July 13, 2021

The Scheme 4: A New Constitutional Right for Dark Money

Mr. President, this series of “Scheme” speeches is designed to chronicle a long-running, covert scheme to capture the Supreme Court. Regulatory Agencies have often and notoriously been captured by regulated interests. There is a whole doctrine of regulatory capture found in economics and administrative law that revolves around this history of the regulatory capture of administrative Agencies. So, if you can capture administrative Agencies to serve special interests, why not capture a court?

The trajectory of these “Scheme” speeches has been through time, beginning with the Lewis Powell strategy report to the U.S. Chamber of Commerce and then his enabling of that strategy as a Justice of the Supreme Court and then how the rightwing fringe was brought into organized alignment by the Koch brothers and then, of course, the link to this regulatory capture apparatus and its willing band of mercenary lawyers and witnesses.

Tonight, I interrupt that time trajectory to discuss two decisions just delivered by the Supreme Court, decisions that clearly reflect the patterns and purposes of the Court capture effort.

Let me start by saying that the single most important goal of this covert scheme is to protect itself. The apparatus behind the scheme may be put to innumerable political uses, but none of those political uses will be effectuated unless the underlying apparatus protects itself and stays operational. Survival of this operation is job one, and a core strategy for protecting its covert operations is camouflage.

To camouflage this scheme you need anonymity for the donors behind the operation. The scheme is blown if there is transparency. The clandestine connections among front groups become apparent, and the manipulating hands of the string pullers behind the surreptitious scheme become visible. Voters then see the scheme, understand the players and the motives, get the joke, so to speak, and the operation is blown. So anonymity–donor anonymity–is essential. Voters may hate big, anonymous donors, but big, anonymous donors need anonymity.

The term for this anonymous funding, now pouring by the billions of dollars into our politics, is “dark money.” This is a dark money operation, and if you are out to capture a court, you will want to make sure that court will protect your dark money–the camouflage for all of your covert operations. That is job one, which brings us to the Americans for Prosperity Foundation case.

The Americans for Prosperity Foundation is a central front group of the Koch brothers’ political influence operation. It sued to prevent California from getting access to donor information of the so-called nonprofits, like itself, that, since Citizens United, have provided screening, anonymity for the megadonors behind their political efforts. For these political groups, donor anonymity is vital for the scheme to function.

Now, one of the ways the dark money operation signals its desires to the Court is through little flotillas of dark money groups that show up as what are called friends of the Court–“amicus curiae,” to use the legal term–to provide guidance to the Justices. Little flotillas of dark money groups showed up in Cedar Point, in Seila Law v. CFPB, in Rucho v. Common Cause, in Knick v. Township of Scott, in Lamps Plus, in Epic Systems, in Janus v. AFSCME, in Husted v. Randolph Institute, and in a host of other cases. In each case, the little signaling flotilla showed up. In each case, the Court delivered a partisan win for the little flotilla. They usually number a dozen or so, and it is happening in plain view, except that what is not in plain view is who is funding the little orchestrated flotillas. That, the Court helps to keep secret.

So these signaling flotillas that appear in these cases and generate these partisan victories usually number about a dozen but not in the Americans for Prosperity Foundation case, not in this case. In this case, 50 of them showed up–50. I think that is a record, kind of a personal best for the dark money armada, and they showed up early on, at the certiorari stage, at the stage when the Court decides whether or not to take the case–50 dark money groups showing up at the certiorari stage.

This was a blaring red alert to the Republicans on the Supreme Court as to how important this case was to the dark money operation. Sure enough, just like in all of the other cases I mentioned, the Court delivered. The Republican Justices on the Supreme Court just established a new constitutional right to donor secrecy, and they did so for a group, the Americans for Prosperity Foundation, that is flagrantly involved in rightwing political mischief and manipulation– flagrantly involved.

The Americans for Prosperity Foundation group’s operating entity had actually even spent millions of dollars just last year to help get Justice Barrett confirmed. They are so brazen about this that they actually used the Americans for Prosperity Foundation as the named party, not some benign, nonpolitical entity that they could have dredged up. No, they took the bet that this precedent of a politically active manipulator being the named party would not faze the Republicans on the Court, and they would be able, with that partisan majority, to gain a legal foothold for their dark money political spending.

There are few things that enrage the American public more than crooked, dark money political spending. If you tried to get a dark money political spending bill through the Senate, you couldn’t do it. If you tried to get it through the House, you couldn’t do it. If you put the Senate and House under Republican control, you still couldn’t do it, but if you have captured the Supreme Court and have sent 50 dark money groups in a big signaling armada and have told them what you want, then a decision that is as unpopular and enraging as this decision comes your way, and they pulled it off in plain daylight.

Justice Barrett even declined to recuse herself–that is how brazen this is–despite the Caperton case precedent of recusing in cases involving parties who spent millions to get you on the Court. Not a peep about that conflict of interest. Not a peep about that effective repeal of the Caperton case.

This Republican majority completely ignored the assertions of the Republican majority that gave us Citizens United: that transparency and political spending is our protection against corruption. That was the hook for Citizens United: Don’t worry, folks. We can let unlimited amounts of special interest money pour into politics, and it won’t be corrupting because it will be transparent. Everybody will see or hear at the end of the ad: “I am ExxonMobil, and I approve this message.” That was the trick of Citizens United.

I suppose you could say that it was a safe bet that this Republican majority would not be concerned about donor transparency the way the Citizens United Republican majority was, because the Republicans on the Court, after Citizens United, turned a completely blind eye to billions of dark money dollars that poured into our politics.

They had said that was corrupting, but every chance they got to impose their own decision and clean up the dark money corruption, they scrupulously refused to do it. They did not or pretended not to see it.

So if you are this apparatus and you think you have captured the Court and you look at the blind eye that had turned to these flagrant, constant, massive violations of the supposed Citizens United transparency principle, you take your shot, and they did. And what it looks like now is that it was window dressing in Citizens United to pretend to care about transparency, and what it looks like now is that this new Republican majority has tossed even that window dressing into the dumpster.

This Americans for Prosperity Foundation decision looks totally outcome driven–not applying the law, but changing the law to favor dark money–and the decision was on a purely partisan basis, all the Republicans.

The end result here is that this dark money empire that spends billions of dollars in our politics has just been given by the Republican Justices a legal tool to fight disclosure, stall exposure, and protect the clandestine nature of its covert political operations.

Remember what I said, job one? This is job one. This is the dark money apparatus’s pearl beyond price, and the Court–at least the Republicans on the Court–delivered.

And it is notable that this dark money-funded operation that just got this big and novel win had a big hand in putting the last three Justices on the Court. Much of how they did it is hidden behind dark money screens, but what we do know is chilling.

The Federalist Society took in tens of millions of dollars in dark money while it was being used as the private political turnstile to control who got nominated to the Court. The Judicial Crisis Network took dark money donations, some as big as $17 million, to fund ad campaigns for the nominees selected by the Federalist Society’s special interest turnstile to get them confirmed to the Court. Who writes a $17 million check for that?

And, of course, floods of dark money poured into the Republican Party as Leader McConnell smashed and crashed his way through any rule, any precedent, or any practice of the Senate that stood in the confirmation path of these dark money nominees. Truly, this Court is, today, the Supreme Court that dark money built, and it just delivered for the dark money interests.

The dark money link to the Republican Party brings us to the second case. This case, Brnovich v. DNC–Democratic National Committee– involved voter suppression laws passed to discourage minorities from voting. Why would anybody want to do that? Because today’s Republican Party has settled on voter suppression as its path to power. Across the country, you see it. Republican-controlled legislatures have swiveled in unison to pass voter suppression laws in their States all at once, as if on signal. And guess what. Dark money groups have been caught taking credit for this coordinated swivel, describing how they worked through local sentinels, describing how they drafted the legislation for the local Republicans, and describing how they were able to do so surreptitiously.

The voter suppression fixation of Republicans in all these State legislative bodies is quite plainly a coordinated activity, and equally plainly it has the dark money apparatus behind it.

Here is another example: After a Washington Post expose blew his cover, the operative at the center of the dark money Court-packing scheme vacated that role. The article was pretty tough. He got burned pretty good. So he fled. And where did he go? He moved straight from Court packing to voter suppression.

Don’t worry, he didn’t have to go very far from his Court-packing roots. The group he went to is called, in fine Orwellian fashion, the Honest Elections Project. What is the Honest Elections Project? It is a corporate rebranding of something called the Judicial Education Project, which is, in turn, the corporate sibling of–yup, you guessed it–the Judicial Crisis Network, the group that was getting the $17 million checks to run the Court-capture dark money advertising campaigns. The former Court-packing group is the corporate kin of the honest elections voter suppression group, and the same guy just hopped from the one to the other.

The Washington Post expose, by the way, chronicled $250 million in funding for this dark money Court-capture operation through its network of groups. So whoever is behind this, they are not playing around, and $250 million is an immense sum.

So when Mr. Court Capture shows up as Mr. Voter Suppression in a repaint of one of his Court capture vehicles, you can guess that his voter suppression effort will have plenty of dark money too.

So with this as the background, the Republicans on the Court served up yet another blow to the Voting Rights Act. They allowed States to pass even more voter suppression laws. They allowed them to pass even voting laws conceded to impede minority voting. The purpose of the Voting Rights Act is to protect voters’ rights to the polls and particularly minority voters’ rights to the polls because of decades of discrimination and suppression that kept minority voters away from the polls.

In this case, they said: No, it is OK. If the decision is conceded to fall unfairly on minority voters, still good. The author of this partisan majority decision, even for good measure, threw in the totally unsupported and perhaps even fraudulent Republican political talking point that voter fraud is presently a big hazard demanding our attention.

So it was a very big week of very big rewards for a very big dark money apparatus. When those two decisions came down, the upshot was simple. The dark money apparatus that put the last three Justices on the Court desperately needs dark money to function. And the Court that dark money built just built dark money a new home in our Constitution. And the dark money apparatus that put the last three Justices on the Supreme Court desperately needs Republicans to win elections to work its political will, and the No. 1 Republican strategy going into 2022 is voter suppression. And the Court that dark money built just kicked into the Voting Rights Act another hole allowing more voter suppression.

It has been said that these Justices up on the Supreme Court are there just calling balls and strikes. Yeah, right. They are not just calling balls and strikes. In case after case, over and over, in a consistent and predictable pattern, they are changing the shape of the ballfield. They are tilting the ballfield steeply to help one side, and they are doing grave damage to important safeguards of democracy in the process.

These two cases, ignoring precedent and delivering big political wins to the dark money apparatus through a partisan Republican majority, show the game in play and the Republican Justices as players.

To be continued.