The Hacking of the American Mind

by Robert H. Lustig

  Corporate “Justice”

  Why would a Supreme Court justice be the thumb on the scale that tipped America to favor corporate over individual interests, on which so much of our current unhappiness is grounded? (See Chapter 14.) How does one man out of nine wield that much power, and in the judicial branch, no less? Does the Bill of Rights count for nothing? Powell’s biography gives us several clues as to his philosophy and his methods. In World War II, Powell worked in U.S. counterintelligence, where he learned the need for absolute secrecy. Following the war, for twenty-five years he was a partner at Hunton, Williams, Gay, Powell and Gibson, a Virginia firm specializing in litigation and business law. During this time, he also served as chairman of the Richmond School Board and advocated “constant surveillance” of school textbook and television content. He was at the helm of that school board when the Commonwealth of Virginia defied the Supreme Court’s mandate for integration in Brown v. Board of Education (1954). He also served as the liaison between Virginia Commonwealth University and the tobacco industry. The first salvo sounded in 1950 with the now infamous Doll paper2 equating smoking with lung cancer. At that point Lewis Powell’s firm began to provide legal defense for Big Tobacco. From 1964 through 1971, he served on the board of directors of tobacco giant Philip Morris. In fact, he represented the Tobacco Institute and various tobacco companies in numerous law cases, defending them against individual and class action lawsuits for lung cancer. In 1971, because of his corporate ties and pro-business leanings, he was appointed to the Supreme Court by President Richard Nixon. Note that Justice Powell was never a state or federal judge nor was he a constitutional lawyer.

  In 1971, prior to his nomination for the high court, Powell wrote a secret memorandum to his friend Eugene Sydnor, who was the chair of the U.S. Chamber of Commerce. In this now-notorious document, entitled “Attack on the American Free Enterprise System,”3 he bemoaned the loss of American standing in the world in the 1960s due to the civil rights and counterculture revolutions, as well as decrying the loss of corporate power due to the ongoing assault of both “extremists of the left” and “perfectly respectable elements of society.” In the secret Powell Memorandum, he admonished Sydnor to help take back America from the hands of the mob. Corporate America, he stated, must become more aggressive in influencing and molding politics and law. He argued that the U.S. Chamber of Commerce, at that time a passive pro-business lobby group, must itself become politically active. He stated that business must not waver and take on prominent bastions of public opinion and political power—the universities and the courts.

  Not only did this resonate with Sydnor, but this “confidential” Powell Memorandum quickly spread throughout the business community—not quite viral, but more parasitic. This missive can be traced to the origins of several right-wing think tanks and lobbying organizations, such as the Heritage Foundation (the origin of Reagan’s Star Wars missile defense system) and the American Legislative Exchange Council (a front group for the food and pharma industries). By the time this document revealing Powell’s biases and motives was leaked to muckraking Washington Post reporter Jack Anderson, who reported it in 1974, Powell was firmly ensconced on the Supreme Court.

  Like a worm that slowly eats away one apple at a time in the barrel until the entire barrel is contaminated, Powell’s action on the Supreme Court ate away at individual rights, with the result that we now have diminished individual contentment and increased societal anxiety. Let’s look at some of the seminal cases where Powell voted with the majority.

  1976: Va. State Pharmacy Board v. Va. Citizens Consumer Council. This case allowed unfettered corporate advertising to unsuspecting patients, paving the way for all the drug ads you now see on TV. This case has helped the pharmaceutical industry harness fear to create demand for their products (see Chapter 14).

  1976: Buckley v. Valeo. This case was the precursor to Citizens United. The decision did away with limitations on campaign spending and individual donations in elections (thirty-four years later, Citizens United allowed corporations to turn their treasuries into campaign war chests to bankroll any candidate to do their bidding). Now public elections are a free-for-all, where politicians, high-rolling donors, and corporations can buy elections, and the most money wins. Higher betting means higher pay-outs. And, to quote Will Rogers, “A fool and his money are soon elected.”

  1978: First National Bank of Boston v. Bellotti. This was a 5–4 decision, and also set the groundwork that paved the way to Citizens United. Powell was the deciding vote and wrote the majority opinion. This case basically said that corporations could say whatever they wanted and vote with their dollars. Of course they do say whatever they want, and they vote for themselves in the form of campaign contributions. When there are more dollars than votes, it becomes a societal problem.

  1980: Central Hudson Gas & Electric Corp. v. Public Service Commission. This was another 5–4 decision, with the majority opinion authored by Powell. Up until this case, public utilities were just that: public. They could not have an opinion and they could not advertise, because they were a public trust. Powell saw it differently. By the time Powell got through, he had protected “commercial speech from unwanted governmental regulation.” He instituted a four-part test for government to regulate commercial speech: (1) Does it violate the First Amendment? Well, only speech that breaks the law (incitement to riot, yelling “Fire!” in a crowded building) isn’t covered. Otherwise it’s fair game, even if it is false. (2) Is the government interest substantial? That means that short of trying to overthrow the government, anything goes. (3) Does the regulation advance the government interest? Corporations could sell poison to the public, but as long as people aren’t dying in the streets (i.e., obvious deception), government stays quiet. Tobacco was a good example. And finally: (4) Is the regulation as narrowly tailored as it can be? In other words, there must be a “reasonable fit” between the government’s ends and the means for achieving those ends. Oh, by the way, it’s not any of the four; it’s got to be all four that are violated at once. So virtually any speech can be corporate speech.

  In the span of four short years, 1976 to 1980, Lewis Powell helped to lay waste to any hope of keeping corporate power and influence in check. If you want an analogy of the degree to which one man can change the landscape of America, think back to Frank Capra’s timeless Christmas classic It’s a Wonderful Life (1946). Jimmy Stewart plays George Bailey, the forlorn do-good head of the Bedford Falls Savings and Loan, who holds the mortgages of virtually every townsperson and who, on the brink of committing suicide, is visited by a Christmas angel who shows him what his hometown would look like if he’d never been born. A very different place where prostitution, alcohol, and guns are the fabric of society. Pleasure and reward is primary, to the delight of the bankers and to the detriment of the citizens. Indeed, we’re all now living in Potterville . . . I mean, Powellville. All dopamine all the time, with a soupçon of cortisol thrown in to stir the pot.

  The Rights of the “People”

  This is how the U.S. Supreme Court has paved the way for the relentless marketing of products, irrespective of their utility or cost, either personal or societal (e.g., Big Pharma, Big Food). And there’s virtually nothing left in the public legal arsenal to curb their influence. On top of that, we have now elected the first “populist” president, who is on the side of corporations versus the government instead of on the side of the people. The marketing salvos come swift and hard, they’re aimed at our nucleus accumbens (food), our amygdala (drugs), and our prefrontal cortex (our Jiminy Cricket), and we can’t possibly defend against all of them.

  Corporations are now blessed with the ability to produce and subject us to virtually any unfettered form of corporate advertising, campaign spending, and commercial speech. Not only that, but because of Justice Powell’s legacy, corporations have even more rights than people do. They have both the rights of corporations and the rights of individuals.
Nobel Laureate Joseph Stiglitz chronicled the fact that corporations can now sue the federal government for restitution of profit lost from the enactment of any government policy.4 You can’t sue the government, but they can? Are you kidding me? And there are no prosecutions of individual lawbreakers, as they derive protection from civil actions by their position as an instrument of the corporation, and you can’t lock up a corporation. Witness the Economic Recession of 2008, perpetrated by Big Banking against the public using the vehicle of subprime mortgages. Lehman Brothers, Washington Mutual, Countrywide—all gone, and their investors’ money with it. Merrill Lynch was forced to merge with Bank of America, and Bear Stearns with JPMorgan Chase. AIG and Citigroup survived only because of the government bailout. Lots of stress and cortisol and very little serotonin. But who was prosecuted? A total of one person—a Credit Suisse banker, Kareem Serageldin, born in Egypt. The judge who sentenced him called him “a small piece of an overall evil climate within the bank and with many other banks.”

  Why didn’t they prosecute the rest of these corporate hoodlums? Simple. They work for corporations. If corporations are “people,” then do you employ the rules regarding corporations, or do you employ the rules regarding people? Do you call it a lack of caution, in which case it is a corporate civil action with no jail time? Or do you call it personal “criminal fraud,” a felony punishable by incarceration? The Department of Justice has chosen the former, in part because the Court’s current leanings would undo any such criminal case.

  Given their pro-business behavior, you could argue that the success of the Corporate Consumption Complex versus the American public lies squarely at the doorstep of the Supreme Court. But that would only be half the story. Congress has also played a significant supporting role in creating our current reward-driven culture, which allows for marketing of virtually anything and everything (see Chapter 14). Nowhere is this better exemplified than in the story of how Congress changed its tune in the span of just one decade around the promotion and marketing of junk food (see Fat Chance), aimed at one target: dopamine.

  When Legislature Is Corrupted, the People Are Undone

  The junk food industry started to take off in the 1970s in part due to (1) improved harvesting and food processing technologies by companies like Archer Daniels Midland and Cargill, and (2) the enormous federal subsidies for corn, wheat, soy, and sugar supplied to processed food companies as part of the Farm Bill, which made them cheap. The original Farm Bill, which dates to 1933, had as part of its legislation the Agricultural Adjustment Act of 1933 (revised in 1938), which paid farmers not to grow certain crops and to kill off certain livestock—this effectively reduced supply and artificially increased prices—and farmers got to double-dip. This policy diametrically changed course in 1971, when President Richard Nixon decided that fluctuating food prices caused political unrest (and he had a lot of unrest to deal with). He remanded his agriculture secretary, Earl Butz, to make food cheap. Butz immediately canceled the government handout, and said three things to the American farmer: “Row to row,” “Furrow to furrow,” and “Get big or get out.” Government now would reimburse on quantity, not quality, and the farmer would make it up in volume. Let’s use corn as an example. If you make corn more plentiful, supply and demand says you sell it for less. But if some of that corn is turned into high-fructose corn syrup, and that’s put in every processed food, then you can sell it for more. And if you turn some of that corn into ethanol, you can sell it for even more.

  Also in the late 1960s and early 1970s, just as this massive agricultural overhaul was beginning, the sugar industry came under intense scrutiny due to nutritional research performed by John Yudkin in the UK and Sheldon Reiser in the U.S., which correlated sugar consumption with heart disease. In response, the Sugar Association established a public relations arm called Sugar Information, Inc., and hired a PR firm to blanket the country with pro-sugar propaganda. Saying that sugar was the “quick energy” to provide “the willpower you need to undereat” and “to curb your appetite”—in other words, deceptive advertising designed to drive your dopamine upward. In 1972 the Federal Trade Commission took Sugar Information to court5 and shut it down. This was heralded as a major win for consumer watchdog groups and demonstrated the power of government to protect the public.

  Unfortunately, this episode was also the immediate impetus for the chartering of the American Legislative Exchange Council (ALEC) in 1973. ALEC’s website states that “Americans deserve an efficient, effective, and accountable government that puts the people in control” (www .alec.org). But it doesn’t define which people. What ALEC does is draft “model legislation” that favors its funders, and then feeds these model bills to state or federal legislators to get them passed. A new way to perform congressional lobbying. A corporate bill mill and front group. When you hear a politician railing against corporate special interests, they’re talking about ALEC. And who are the funders? Well, there are a lot of them, but the food and pharma industries were founding members, and agriculture, pharma, and guns are numbers one, three, and four on their bill-writing agenda. ALEC doesn’t just write the bills, they provide campaign contributions to the legislators who introduce them into law, which currently totals 338 out of 535 congresspeople.6

  Special interests grew exponentially in the 1970s, especially after the Supreme Court verdict in Buckley v. Valeo. In 1970 there were 175 lobbyists in Washington, D.C.; by 1980 there were 2,500. In 1970 there were 300 established political action committees; by 1980 there were 1,200.

  This leaves us with a conundrum: Who’s in charge? We pride ourselves on being a democracy. We choose who to vote for, and what we want to spend our hard-earned money on. Or do we? When corporations can act with impunity, unbridled, without oversight, and both dictate and cater to our deepest wants and desires, where is the accountability? This is the model theorized by Princeton philosopher Sheldon Wolin, who warned us of the evolution of a political hybrid in which corporate America and Washington were one and the same.7 Political scientist Martin Gilens goes even further8 by showing that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy. For instance, if a congressional bill is supported by 20 percent of the rich, it passes 20 percent of the time; whereas if a similar bill is supported by 80 percent of the rich, it passes half the time. As long as America views the concept of happiness as consistent with both consumption and GDP, it will not be able to break free of corporations’ stranglehold on our brains. And they know what they’re doing, because they’ve done the research and know what works. Read on, and you will too.

  14.

  Are You “Lovin’ It”? Or “Liking It”?

  Although corporations are now people, they are not faceless behemoth monsters. They are comprised of fine and upstanding individuals, each with principles, morals, and high aspirations. But they work for a corporation, whose only job, in the words of Goldman Sachs CEO Lloyd Blankfein, is to make money. They are very good at what they do. In the process they have honed the ability to exploit human emotion. It is called marketing. By conflating the notions of pleasure and happiness, they know how to get a rise out of your dopamine and cortisol.

  Many Happy Returns

  My personal favorite is Coca-Cola’s “Open Happiness,” first unveiled in January 2009 and still going strong. This is the longest-running media campaign for the 131-year-old company, which has arguably mastered the messaging of its own concept of happiness to the masses. So if this is the longest campaign, you know it must be working, both within the U.S. and worldwide. In 2015, Coca-Cola aired a commercial in Mexico featuring a group of white hipsters who drove into a Mexican village bearing housing supplies and coolers of Coke. The villagers smiled with what appeared to be genuine happiness at the entrance of these well-meaning outsiders and their ability to construct a Christmas tree made out of Coca-Cola bottle caps. The commercial was eventually pulled but was exemplary o
f capitalizing on America being the ideal and Coke being the way to get there.

  Let’s see, high-fructose corn syrup (or sucrose in Mexican Coke)—that increases dopamine. Caffeine—that increases dopamine. Water, phosphoric acid, carbonation, salt, caramel color . . . I’m not seeing it. And the metabolic syndrome that results from continued excessive sugar consumption—that decreases serotonin. A bottle of Coca-Cola can certainly provide a little reward, but it is a far cry from contentment. Coca-Cola isn’t the only culprit in marketing dopamine and disease to the masses through sugar.

  How about “I’m Lovin’ It” from McDonald’s? This was the company’s tagline from 2003 until 2015. They veered off course in 2012 by tipping their hand with something a little too close to home: “Crafted for Your Craving”—in essence admitting to consumers that they have addictive intentions in mind. But that campaign didn’t last long. McDonald’s sales are currently flagging in part due to international consternation over the overwhelming links between processed food, obesity, and diabetes. In 2015 they fired their CEO Don Thompson due to flagging sales. Do you think it’s called a “Happy Meal” by accident? That they pitched their product to children with plastic trinkets and smiling characters accompanying the joy of sugar and fat and salt? That dopamine/reward surge starts early, and they’re branding kids for life. Every day, McDonald’s serves up 3.2 million Happy Meals, grossing more that $10 million per day, and kids who order them now account for 14.6 percent of customers. McDonald’s is pleasure (although that is highly debatable). They’ve been called out on their role in the obesity epidemic, and they are now attempting an about-face, including options of apple slices (don’t forget the caramel dipping sauce—scrapped in 2011 because of the obesity epidemic). But most kids still prefer the fries. And chocolate milk has just as much sugar as the soda. If you’re taking the kids to McDonald’s for a Happy Meal, I doubt you’re ordering the salad instead of the Big Mac.