July 2, 2020

Harvard Journal on Legislation Publishes Whitehouse Article on Dark Money Capture of U.S. Courts

In new article, Whitehouse calls on Congress to address lack of transparency in the federal judiciary


Washington, DC – Today, Senator Sheldon Whitehouse (D-RI) released an article published in the latest edition of the Harvard Journal on Legislation that details corporate interests’ capture of our federal judiciary and proposes a range of legislative solutions to counter it.  In Dark Money and U.S. Courts: The Problem and Solutions, Whitehouse traces the history of corporations’ campaign to wrest control of the courts by funneling anonymous “dark money” through a complex web of trade associations, front groups, and political organizations.  Whitehouse points to examples of legislation Congress can enact to increase transparency and preserve our democracy.

Our Founders knew that patriotism could be overborne by selfish impulses and personal passions; that foreign governments and rapacious elites could exploit weak institutions; and that sharp differences divided the thirteen colonies,” Whitehouse writes. “They planned for a lot of threats and dangers—but they did not plan for the corrupting power of corporations.”

The web of dark money trade associations, front groups, and political organizations that Whitehouse outlines spends billions of dollars a year on efforts to control government.  This anonymous spending goes toward lobbying, electioneering, judicial selection, and other activities that control government functions and drown out the voices of citizens, making it harder for the public to hold special interests accountable. 

Increasingly, corporate forces have focused on the courts, where they can achieve policy outcomes that would be impossible in the executive or legislative branches of government—branches accountable to voters.  As Whitehouse explains that in the courts, “[t]hese interests seek to maintain, and indeed further entrench, the corporate-friendly outcomes into which they have invested hundreds of millions of dollars.”

Whitehouse describes how the “conservative legal movement” has already yielded hugely consequential returns for its investors.  Whitehouse points out how the Supreme Court under Chief Justice John Roberts has handed down 80 partisan 5-4 decisions in favor of the Republican Party and big corporate interests.  These victories follow a decades-old campaign – led by the Federalist Society and its co-chair Leonard Leo – to groom, vet, select, and campaign for judges amenable to corporate and right-wing donor interests.

The effects of the corporate, right-wing capture scheme have extended throughout the federal court system.  The Senate has confirmed 200 life-tenured federal judges—at a record pace—while Senate Majority Leader Mitch McConnell has buried bill after bill passed by the House of Representatives.  Of the more than 350 Democratic Majority House-passed bills McConnell refuses to bring to a vote, nearly 90 percent have bipartisan support.

The article offers a range of steps Congress can take to build greater transparency into the judicial system and protect the system from political influence.  Whitehouse points to his AMICUS Act, which would force repeat amicus curiae brief filers to disclose their big-donor funders; and his Judicial Travel Accountability Act, which would require judicial officers’ financial disclosure statements to include gifts and reimbursements for lodging and transportation expenses. 

We must be clear-eyed about the hurdles these reforms face,” Whitehouse concludes.  “Enormous effort has been put by large and powerful interests into a fifty-year project to capture the courts. These interests seek to maintain, and indeed further entrench, the corporate-friendly outcomes into which they have invested hundreds of millions of dollars.  Transparency is inconsistent with their scheme.”

This article follows a recent Whitehouse report on dark money and our captured courts system released with Senate Minority Leader Chuck Schumer (D-NY) and Democratic Policy and Communications Committee (DPCC) Chairwoman Debbie Stabenow (D-MI), available here.

You can read Whitehouse’s analysis and ideas for reform here


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