Dark Money and the Supreme Court

by John M Repp

Senator Sheldon Whitehouse was elected to the U.S. Senate from Rhode Island in 2007. He wanted the Senate to act to mitigate climate change. Every month for nine years, when the Senate was in session, he spoke to the empty chamber making two hundred and sixty nine speeches, that are all available on YouTube. Here is the first one: Time to Wake Up | US Senator Sheldon Whitehouse | TEDxProvidence – YouTube where he talks about what is going to happen in Rhode Island as a consequence of climate change, specifically, the flooding of parts of the small state as the sea level rises.

 Sadly, the normal condition of the Senate chamber is to be empty because much of each day the Senators are on the phone asking the big donors for money. There is very little actual debate going on in Congress. Whitehouse’s concern was how come the Senate and the House was turned around on that most important issue of our time, climate change. He tells us there was in 2007 a bipartisan concern in Congress to mitigate climate change. For example, when Senator John McCain ran for President in 2008, he had a strong climate plank in his platform.

 The change started with the appointment by George Bush of John Roberts and Sam Alito in 2005 to the Supreme Court. Sadly, we remember that the first Bush “election” was decided by the Supreme Court itself when they stopped the vote counting in Florida and declared Bush the winner. We learned a few months later that Al Gore actually got more votes in Florida.

 Then five years later, in 2010, the Supreme Court delivered the Citizen’s United decision which is the legalization of bribery in our elections. After that, there was little serious action at the highest level of our government to deal with climate, or if there was, there were still more permits issued to allow oil and gas drilling on public lands. Bribery is still illegal in other situations. If an employee of a company offered his boss a barely used car from his father’s used car lot in exchange for a promotion on the job, that would be illegal. But bribery is now legal in politics after Citizen’s United.

 Whitehouse quotes a journalist’s description of the language in the Citizen’s United decision: that “ruling contains some of the silliest, wackiest, most preposterous pronouncements in the tens of millions of words extruded by the Supreme Court in its 229-year history.” This quote can be found on page 54 of The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court (New York: The New Press, 2022, written with Jennifer Mueller), Senator Whitehouse’s latest book.

 Here is the text that elicited that journalist’s comments: “(W)e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption… The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt… The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” (p.54)

 On what planet were these justices living? The whole point of large campaign donations for election campaigns and the work of lobbyists is to influence the thinking and the votes of Congress persons and Senators. This was the Supreme Court making up facts that are completely false, facts contrary to what political scientists have found over and over: money does corrupt politics. To be clear, a court case usually has two parts: deciding the facts of the case and then deciding how the law applies to the facts. Whitehouse tells us that too often this Roberts Court makes up facts.

 To explain further, in the case of electoral campaigns, “independent” means an organization separate from the election campaign organization directly controlled by the candidate. There are some regulations concerning the actual candidate’s organization, like limitations on the amount of money it can get from any one individual donor. The problem is that an “independent organization” can accept donations from other organizations that do not have to reveal the source of the donations or who the donors are. It is the layering of organizations and the sheer number of such organizations that makes the money dark.

Whitehouse writes his new book as if it were a legal brief. He says there is massive evidence for his claims, but just one gap in his argument. The gap is the amount of money and the names of the donors. That is exactly what the layers of organizations are designed to hide.

 The focus of the book, which is clear from the subtitle of his book, is the use of dark money to influence the composition and the decisions of the Supreme Court. Before that effort was made, the oligarchs learned how to control executive agencies, by getting their people appointed to positions in and even leaders of those agencies. For instance, they could promise good positions to the executives after their government service, if they “did the right thing”. But at that time, no one thought anyone would try to control the court system and even the Supreme Court.

 And then “the scheme” began. The first speech Whitehouse made in this series named “The Scheme” focused on the famous Powell memo: https://www.youtube.com/watch?v=mAplGu1RxPg The Scheme Speech 1: The Powell Report – YouTube. The Powell Memo, written in August 1971, was a response to the concern of the U.S. Chamber of Commerce about the “unrest” of the 1960’s that indicated a serious loss of legitimacy of American corporations. Whitehouse thinks that is the place to start describing the history of “the scheme”, which played out over a number of years, with many players.

 A key institution in the “scheme” was the Federalist Society, founded in 1982, to challenge what some right-wing law students perceived as the dominance of “liberal” ideology in the legal profession. Bringing the story forward into our time, it was the Federalist Society’s Leonard Leo who advised Trump on his three nominations to the Supreme Court, that consolidated the right-wing control of the Supreme Court.

 The Supreme Court is now controlled by six Republican appointees, what we still call the Roberts court. On June 24, 2022, that court disregarded fifty years of precedent when it overruled Roe v. Wade. And lately we have gotten many press reports about how some of the justices are taking expensive vacations paid for by right-wing political operatives. No one takes seriously the new ethics code they recently proclaimed. There is no enforcement mechanism. We can only conclude that SCOTUS (the Supreme Court of the United States) is corrupt, and they know it.

Our CIA ran many covert operations over the years to overthrow foreign governments that wanted to control their own natural resources or had a too democratic government. Now one reporter for The Guardian wrote on February 22, 2022 that what Senator Whitehouse calls “the scheme” was “a massive covert operation in and against their own country.”

Attributed to Supreme Court Justice Louis Brandeis who died in 1941. “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.”