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Senator's book argues dark money controls the country and courts

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Senator Sheldon Whitehouse

Photo courtesy of Sheldon Whitehouse

In The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, Sen. Sheldon Whitehouse examines the influence corporate interests and right-wing billionaires have had on the judicial system and American democracy.

The Rhode Island Democrat, who has spent his career at the forefront of the fight against money in politics, says the book is an urgent call for corrective action.

“At a macro level, the ultimate goal here is to restore democracy for people and get dark money and corporate interests out of it,” Whitehouse said in an interview with the ABA Journal. “The Constitution saw no role for either.”

Drawing on personal insights and inside stories from his 15 years in Congress, Whitehouse and co-author Jennifer Mueller delve into the highly organized effort to reshape the federal courts—particularly the U.S. Supreme Court—through hundreds of millions of dollars in hard-to-trace funds.

Whitehouse, a member of the Senate Judiciary Committee and a former federal prosecutor, breaks down what he describes as a dark money scheme to control America’s courts. Whitehouse says he hopes his book will help Americans wake up to the fact that this isn’t just a conservative Supreme Court, it’s a “captive” court.

“There is a scheme afoot,” Whitehouse writes in the book. “If that sounds dramatic, it should. Because it involves a decades-long effort by a handful of corporate oligarchs to subvert American democracy by capturing the Supreme Court and making it their court, not our court. It’s happening right under our noses. And it puts at risk one of our most cherished American principles: equal justice under law.”

Whitehouse calls out right-wing billionaires and corporate business interests—particularly the fossil fuel industry—which he says have been working under the radar since the 1970s to transform the judiciary. He says it’s not simply Republicans who strategized to take over the court, but powerful and secretive billionaires who used the Republican party for this purpose.

Shining a light

During Justice Amy Coney Barrett’s 2020 Supreme Court nomination hearings, Whitehouse drew national attention with his questions about the role that “dark money” has come to play in the judicial nomination process. His dramatic posterboards during the proceedings highlighted the interconnection between conservative groups such as the Judicial Crisis Network and the Federalist Society in what Whitehouse dubbed “the Scheme.”

In his disquieting book of the same name, Whitehouse argues our system of government has turned into a de facto plutocracy, with the effects of dark money influence evident in recent landmark decisions.

He points to the Americans for Prosperity v. Bonta case, in which the Supreme Court held in July 2021 that a California statute requiring charities to disclose the names and addresses of their major donors violated the First Amendment, giving a “first-ever constitutional right to dark money.” There was also the court’s June decision in West Virginia v. Environmental Protection Agency, which limited the EPA’s ability to regulate greenhouse gas emissions. Also in June, there was the conservative majority’s reversal of Roe v. Wade.

“I do think the Dobbs decision lit up the [abortion] issue in a whole new way because it brought home to people how an extremist court could intrude very deeply into their lives and liberties, and there’s nothing they can do about it,” Whitehouse says. “There’s not a hypothetical anymore —[the court] just took away rights from half the population that they’ve enjoyed for half a century. Suddenly, it’s real.”

Whitehouse says The Scheme is a “lawyer’s book” that breaks down how dark money architects have crossed a “bizarre rubicon” by applying the agency capture toolkit to the courts. This sort of capture and control of the highest court in the land may not be uncommon in autocratic nations, but Whitehouse explains that in the U.S., the impetus is money rather than dictatorial power.

“There’s a reason [dark money] targeted the most anti-democratic branch of government—they tried in Congress and learned there are some things even some Republican members won’t do,” Whitehouse says. “They learned over years that courts can do things that other branches can’t or won’t—they are insulated and can do horrible things.”

According to Whitehouse, Democrats failed to recognize the Scheme until it was too late. He says the party tends to blindly trust in institutions —often a strategic error. But moving forward, advocates need to educate the public; and the Supreme Court must be reformed, whether through term limits or expanding the number of justices.

“We have work to do to make sure the public knows what’s going on—you’ve got to do your homework of explaining the predicament before you perform the cure.”

This story was originally published in the February-March 2023 issue of the ABA Journal under the headline: “Captured the Flag: Book argues dark money controls the country and courts.”

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