With the constant nattering of the Occupy Wherever movement, it looks like we are going to have to deal with the notion of the 1% vs. the 99% for some time to come.  Of course, the Occupy people, to the extent they have any coherent notions at all, seem to be referring to the wealthiest 1% of the population.  This is certainly how it is understood by the mainstream media.  However, their adulation of wealthy celebrities such as Kanye West or Michael Moore, as well as their own demands for free stuff, belie the notion that it is wealth per se that they object to.  Rather, if anything they are saying makes any sense, their objection really is to the control that the wealthiest exercise over our society.

If we carry through on this logic (now I am doing some work for the Occupiers, since logic has not been their most obvious strength), the focus of their ire should be the most powerful 1% of the population.  While we may be getting beyond what the Occupiers' pot-addled brains can manage, let us now ask this question: are the wealthiest 1% and the most powerful 1% the same?  The short answer is that they are not, and that can be proven quantifiably.

Take as an example the mainstream media.  Objective academic studies have shown that the American mainstream media has a leftist bias.  We can quantify how this impacts the wealthiest vs. most powerful question by looking at the money value of time on news broadcasts.  The average cost for a 30-second advertisement on one of the network evening news shows is $36,000.  Let us then assume that two minutes of every 22 minute nightly broadcast reflects a left-biased viewpoint.  (I know that American Thinker readers will find that a gross underestimation, but we're conservatives, so let's be conservative here.)  To buy an equivalent amount of airtime on that news broadcast to present an alternate viewpoint would therefore cost $144,000.  To do that on the three major network news broadcasts plus CNN would cost $576,000 per night.  That's $2,880,000 per week, and over $140 million per year.  And that excludes the left-biased viewpoints of the rest of the TV networks' reportage, most major newspapers, the public television and radio networks, and the news magazines.  (For the record, advertising spots on evening news programs such as 20/20 are much more expensive.)

Now to put that in perspective, the average income of the top tenth of one percent of the population is $31 million per year, with the lowest income to get in this top one-thousandth being $11 million per year.  And those are pre-tax incomes.  Therefore, if one of these nasty "millionaires and billionaires" wanted to buy TV advertising to counter the left-biased reporting just of the national networks' evening news shows for one year, she or he would have to spend ten times their entire after-tax annual income.  Further, advertising carries much less persuasive weight than the supposedly "objective" reporting of the news broadcast anchors and reporters.  Look at it this way: who has more power and influence -- Brian Williams or some no-name real estate or oil developer? 

Another perspective on the power of this phenomenon comes from the mainstream media itself in Time magazine's annual lists of the most influential people.  Although they will throw in a token conservative for color, the lists are overwhelmingly dominated by leftist figures.  For example, the 2010 list put Bill Clinton as the most influential "hero" of the year.  Now, I readily acknowledge that being the spouse of a senior Cabinet secretary can probably be quite challenging, but why Bill and not Carole Sonnenfeld Geithner or Sharon Malone Holder?  Even more revealing is the list's top "thinkers" for the year.  Regulation queens Elizabeth Warren of Dodd-Frank and Lisa Jackson of the EPA were indeed very influential, but that was because of their government positions, not their wealth.  Here is another entire category of very powerful people who are not among the wealthiest.  And here again we can quantify the power of regulators by simply looking at American businesses' $1.7 trillion annual cost for regulatory compliance.  Even the entire 1% of the wealthiest could not cover that tab.

The list reveals still another category of very powerful people who are not in the 1% wealthiest -- federal judges.  Joining the regulatory czars on the list of most influential thinkers are David Boies and Theodore Olson, who are seeking to have gay marriage imposed on the entire United States by Supreme Court fiat, and Sonia Sotomayor.  Since Justice Sotomayor had only just joined the Supreme Court and was not any more important than any other federal appellate judge before then, it is hard to see how she would be considered more influential than the eight Supreme Court justices who were left off of the list. 

However, here we have some help in the form of a recent book by Harvard Law School Professor Randall Kennedy called The Persistence of the Color Line.  This is one of those books which mainly explains why criticism of President Obama by white conservatives is based on racism.  (Professor Kennedy criticizes President Obama for pandering to this racism, but it's OK for the professor to criticize the president because the professor is a black liberal.)  However, in one chapter, Professor Kennedy explains why Justice Sotomayor is so important.  She is, he writes, "one-ninth of the living Constitution."  Supreme Court justices "are not the most learned or brilliant jurists in the country.  They are simply the most powerful.  Their power elicits sycophancy that bestows upon them unearned intellectual honor.  Lawyers or judges who merely had thoughts one day have a 'jurisprudence' the day after they assume office as justices" where they "are indeed policymakers."  Of course, in her confirmation hearings, Justice Sotomayor claimed that she saw her role as strictly one of interpreting the law, not making it, but Professor Kennedy states that she was lying, "saying whatever she calculated it was expedient to say regardless of what she actually believed" in order to get confirmed. 

Indeed, this goes beyond having one of five votes needed to reinterpret the Constitution.  As Newt Gingrich explained at the Values Voter Summit (transcript here, video here), where "the Supreme Court is split 4-to-4 between liberals and conservatives, then when Justice [Anthony] Kennedy gets up in the morning, he becomes a one-person Constitutional Convention.  If he gets up and he feels conservative that day, it must be a conservative Constitution.  If he gets up and he feels liberal that day - this is an absurdity."  

Newt is right that it is absurd, but it is also how our system works today.  Being able to irrevocably reinterpret the Constitution, such as by adopting Boies and Olson's argument that gay marriage is constitutionally mandated, is very powerful indeed.  Even Barack Obama does not have this power.  And I am quite certain that Justice Kennedy (no known relation to the professor), is not among the 1% wealthiest.  However, when it comes to power over our fundamental law, there is no "percent" about it.  He is simply the "one."

James W. Lucas is an attorney and the author of Timely Renewed: Amendments to Restore the American Constitution.  He blogs at www.timelyrenewed.com.