An interview with author Senator Sheldon Whitehouse on his new book on how the Right Wing captured the Supreme Court with dark money
Senator Sheldon Whitehouse of Rhode Island doesn’t shy away from debate. Perhaps this shouldn’t have surprised me – he’s a former attorney after all. But I was surprised, nonetheless. Media coverage of politicians often involves sound bites of deflection – clips of frustrating, not-quite-answering-the-question responses. So, when I sat down to ask Sen. Whitehouse about his new book, The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, experience told me he would deflect as well.
For the most part, Sen. Whitehouse – who is a member of the Senate Committee on the Judiciary, among others – did not give me those kinds of answers. I read his book, which he co-wrote with Jennifer Mueller, looking for holes and tensions in his argument, and (hopefully) my questions reflected that. It was, indeed, my intention to “grill” him, as he says at the end of the interview, and I’d say he withstood that grilling. Or as a philosopher would put it: He was a good interlocutor.
As a former journalist now researching journalistic practice through the lens of philosophy, since the interview I’ve been thinking a lot about what’s needed to cultivate an honest exchange between a politician and a journalist – a conversation of substance, not of sound bites – that also engages and informs readers. There are plenty of pieces in that puzzle, but here, I think, are two important ones.
First, time. Journalists need time to prepare thoughtful, well-researched questions – questions that bring out the nuance of the topics at hand. And politicians need time to get a grip on the topics they’re going to be grilled on. The interview itself must also be long enough to permit getting into the gray. And last, but not least, the reader needs to have the time to read the piece. I can say time was on my and Sen. Whitehouse’s sides. I hope it’s on yours as well.
Second, a commitment to being a good interlocuter – both the journalist and the politician. What does that mean? Examples usually speak louder than adjectives. Hopefully, the interview below provides a picture of what being a good interlocuter entails. But, in short, I think it involves listening to and respecting one’s debate partner, knowing what you’re talking about and having the freedom and ability to clearly articulate your ideas.
So, do I buy his argument? I’m not sure. Do I think dark money has flooded politics? That’s an obvious yes. Do I think the Right used dark money in an organized way to capture the Supreme Court? The verdict is still out on that one for me. As he admits in his book, Sen. Whitehouse relies mostly on circumstantial evidence. While this evidence may not win my full-blown belief, it does demand more digging. However, whether or not we buy his core argument, the solution remains the same – get dark money out of politics.
I interviewed Sen. Whitehouse after a panel event on December 9 associated with the Penn Center for Science, Sustainability and the Media (PCSSM). He was joined by Michael Mann, the PCSSM’s director; Kathleen Morrison, Chair of UPenn’s Department of Anthropology; and Joseph S. Francisco, a Professor of UPenn’s Departments of Earth and Environmental Science and of Chemistry.
The interview has been condensed and edited for clarity.
OpenSecrets reported that Democrats raised more dark money than Republicans in the 2020 election. You admit this in your book, while also mentioning a comment that a Republican senator made to you: “‘Democrats had better start raising a lot more dark money,’ if “we wanted to do anything about it.” Here’s the tension I see: Given the way that the game is played, you’re likely going to lose if you don’t raise dark money. But if you do raise dark money, then the public’s going to see Democrats as corrupted as well. Do you worry about that?
Imagine peewee football. One team goes out on the field, but they also bring baseball bats. When the ball is hiked, they whack the other team with the bats. That team would win really quickly. So, we have to bring baseball bats, too, in order to not be blown off the field.
The misdirection here is to focus on who’s using dark money. The real focus should be on who lets dark money onto the field – who requires it and protects it. The vote that we just had on my DISCLOSE Act makes it pretty clear – we got every single Democratic vote. We couldn’t get a single Republican to vote with us.
I think the failing of Democrats is not in using dark money ourselves, rather than letting ourselves be blown off the field. I think our failure is not understanding how important an issue this is both to our country and to the public and giving it the prominence that it deserves, so that we put real pressure on getting the baseball bats the hell off the Pee Wee football field.
The ACLU didn’t support the DISCLOSE Act. In a 2010 letter to the Senate, it claimed the bill “fails to preserve the anonymity of small donors, especially chilling the expression rights of those who support controversial causes.”
That’s false because the bill actually has a $10,000 floor. So if you think that somebody writing a $10,000 check is a small donor, well, we can have an argument about those terms. But I think what ordinary people think of as a small donor, we don’t even touch.
Why do you think the ACLU continues to oppose it then?
I don’t know. They go back to a case that’s important in ACLU legend: the NAACP membership case. In that case Alabama wanted the membership lists of the NAACP. At that time of state-sponsored violence against civil rights actors and against Black people in general, the NAACP sued and said, if we’ve got to give up all of our members, there’s a real danger that people are going to go to their doorstep with a can of gasoline or put a bomb in their basement, like they did to the churches.
The decision there – no, we’re not going to let that list out in this circumstance – was the correct, proper legal decision. But I think it’s not the same thing when a billionaire uses a front group to manipulate American politics to his advantage.
If the $10,000 isn’t the right break point, then maybe it should be $100,000, but at some point this business of anonymized manipulation of politics has to stop because it degrades citizens’ ability to understand what’s going on around them.
Speaking of citizens, I wanted to ask you about Citizens United v. Federal Election Commission.
My least favorite decision.
In chapter 19 of your book, you address principles conservatives say they stand for, precedent being one of them. In fact, you say respecting precedent is at the “heart of the court’s legitimacy.” But you write that the conservative Supreme Court has repeatedly disrespected precedent, the overturning of Roe v. Wade being one example.
And Shelby County v. Holder, and on you go.
But you simultaneously argue that there are some court rulings that we should overturn, and I’m guessing Citizens United would be among them.
Absolutely.
So, how do you walk the line between rooting out what you’d call problematic rulings, but also stick to precedent?
If you brought together a panel of really respected lawyers and legal academics, you could whittle down to the fingers on one hand the number of cases where it’s widely accepted that something seriously went wrong with the Supreme Court’s opinion. So, the number of precedents that would have to be overturned to make things right is actually very small.
If you look at some of the real stinkers, they have a common flaw, which is that they stand to a significant degree on false factual premises. Why is that important? That’s important because as a matter of law, fact finding is not a role that belongs in appellate courts at all. It belongs in district courts. So, when the Supreme Court goes about fact finding, it’s in an off-limits area.
When the facts that it finds are provably false, then, not only are they in the off-limits zone, but there’s no factual credibility to their finding. So, there’s a principled way to look at those decisions and say – this decision needs to be struck down because of the false factual premises upon which it is structured – without throwing out precedent as a general proposition.
What then is the false fact in Citizens United?
The false facts in Citizens United are that the unlimited political spending the decision unleashed was going to be independent of political campaigns and transparent to the public. Neither is true. You have to rely on groups like Campaign Legal Center to explain how independence isn’t there because it’s a little bit complicated.
But the transparency piece is blindingly obvious. All you have to do is look at the so-called outside spending that’s taking place in the political races that just concluded. There is demonstrably non-transparent spending happening in our elections. So, there’s no doubt that that premise of the decision was wrong, and wrong not just at the fringes – it’s billions of dollars. It’s a systematic flood of hidden special interest influence. You really can’t get much falser than that.
Speaking of transparency, Mike Mann asked you a question about the role of the media in bringing to light dark money actors. As you noted, the media are under intense financial pressure, especially local news, and, for that reason, may not be as able to uncover corruption. Given that transparency is so important to you, and given that a central role of journalism in democracy is making the system more transparent, would you support more public funding for journalism? Or are there other solutions?
One obvious solution we hope to pass into law this year allows small media outlets to gather together and gives them an exception from anti-trust laws. They can then say to Google, Facebook and other big tech platforms – if you want our content, you’ve got to pay us – in the same way that a musician can say to a radio station you can’t play my song without paying me. I think this is a way to restore the market balance, so that revenues go back to newspapers.
That would be an easy first step where you don’t have to face the danger of a government-controlled media, like in Putin’s Russia. There’s going to be a lot of anxiety about too much government funding going into media outlets. I think we steer clear of that problem by fixing that market dysfunction. I think there’s a real likelihood of getting that done.
You mention multiple times in your book that some practice by the Right isn’t normal. It’s how you put together the circumstantial evidence that makes up your argument. So, that made me think, if I can find one instance where you say something isn’t normal and it is, then that’s a hole in your argument.
Right, exactly.
I may have found one and I’d like to hear your response to it.
Go for it.
In chapter 12 of your book, you discuss so-called ‘plaintiffs of convenience.’ You write, “When you start with the case and then go looking for the client, that’s abnormal, a sign of an ulterior purpose. Lawyers for the conservative movement make no bones about the fact that they’re challenging a law or policy that they just don’t like.” But plaintiff finding is a regular practice of civil rights movement actors and a big part of test-case litigation in general. In short, it does seem like a normal practice.
There are two points to make on this. The first is that just because two different groups do something abnormal, it doesn’t make it normal. And second is it’s totally not normal for people to come into court to seek to lose a case. That’s just not how the system works. Trying to lose is a very telling signal about what the litigants expect from the Supreme Court. Then throw in that after the Janus case I think the plaintiff of convenience was now on the payroll of the litigation group.
So, when you add up – wanting to lose, plaintiffs of convenience, putting the plaintiff on the payroll, having front groups litigating who don’t disclose who their donors are so the costs are absorbed by someone who’s not even in the court room – that puts up enough red flags. The court should have been more cautious about taking cases that come up to it that way. Instead, it welcomed those cases and provided them with a fast lane.
I’m also concerned that the continual finger pointing of the Left at the Right, and vice versa, is at the root of polarization. When you write a book as a Democrat pointing the finger at the Right wing, do you worry about contributing to polarization?
I’d go back to the analogy I used during the panel: If you think of our Congressional sphere as a playground, there are areas of the playground in which bipartisanship is possible and areas in which it’s impossible. Having been in Congress a while, I’ve seen that boundary shift. It shifted very abruptly on climate change after Citizens United. It went from being very bipartisan with lots of bills kicking around to 100 percent partisan with no Republican participation in any serious climate measure. Like that [snaps fingers] you could see the shift.
When you see a shift that sudden, you can’t help but look at why, and there you see the fossil fuel industry. It happened exactly coterminous with the Citizens United decision, which I believe the fossil fuel industry saw coming. They were ready day one to go into Mitch McConnell’s office, to go into the Speaker of the House’s office, and to say – you will have unlimited money from us if you knock off this climate bullshit, and we will torture anyone on your side who crosses us on this, and you, as the leaders, need to enforce this as party policy.
So, in a situation like this – where they’re spending at least tens, probably hundreds of millions of dollars, in every election – if you don’t go at that outside force that is putting pressure on colleagues, you’re never going to win the battle. I would actually make the argument that the more pressure I can put on the fossil fuel industry – the more I can call out its maligned behavior, the more I can make people suspicious of the industry and make it flinch back from its political influence mischief – the better the chance for bipartisanship.
In fact, Republicans might even be blinking at me that they’d like to help, like the guy in the prison camp who blinked in morse code ‘torture.’ Pretty heroic. There are Republicans who I have a good enough relationship with that I get the equivalent of that blinking.
There are countless conspiracy theories devoted to the idea of a deep state. Often people are told they’re crazy for believing them, but your book implies they might not be. For example, you write of “a system increasingly rigged with shadowy forces.” You do lay out evidence, but I worry that your book might support conspiratorial thinking generally, even if you’re right. How do you expose corruption, but avoid fostering conspiratorial thinking?
It’s hard to expose corruption without raising the notion that there is corruption. That’s sort of a self-proving thesis. The problem with the deep state argument is that it implies that the mechanism of government itself – the staff people, the career servants – are themselves the problem. But the problem is outside influence being brought to bear on those people. And you actually saw a lot of resistance from within the agencies to some of the weird Trump stuff because they knew it was wrong, if not illegal.
If you want to weaken government, and, therefore, make it more vulnerable to these special influences coming from outside forces, then having the American people think that those government staff folks – career civil servants and employees – are all a bunch of weird deep state aliens who are answering to some unknown master some place, that’s a really good narrative.
So, a lot of what your book is about is power: Corporate power. Supreme Court Power.
Totally. That’s the currency we’re dealing with here.
What’s the solution then? Do corporations have too much power? Does the Supreme Court have too much power?
I think the Supreme Court has way too little accountability. I think that the segment of corporate America that wants to play hard in politics has way too much power, and I think citizens have been dramatically deprived of power by being deprived of the ability to put the jerseys on the players and know who’s saying what on whose behalf.
There’s absolutely nothing in the Constitution – in the Philadelphia debates or in the Federalist Papers – that suggests any role whatsoever for non-human persons in American democracy. None. Not a whisper of it.
Corporations are not people?
Corporations are not people. They are not part of “We the People,” and they have no business in politics as the founders saw it. The role of corporations in our politics has been the creation of Republican appointees on the Supreme Court, beginning with Justice Lewis Powell and working their way through to the current court. One could easily envision a politics in which corporations had no role. One could very readily envision a politics in which, we’re going to give corporations a role, but they’re damn well going to tell us who they are instead of operating through some phony front group.
Is there anything you want to add?
No you’ve grilled me to the ground. I have nothing left.
Well, thank you Senator Whitehouse.
My pleasure.