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In 1969, freshly elected President Richard Nixon had a position to fill on the United States Supreme Court. He approached a very successful corporate attorney from Virginia. Lewis Franklin Powell, Jr. was, at the time, in his early '60s and a multimillionaire thanks to his law practice. A Supreme Court position would add prestige to an already successful professional legacy.

His family, though, was less excited about the move from the upscale surroundings of Richmond, Virginia to Washington, DC. Powell himself was reportedly not excited about leaving his practice and by the subsequent cut in income that would undoubtedly mean. Powell respectfully declined the president's offer.

Less than two years later, though, something happened.

Though they may not seem relevant now, let me assure you right now: Mr. Powell's story might be the single biggest example of the warped power advertising has on all of us. Quite seriously, I have never before come across a historical example of advertising's power over a nation's political future as sobering, as frightening, and as worthy of simple consideration as the example presented by Lewis Franklin Powell, Jr.

But I'll save that for last.

For now, let's meet a friend of Mr. Powell's, billionaire Richard Mellon Scaife. From Jane Mayer's excellent book, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (Random House, 2016):

For many years, in the foyer off Richard Mellon Scaife's Pittsburg mansion stood a prized possession, a brass elephant on a mahogany stand…. It served as the inspiration for a private organization that Scaife founded in 1964.

This loose organization was probably just a group of like-minded and very wealthy people who would gather here and there and, like many groups of similar folk, simply bitch and moan about the state of the country. Unlike many others, though, this group would probably do this while downing Scotch whisky older than the 1960s agitators and reformers about whom they loudly complained.

In his memoir, Scaife describes how he and a handful of other influential conservatives who shared the view that American civilization faced an existential threat from progressivism began meeting during the Cold War years... to plot against the country's liberal drift. At one such session, someone suggested that the … cliché comparing America's ostensible downfall to that of ancient Rome was inadequate. The group decided that a better analogy was to the fall of Carthage, in North Africa.

There's a good chance listeners out there have never heard of Carthage. One of its generals might be more familiar, though: Hannibal. Hannibal led one of the most audacious attacks in all of history, leading an army that included African elephants through what are now the Swiss Alps in winter in an effort to plunder the city of Rome itself.

The reason Carthage is now just a footnote in a textbook is simple. Rome had a long-standing policy toward those political entities that dared even threaten it: complete obliteration. After Hannibal's invasion failed, Roman armies decimated the population of Carthage.

(Oh, and that term "decimated" was very specific to Roman war policy. The prefix "deci" means one tenth. So, one tenth of everyone in a city to be decimated was killed. The rest were made slaves. And afterwards, all that remained of Carthage was burned.)

For Scaife and his drinking buddies, there was an important lesson there:

Carthage ostensibly fell when its wealthy elites failed to adequately back their military leader, Hannibal…. The passivity of the ruling class allowed the enemy to triumph, burying the noble Carthaginian culture forever. Out of this discussion was born the League to Save Carthage, an informal network of influential, die-hard American conservatives determined, as Scaife writes, "that America must not go the way of Carthage, that we must win the struggles of our time."

(Bold lettering all mine.)

Members of the League to Save Carthage called themselves "field generals," an homage to Hannibal. Lewis Powell was one of those field generals.

Like I said above, though, this was mostly just a club of very wealthy older white guys bitching about change while sipping, quite probably, the finest booze they could afford. And they were all at least millionaires. In the 1960s. Again, I'll bet that was some mighty nice booze.

But again, booze-fueled clubhouse bitch sessions and some random letters where they addressed themselves as field generals seldom makes history. What changed? What specific event or course of events forced a bunch of boozy buddies to stop dreaming of changing the world, into actually taking steps to change the world?

Once again, in 1971, something happened. And that something was momentous enough that Lewis Powell quietly made contact with President Richard Nixon and, less than two years after he had turned the President down, offered his name, if the President was still interested, as a candidate for Supreme Court Justice. Around the same time when he did this, offering to uproot his family and move from the leafy suburban mansion he called home to the gritty shithole of DC, he also wrote a now-infamous memo.

I encourage everyone to read this memo at least once. In it, you will find the blueprint for the political reality inflicted on the United States by its adherents and their wealthy backers. Chomsky read it!

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Let's pick up Mr. Powell's story just after his memo and, three months later, his public Court Candidacy announcement made by President Nixon on October 21, 1971. He was 64 years old; that was a criticism. President Nixon, himself a former corporate attorney, was undeterred. In their book Dollarocracy: How the Money and Media Election Complex is Destroying America (Nation Books, 2013), Robert W. McChesney and John Nichols quote the president saying of Mr. Powell, when it comes to the quality of years he could provide the court, "10 of him is worth 30 of most."

Continuing from "Dollarocracy," a month after his candidacy was announced, "…Powell was confirmed by an 89-1 vote."

What, not unanimously? This was 1971, after all, before Watergate, before many of the political scandals and conditions where agendas hijack the routine. Who was that lone hold-out?

Senator Fred Harris of Oklahoma, a populist whose politics and rhetoric harkened back to the great struggles to rein in the robber barons, cast the sole opposing vote. Powell, complained Harris, was "an elitist" who "has never shown any deep feelings for little people."

McChesney and Nichols could not help but note how very right Fred Harris was.

Media assessments of Powell's tenure on the High Court frequently portrayed him as a centrist, and few journalists ever described him as an activist. But this view had everything to do with the narrow, frequently listless coverage of the Court, which usually begins and ends with discussions of so-called social issues, such as reproductive rights and protections for lesbians and gays.

Why that detail is so important would take too long to discuss in a single, already-long post. For now, back to Dollarocracy.

However, when it came to using the Court to extend the reach of corporate power—in the workplace, the media, and politics—Powell was one of the most determined judicial activists in the history of the Supreme Court.

(Me again emphasizing boldly!)

The first sign of Powell's activism came three years after his confirmation when the Court reviewed Buckley v. Valeo. Some background, also from Dollarocracy:

…by 1972 the total amount spent on television political advertising for all races…had increased threefold from 1960 to reach $37 million. That would amount to approximately $200 million in 2012 dollars....

Which is, today, chump change, merely 3% of what was spent on television political advertising alone in 2012. But I interrupt; back to the story. In the quaint old days of the '70s:

…the American public seemed to have had enough. Research in 1973 …determined that Americans "continued to be disenchanted with political advertising," and found it less credible than commercial advertising, which was not exactly a high bar to meet.

(I made with the bold.)

An earlier poll from 1971

…determined that three-quarters of Americans wanted controls to reduce the amount of TV political advertising. Only 19 percent of Americans wanted to keep the amount of TV political advertising at the existing levels.

The authors of Dollarocracy threw in a little dig: "The notion that anyone might want more TV political advertising was so laughable that it was not even an option in the survey."

So laws were written to at least limit campaign contributions, where possible, or at least to require some notification about what money (above certain levels) was spent toward what campaign, and by whom.

Those limits were of course challenged in court. Bottom line: the Supreme Court overturned one provision of the legislation, that of expenditure limits. The rest of the legislation—disclosure requirements as to what money over a certain amount was being spent and where, mostly—were upheld.

It turns out that conservatism is not a universal construct, but rather, like all things human, a spectrum, a variance from one extreme to the others. And within conservatism, it turned out that Justice Lewis Powell, Jr., author of the majority decision, proved about as radical as any on the bench at the time, so much so that the others—who, again, had supported that decision—insisted on pointing out that they weren't like that guy, Justice Powell.

In any case, by removing the limits on expenditures, the Buckley decision, according to political philosopher John Rawls, "runs the risk of endorsing the view that fair representation is representation according to the amount of influence effectively exerted."

Buckley was not, of course, Powell's only decision. Another that greatly influenced the later landmark Citizens United, Not Timid* case was Bellotti v. First National Bank of Boston in 1978. Powell wrote the decision on that case as well. From the decision, which challenged "a Massachusetts law that gave corporations broad leeway to spend money on issues 'materially affecting' their own operations, but that limited the ability of corporations to spend freely to achieve political goals", Lewis Powell wrote:

The proper question therefore is not whether corporations 'have' First Amendment rights and, if so, whether they are coextensive with those of natural persons…. Instead, the question must be whether "the Massachusetts statute being challenged" abridges expression that the First Amendment was meant to protect. We hold that it does.

Ah, but that isn't the only thrust of the argument supporting the State statute Attorney General Francis Bellotti used against the First National Bank. What about the fear that corporate money could be used to overwhelm the voters by buying support for their positions? Powell outright dismissed that fear. Concerning such arguments, he wrote:

They hinge upon the assumption that such participation would exert an undo influence on the outcome of a referendum vote, and—in the end—destroy the confidence of the people in the democratic process and the integrity of government.

Yes, Justice Powell, I would agree: that is in all likelihood exactly what the lawmakers of Massachusetts feared.

According to the appellee, corporations are wealthy and powerful and their views may drown out other points of view.

Yes, yet again. Got anything to say against that?

If appellee's arguments were supported by record or legislative findings…, these arguments would merit our consideration…. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government.

(I emboldened a bit.)

Maybe that wasn't the case in 1978. I'm not sure it wasn't, but let's give the Justice the benefit of some doubt. McChesney and Nichols point out, though, that things have really, really changed.

Three decades later, the people themselves say that they have lost confidence in the democratic process and the integrity of government. This view emerges in poll after poll, in election results that evidence a desperation for fundamental change…. Citizens are taking to the streets to express frustration and fury with a system in which political corruption plays a "major role" in the nation's economic distress, according to 82 percent of Americans surveyed."

And, once again, Powell's opinion proved too extreme for even the other conservatives on the court. Justice Rehnquist——another very conservative justice, one later to become the Chief Justice in the Reagan years——in dissent from Justice Powell, wrote

…it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons…. A state grants to a business corporation the blessings of a potentially perpetual life and limited liability to enhance its efficiency as an economic entity.

(Again, my bolded words.)

Against Justice Powell, Justice Rehnquist also very specifically wrote: "It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere."

Reasonably? Yes, unless the reasoner is Lewis F. Powell, Jr.

Let's get back to the title of this Episode. One of my earliest memories was of driving in a car with family. An uncle was there. We had just left our household driveway and were traveling … somewhere. Someone—maybe my Uncle, maybe my Dad— offered me candy.

I was confused. They had offered me a name brand candy. I said, "Aren't those cigarettes?"

The adults all laughed.

They explained that L&M's were cigarettes; M&Ms were candy. Those were the first M&Ms I can remember eating.

My folks didn't smoke, nor did any members of my extended family. Visitors to our house were not allowed to smoke in the house——which, let me tell you, was very unusual at a time when unique ashtrays were considered a decorating essential.

So, how had I learned of a name brand of cigarette? Simple!

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I used to watch a shit ton of television. And a lot of it was aimed at children.

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Go in 46 seconds from the start in for the meat.

The Beverly Hillbillies, Gunsmoke, just about all the popular shows did their own cigarette advertising using the cast of the shows. If that doesn't expose kids to the coolness of smoking, nothing will.

Back to McChesney and Nichols: "…Congress approved the Public Health Cigarette Smoking Act in 1970, which banned advertising for cigarettes…" on television and radio.

Lewis Powell, Jr. was a corporate attorney representing The Tobacco Institute, a trade organization that initially supported the Tobacco Industry Research Committee, which, according to Wikipedia, worked "attacking studies that put tobacco in a bad light" and "attacked scientific studies, although more by casting doubt on them rather than rebutting them directly."

Powell was also on the board of Phillip Morris, one of the largest cigarette makers in the country. Once again, back to Dollarocracy:

In 1971, …his tobacco industry clients had been banished from the all-powerful arena of TV advertising, where it had proven profoundly easy to create new generations of tobacco addicts….

That one act of Congress hit Powell hard. With that act, that something that happened,

…it became increasingly clear to Powell that as the American political process opened up, and as democracy itself extended to include previously disenfranchised groups, corporations were having a harder time dominating the national agenda….

And, really, if they could not so easily dominate the national agenda, what kind of country would this become? According to those scotch-fueled bitch sessions with all his filthy rich field general friends in the League to Save Carthage, it would be no country any of them would recognize, let alone be proud to dominate with their collective billions of dollars.

Powell pondered the political moment where the commercial interests of big business could be so thoroughly upended by regulators…. He took two extraordinary steps.

One step was to, in 1971 and at age 64, upend his own life, to contact President Nixon and affirm his desire to serve on the Supreme Court. (At his swearing-in ceremony, his wife bemoaned to the wife of the other Justice being sworn in that it was "the worst day of her life.")

The other was to write his confidential memorandum to his neighbor and friend at the US Chamber of Commerce.

Powell felt such an intrusion by the mere democratic process on corporate America's freedom to act to be not just an affront, but an existential threat to wealth worthy of sustained challenge. Why? Lewis Powell knew exactly what advertising could do. He knew precisely how much less successful the tobacco industry would become once its advertising advantage was removed.

The reasoning is simple to understand and, by corporate executives like Powell, well understood: the money those ubiquitous cigarette ads provided the television industry kept that industry's news outlets well away from raising, or even hinting at, the health issues surrounding cigarette smoking that are now well known, established, and accepted.

Upton Sinclair, while running for Governor of California in 1934, summed up the power this advertising money had even on television news quite succinctly:

It is difficult to get a man to understand something, when his salary depends upon his not understanding it!

Concerning cigarette ads on the telly, if you can find a greater example of advertising's power over individuals, of advertising's recognition by the corporations that use it as the most effective force available to change minds in directions preferred by advertisers, let me know.

Until you do, the example offered by Lewis Franklin Powell, Jr.–—a man so fearful of an un-american, un-capitalistic future filled with socialist excesses such as simple bans on advertising for certain products that he essentially ended his successful professional life and instead dedicated what remained of it to overturning that ban by any means at his disposal—–that will be my touchstone, my prime example of advertising's power.

*The original name of the group that produced a smear film against Hillary Clinton, before the now-accepted truncated Citizens United name was more universally adopted. Spell it out.