics.
For example, the NFL heavily regulates football in the United States, at least the football played by its teams. Those regulations include how many players are on the field at any time, exactly what constitutes a down or a touchdown, and rules about how players may physically contact each other and under what circumstances.
The NFL’s regulations also decide which team gets first pick of new players: they decided that the worst-performing teams should have first choice of newly available players, giving every team an opportunity to rise up through the ranks in the following season. It’s sort of like progressive taxation, giving the little guy a chance while slightly restraining those already at the top.
These regulations guarantee the safety and stability of the game itself, and also guarantee that fans of football have a consistent experience, because everybody understands and follows the rules.
But imagine if Mafia-minded criminals in the mold of Trump were to have taken over the NFL (something Trump once dreamed of trying, but failed at that, too). How would they pull it off?
Step one: change the rules to benefit the morbidly rich owners instead of the fans, players or host cities:
The teams with the wealthiest owners would always get the best players, and thus would win almost every game.
The team that gave the NFL the most money through “Sports Action Committees” or “per-game campaign contributions” could have an extra player or two on the field at various times, depending on how much they’d coughed up.
When the teams that couldn’t come up with the vig started to fail, the new NFL management would assure us that they just have to “pull themselves up by their bootstraps.”
Perhaps their problem is just that their players are “lazy” or “getting too much in benefits,” the new NFL would tell us, so the solution is to cut their salaries and reduce the amount of protective equipment they can wear so that they’ll have an "incentive" to play harder and increase their performance.
Then the richest teams buy out the poorer teams, until all the teams are owned by three or four billionaires and the outcome of every game is known even before there are men on the field.
If this reminds you of how the US Senate runs right now — something we’ve been watching in real time this week with considerable anguish — it’s because the analogy is nearly perfect.
Our Constitution defines the rules of the game of American politics and governance.
The Framers did everything they could to ensure we’d have an enduring democratic republic; James Madison even pointed out in Federalist 51 how important it was that no one branch, person, or force within society come to overpower all the others:
“Ambition must be made to counteract ambition,” Madison wrote. “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?
“If men were angels, no government would be necessary. ... In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Thus, checks and balances came into the early republic and we muddled through the end of the 18th and most of the 19th century.
But the Industrial Revolution of the late 1800s brought mind-boggling levels of wealth to a small number of men, and those Robber Barons predictably reached out for control of the politicians, state and federal, who might regulate their behavior.
In response, states and the US Congress began passing serious laws to limit the corrupting power of money in politics.
In 1905, for example, Wisconsin passed a law (Section 4489a, Sec. 1, ch. 492, 1905) that explicitly said:
“No corporation doing business in this state shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.” (emphasis added)
The penalty included a substantial fine, years in prison for individual executives, and the political death sentence of the corporation itself being forbidden from doing business in Wisconsin:
“Any officer, employee, agent or attorney or other representative of any corporation, acting for and in behalf of such corporation, who shall violate this act, shall be punished upon conviction by a fine … or by imprisonment in the state prison for a period of not less than one nor more than five years, … and … its right to do business in this state may be declared forfeited.”
Two years later, efforts to control bad behavior by rich people and corporations went federal with the Tillman Act of 1907. That law explicitly forbade any corporation from making “money contributions in connection with any election to any [federal] political office.”
By 1925, the Tillman Act had been incorporated into the Federal Corrupt Practices Act, further limiting money in politics, and in 1938 we got the Hatch Act which limited contributions to $5000 per candidate and $3 million per party.
Following the Agnew and Nixon bribery scandals we got another bunch of laws to regulate money in politics, including the 1971 Federal Election Campaign Act, and the 1974 creation of the Federal Elections Commission, which then promulgated rules further limiting “dark money” and other forms of political bribery.
So we were still “playing football” and the “NFL” rule-keeper of federal and state regulation of money in politics was relatively intact.
Until Richard Nixon swung the Supreme Court hard to the right with the appointment of Lewis Powell in 1972, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America.
By 1978, Powell had authored the case of First National Bank of Boston v Bellotti, which blew up nearly all of those laws.
In 2010 five corrupt Republican appointees on the Court finished the perversion of American politics with their Citizens United decision, overturning hundreds of state and federal laws dating back more than a century.
They said that money wasn’t money (it’s First Amendment protected “free speech”) and corporations aren’t corporations (they’re “persons” with “constitutional rights” to exercise their “free speech” pretty much as far and wide as they choose).
Thus, big money now runs the show, and, to paraphrase Lord Acton, big money is always corrupt.
As FDR famously said, “Government by organized money is just as dangerous as government by organized mob.”
It’s gotten so bad since Citizens United that legislation Americans clearly want can’t even get a debate in the Senate, much less push a vote past a Republican filibuster:
Reduce student debt?
Free or low-cost college?
Dental, hearing and eyeglasses for seniors on Medicare?
Raise the cap on Social Security so it’s solvent for the next 75 years?
Get the Post Office into postal banking for low-income people?
Stop global warming?
Clean up all that e. coli and salmonella in our food supply?
Make pharmaceuticals affordable?
Medicare for all?
Tax the Rich?
Break up the big monopolies to restore competition and lower prices?
All of these positions, when polled as a single policy point rather than through a partisan frame, are overwhelmingly supported by the American people. None can get into law because either a few billionaires or corporations have paid off enough politicians to stop it.
This corruption of the “rules of the game” by the Supreme Court has, in turn, attracted criminally-disposed sociopaths into government at all levels, from state legislatures to the US Congress. It’s so bad that we can’t even stop members of Congress from trading stocks!
Go to OpenSecrets.org and plug in any politician’s name and you can pretty much predict how they’ll vote, based on who funds them and by how much.
This is America becoming a Mafia State.
Five corrupt “conservatives” on the Supreme Court forced this mess on us: it can only be fixed by replacing or overruling them. Congress has this power, should they ever feel enough pressure (like Congress did in 1905 and 1974) to do so.
If we don’t overturn Citizens United and it’s related metastases soon, the “wealth mafia” that’s overtaken the GOP and controls more than a few Democrats will keep pushing changes to the rules of the game until the US becomes the Philippines or Hungary.
The NFL would never let this happen. And if one of the owners tried, the institution and individuals within it would fight back tooth-and-nail like when Trump tried to get into that game.
It’s a low bar, but America must become at least as functional as the NFL!