June 22, 2021

The Scheme 3: Latent Virus

Mr. WHITEHOUSE. Mr. President, I am delighted to follow the majority leader and his strong remarks about the beginning of the process of passing S. 1, not only to deal with the question of voting rights but to deal with the question of the dark money plague that is infesting our democracy and taking the power over decision making in this body and in this building away from regular people and putting it into the hands of not only special interests but of special interests who are happy to operate in secret.

One of the ways in which this power has been deployed has been with respect to the judicial branch of government. And I am here now for my third speech in “The Scheme” series to draw attention to this problem.

In the first two “Scheme” speeches, I described the corporate power game plan offered by lawyer Lewis Powell to the U.S. Chamber of Commerce and the subsequent effectuation of that game plan by Justice Lewis Powell, appointed to the U.S. Supreme Court 2 months–2 months– after his secret corporate power game plan went to the chamber. The execution of the Powell plan was one of three converging threads that led to the scheme to capture the Court.

The Powell plan, thread one, was a political response recommended for America’s traditional corporate elite, which had been traumatized by the social upheaval of the 1960s. The second thread, thread two, was a separate strain of American ire that had been simmering on our society’s fringe for many decades. The extremists on this simmering fringe were traumatized by things long accepted as mainstream by most Americans.

The fringe resentments shifted with the varying tides of news and events but regularly boiled over against several targets. One was the role of Jewish people in finance, the press, Hollywood, and–after FDR–in government. Another was the improving economic and social condition of minorities. Another was the arrival of immigrants, particularly non-European immigrants; but backlash to immigration from Ireland and Italy had been profound, as my home State experienced back under the Know-Nothings. Other resentments sprang from imaginary events, conspiracy theory delusions, and crackpot ideas.

This persistent strain along the American fringe was chronicled in Pulitzer Prize-winning Richard Hofstadter’s 1964 essay, “The Paranoid Style in American Politics,” later a popular book. This latent strain of paranoid extremism showed itself in groups like the John Birch Society, which never gained social or political acceptance. It was fed and nurtured by a handful of rightwing foundations set up by a few colossally rich and politically irate and frustrated families. It boiled up in the Presidential campaign of Senator Barry Goldwater, which ended in one of the worst landslide defeats in American history. It drove the occasional aspirations of the Libertarian Party, whose extremist platform suffered predictable but humiliating crushings at the polls. All of this defeat, over all of these decades, concentrated the strain, isolated its most persistent and determined elements, and added to it an emotional payload of resentment.

One target of this fringe was the existence of government regulation. The Libertarian Party, in 1980, ran on a platform of ending Social Security, ending Medicare, closing the post office, undoing the American highway program, stopping public education, and eliminating all our public regulatory agencies–even the Federal Aviation Administration that keeps planes from bumping into each other.

This platform barely attracted 1 percent of the vote, an unsurprising but humiliating crushing. That humiliating crushing was suffered by David Koch, Libertarian Party candidate for Vice President, and the party’s major funder. The Koch family is spectacularly, unimaginably rich. Privately held Koch Industries pours hundreds of millions of dollars into their pockets every year. The family annual income exceeds most families’ dreams of lifetime wealth. The Kochs have social ambition, putting their names on educational TV programs, art centers, and university buildings. They are not the sort of people who take humiliation well. They are also not stupid, and the family has long and sometimes dark international experience, including odious efforts in previous decades to build factories for evil regimes.

Made confident by the arrogance of wealth, driven by extremist ideology, spurred by the resentment of humiliating political rejection, experienced in the devious ways of the international world, steeped in the corporate skills of long-term planning and patient execution, and with unlimited resources to indulge themselves, the Koch brothers, Charles and David, were uniquely positioned to take this longstanding, latent, extremist fringe and amplify it and direct it, by plan, in secret, and over decades if need be.

If front groups needed to be set up, so be it; subsidiaries were a familiar concept. If identities needed to be laundered off money they gave, so be it; telling lawyers to find or design a way to do that was familiar. If fringe groups needed to be coordinated to work collectively with each other, so be it; organizing with others through trade associations and lobbying groups was familiar activity. And if money needed to be spent, well, so be it; money was no object, and getting people to do things for you for money is a familiar practice of the very rich.

The nurture and guidance of the Kochs breathed new strength and life–and deregulatory purpose–into the nativist far-right fringe. Meanwhile, in the regulatory arena, waited the third of the three threads. Major corporate interests–from the railroads first to banks, chemical companies, and polluting industries–had assembled, over time, a quietly powerful presence to help them in administrative Agencies; to make sure that regulation was friendly to business, and, even more than that, under the right circumstances, with the right people and pressures, could be turned to advantage of the regulated industry.

In administrative hearings and rulemakings, regulated industries regularly outgunned public interest groups. Law firms dedicated to this lucrative corporate regulatory practice sprouted. Gleaming stables were kept of well-tended professional witnesses who could reliably spout the corporate line in Agency proceedings.

Companies played the long game in these regulatory Agencies, of accreting minor victories, step-by-step, inch-by-inch, but that together summed up to major gains. Many of these gains were deeply buried in the weeds of arcane policy and technical detail, inscrutable to the general media and so invisible to the general public.

Revolving doors spun between regulatory Commissions and industry, so that Agency decision makers often reflected the values, priorities and interests of the regulated industry, not the general public. At the extreme, the regulatory Agency became servant to the industry master–a phenomenon well known and well documented as regulatory capture. I wrote a separate book on this, “Captured,” so I won’t dwell on it at great length here. It is enough to note that regulatory capture is so common that it has been a robust field of academic research and writing now for decades, both in economics and in administrative law.

So these three socioeconomic strands converged. America’s regular corporate elite took up the Powell memo strategy of emboldened political engagement, seeking to reclaim their power and restrain the unwelcome changes roiling American society. The extremists of great wealth brought to the rightwing fringe and its motley array of extremist groups an unprecedented strategic discipline, unlimited resources, and the tactics of hard-edged corporate organization. The regulatory capture apparatus was there for the hiring, eager to pursue the new prospects offered by big industries and eccentric billionaires. Out of this slumgullion of immense wealth, extreme political ambition, and expertise at regulatory capture, how long would it take for people to start thinking about capturing not just regulatory Agencies but courts–indeed the U.S. Supreme Court?

As it turned out, not long. The Court had made itself a target of the rightwing. Brown v. Board of Education provoked massive resistance across the South out to defend segregated public schools. Roe v. Wade provoked, as it still provokes, the religious right. So did Engel v. Vitale, restricting prayer in schools. Griswold v. Connecticut offended those upset by the sixties sexual revolution. Miranda v. Arizona, Mapp v. Ohio, and Gideon v. Wainwright offended the tough-on-crime crowd. To the far right, the Supreme Court offered a bounty of things to hate. Even without the Powell Memo’s corporate plan of “exploiting judicial action” “with an activist-minded Supreme Court,” the Court would likely have been an irresistible target.

But with that plan and that recommendation, it began to come together. And so the scheme was launched, fed by three political tributaries: one, the corporate plan in Lewis Powell’s memo to the Chamber; two, the resurgent Koch-powered, far-right fringe; and three, the eager, available mercenaries of regulatory capture.

The effort to capture the Court has likely been the most effectual deployment of rightwing and corporate resources into our common American political life, and America is now a very different place as a result of it. Much of it, like the proverbial frog in the proverbial pot, we have even gotten used to, and we accept it now as normal, when it isn’t.

To be continued.

I yield the floor.