March 27, 2017

Whitehouse to Gorsuch: Citizens United Itself Impedes Action on Dark Money

‘Once you let certain political interests achieve the kind of dominance that Citizens United has let them get, they can start to assert disproportionate control over Congress’

Washington, DC – During his second round of questioning of Supreme Court nominee Neil Gorsuch today, Senator Sheldon Whitehouse (D-RI) laid out the central challenge in ridding our political system of the unlimited secret spending—or “dark money”—unleashed by the Citizens United decision: that dark money makes it harder for Congress to act.  Gorsuch had earlier raised the point that Congress is able to mandate disclosure of those behind dark money spending in politics, as the Supreme Court has noted in past decisions. 

“Congress can demand disclosure,” Whitehouse said. “Here’s the problem.  In the same way that a small competitor can be crushed by a dominant business in the economic market, once you let certain political interests achieve the kind of dominance that Citizens United has let them get, they can start to assert disproportionate control over Congress.  And now Congress can’t do that any longer, because there is no longer a fair playing field.  If the Court can rebuild a fair and competitive playing field, then maybe we can do something about it.  But to say to Congress that you should solve this, while at the same time the Court has put Congress in a position where it can’t solve it—because the unlimited power and the secret money of these interests is such a powerful and pernicious effect—is something that I’d like you to be thinking about as a point if you get to the Court.” 

Whitehouse also stressed that major corporations must not control the Supreme Court at the expense of individual Americans.  “You said earlier sometimes—and I think I’m quoting you correctly—big corporations can capture an agency,” said Whitehouse to Gorsuch. “That’s a well-known principle of administrative law and of economics.  Just let’s be sure that our Supreme Court doesn’t get to be one of those agencies that’s captured on any subject.”

In his third round of questions, Whitehouse raised the importance of the Seventh Amendment guarantee of access to the civil jury.  A series of recent 5-4 decisions from the Supreme Court has eroded that access, often forcing individuals into alternative proceedings that are more favorable to corporations – like mandatory arbitration.

“De Tocqueville described the jury as a political institution,” said Whitehouse.  “He called it part of our ‘polis’—part of the way in which the public had the chance to participate in making decisions.  He called it part of the sovereignty of the people.  Blackstone, who was probably the single jurist who most educated the founding generation, said that the civil jury is ‘what prevents the encroachment of the more powerful and wealthy citizens.’ This institution is the one that is designed to protect the individual against other more powerful and wealthy citizens and in this case our most powerful and wealthy citizens are these ginormous corporations.”

Whitehouse continued, “So I would urge that as you consider this array of cases that chips, and chips, and chips, and chips away at the civil jury access that regular Americans have, particularly where it involves big corporations because they’re the ones that can force mandatory arbitration on people . . . that you bear that in mind.”

Video of Whitehouse’s second and third rounds of questions is available here and here 


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