Get Big Money Out Of Law?

By Kevin D. Williamson

Thursday, September 09, 2015

A friend of mine who is not poor recently earned herself a traffic ticket, and like most people with some money her first instinct was to shovel cash in the general direction of the problem — she wanted to avoid the points on her license, to be sure, but mainly she wanted to avoid listening to her husband give her grief about her driving, which apparently is enthusiastic.

Throwing money at the problem generally works in the American context, and how you feel about that tends to correlate with your politics. Conservatives, being unromantic about man and his prospects, tend to accept that situation; progressives object. Those of you who protest the unfairness of a money-talks society should consider that the alternative is not a society in which everybody is treated equally and fairly — not by a long shot. The alternative is a situation in which other forms of status fill in, with money’s influence being supplanted by that of ethnic or religious affiliation, personal relationships, or political favoritism. Progressive thinking is rooted in ideas about how the world should work, while conservatives content themselves with trying to understand how the world does work.

Social power is a predictable thing. You can see how that plays out in very poor places, such as villages in India or housing projects in big American cities, where people are roughly equal(ly poor) but are by no means treated equally. But you see it at the high end of the socioeconomic spectrum, too: The old elite social clubs routinely reject famous billionaire businessmen not in spite of the fact that they are famous billionaire businessmen but because of it — they’re the wrong kind of rich. In a world in which every rich guy has the means to buy his way into the club, buying his way in is the one thing a rich guy can’t do. You aren’t in the club because you aren’t in the club.

If this were only about where one plays golf or has lunch on Saturdays, it wouldn’t matter much, and there is something to be said for old-fashioned social hierarchy. But it applies to more important things, too: Whether your children get into a certain school, or whether you are considered for a certain job.

Also: Whether you go to jail.

In the matter of my friend’s moving violation and offenses of that sort, money definitely talks. Your ability to avoid conviction for a crime in which there is no visible victim, to be able to plead to a lesser offense or walk away with nothing more than a stern warning and a lighter wallet, is directly related to your ability and willingness to pay lawyers a lot of money. This is even true of more serious matters: Drunk driving is not a victimless crime (the victims are everyone the drunk driver recklessly endangers, whether they know it or not) but in drunk-driving cases in which no one is hurt, money often makes the difference between going to jail, losing one’s driver’s license, etc., or having a preferable outcome such as deferred adjudication. You’re less likely to be able to simply lawyer your way out of a more serious crime, especially one in which there is an identifiable victim. But even in murder cases, being able to afford the best representation makes a significant difference in your likelihood of achieving a better outcome. Having better stuff, including better legal representation, is the definition of being well-off.

The Democrats, most notably Harry Reid and Hillary Rodham Clinton, have been for a few years making an issue out of the non-issue of “money in politics,” by which they mean the ability of wealthy individuals, or groups of non-wealthy people pooling their money, to speak and to use the resources at their disposal to amplify their voices. They call this campaign-finance reform, but it is nothing of the sort: The fundamental issue in the Citizens United case was whether the government could ban the showing of a film critical of Hillary Rodham Clinton. The Supreme Court, enjoying a bout of lucidity, said, “No.” The Left has had its Underoos backward about the issue ever since.

Silly rhetoric to the contrary, millionaires and billionaires really cannot buy election outcomes. We’ve all seen rich people and moneyed institutions put millions of dollars into candidates and achieve roughly nothing. American government does not look very much like Charles and David Koch or Sheldon Adelson would like. Or much like what Tom Steyer, the billionaire benefactor of progressive causes, would like. Just as there are $10-an-hour men on both sides of every political issue, there are billionaires on both sides.

But the rich still make their influence felt and get their way more often than their mere numbers would suggest. This is in fact a good thing; as the economist Bryan Caplan has pointed out, the wealthy are notably more libertarian on both social and economic issues, while the lower classes are very strongly statist across the board: pro-regulation and redistribution, anti-gay, unconcerned about civil-liberties violations in the so-called war on terrorism, etc. We have a slightly more tolerant society because the views of the well-off prevail slightly more often. Professor Caplan’s essay is titled, “Why Is Democracy Tolerable?” and the answer is: because we don’t take it too far.

The billionaires are not the only ones who have voices that carry well beyond their numbers. The pages of the New York Times and the Washington Post are the ultimate in clubs that you cannot buy your way into, which is what the fight over “money in politics” is really all about. Democrats, having long enjoyed intimate relations with the press, are confident in their ability to get a more than fair hearing from Dean Baquet or Lester Holt, and they are confident that so long as the terms of the debate are set by the right sort of people, then they’ll prevail. But the club isn’t the only show in town — we are no longer in the age of two newspapers, three television networks, and one wire service to rule them all — and now any old nobody with a big enough pile of money can buy airtime or advertising space and publish whatever the heck he likes. If that means gutting the First Amendment, so be it — every Democrat in the Senate this year voted to do precisely that.

They’d do better to argue for the abolition of private legal representation.

It follows naturally from the progressive line of reasoning: If asymmetrical outcomes for the wealthy are intolerable in elections, where the asymmetry is modest, then they should be double-special intolerable in the courtroom, another political space, where the asymmetry is large — and where there is, on the individual level, much more at stake. The question of whether the mediocre lawyer with the R next to his name or the one with the D next to his name represents you in the House will in most cases make a lot less difference to your health and happiness than the question of “guilty” or “not guilty.” Who knows, we might even get better laws if the well-off cannot use their money to shield themselves from the full force of the American criminal-justice system, which is at times severe to the point of cruelty.

Wouldn’t assigning defense counsel on a lottery system, with all defenders public defenders, be more “fair” than the current system under which the rich get the kid gloves and the poor get the iron fist?

The case against “money in politics” is also the case against money in the courtroom. In fact, the case against money in criminal law is the stronger case, but don’t expect to hear Mrs. C making it: When the time comes, she’ll want the best defense money can buy.