Senator Sheldon Whitehouse - The Scheme

ALSO BY SHELDON WHITEHOUSE

Captured: The Corporate Infiltration of American Democracy

On Virtues: Quotations and Insight to Live a Full, Honorable Life

How the Right Wing Used Dark Money to Capture the Supreme Court

Senator Sheldon Whitehouse

with Jennifer Mueller

This book is dedicated to the small brave band of writers, researchers, and scientists who investigate and report on the poisonous creep of secret influence into Americas democracy. They include Jane Mayer,

Naomi Oreskes, Nancy MacLean, Michael Mann, Bob Brulle,

Tyler Dunlap, and Jason Farrell, among others.

Their warnings have received too little attention, but history will note their work.

S.W.

For Ana, Christopher, Thomas, and Julia

J.M.

Justice removed, then, what are kingdoms but great bands of robbers?

SAINT AUGUSTINE

A judiciary independent of the Nation can turn its guns on those it was meant to defend.

THOMAS JEFFERSON

THERE IS A SCHEME AFOOT.

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. Its happening right under our noses. And it puts at risk one of our most cherished American principles: equal justice under law.

The Scheme has penetrated deeply into all of our federal courts, but its prize is the Supreme Court. The buck stops, as they say, with the Supreme Court: there is no higher authority that can be appealed to once it has issued a constitutional decision, all roads of review lead to the Court, and escalating gridlock and dysfunction in Congress hamper legislative correction when the Court undoes or rewrites a law. Despite all this power, remarkably, no Supreme Court justice, conservative or liberal, is bound by the judicial code of ethics that constrains all other federal judges.

Because its actions are essentially unreviewable and its members serve for life without having to answer to the public, the Supreme Court has the power to overturn precedent, ignore evidence, and reshape the law, immunized from electoral consequence. In case after case, this is exactly what the Court under Chief Justice John Roberts has done. In literally dozens of partisan decisions that ignore both precedent and principle, the Roberts Court has advanced a far-right agenda that is deeply out of touch with the will of most Americansunleashing massive amounts of dark money, impeding citizens from voting, allowing corporations to dodge lawsuits and liability, undermining civil rights, and denying individuals access to juries.

The path to this point was not politics as usual. Set aside Mitch McConnells unconscionable refusal even to hold a hearing for Merrick Garland, President Obamas nominee to fill the seat vacated by Justice Scalias death. Set aside the troubling non-investigation by the FBI into the allegations about Brett Kavanaugh. Set aside the unseemly and unprecedented rush to fill Justice Ginsburgs seat while voting in the 2020 election was under way across the country. Those actions were viscerally enraging, but theyre not as sinister as the millions of dollars of dark money that flowed into campaigns and political coffers to secure the confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Theyre not as dangerous as President Trumps public insourcing of a private organization, the Federalist Societyalso funded by dark moneyto name, vet, and approve his judicial nominees. And theyre not as alarming as the millionslikely billionsof dollars in dark money that corporate oligarchs have spent for decades to cook up and push fringe legal theories that undermine even the federal government itself.

A handful of Republican Supreme Court justices opened the floodgates to this dark money, and the donors who got them there have been rewarded handsomely. A single anonymous donor spent more than $17 million in both the Gorsuch and the Kavanaugh confirmation battles to secure the nominees ascension to the Court (and in a sign of how broken our disclosure system is, we will likely never know who the donor is or what business he or she had before the Courtnor do we yet know what money was spent on the Barrett confirmation). All told, researchers have tracked at least $580 million spent by people who dont want you to know who they are, but who are hell-bent on remaking the federal courts. Over half a billion dollars is a massive investment. Who was paying, and what did they think they were getting for their money?

This is the Scheme: a decades-long, behind-the-scenes manipulation of our political and justice systems to capture our courtsespecially the Supreme Courtas a way to control the future of our democracy.

The trail left behind by the Scheme can be viewed the way a prosecutor considers evidence of a crime. Was there a motive? Were the means available to do the deed? Was there a plan, and a method to execute the plan? Were there efforts at secrecy and subterfuge? At the end of the day, were there proceeds of the crime, and who ended up benefiting from those proceeds?

I didnt set out looking for a scheme. In the beginning, I was simply trying to understand an apparent paradox: why, as science established ever more conclusively that climate change presents a clear and present danger to our way of life, did Republican senators increasingly deny the data and refuse to support commonsense policies to limit fossil fuel emissions? After all, not long ago Republicans prided themselves on being the party of facts and figures, the party whose president established the Environmental Protection Agency in 1970.

I came to the Senate in 2007. In those first years, climate change was a bipartisan concern. At least three strong bipartisan climate bills were kicking around in the Senate, and John McCain (who was to become a dear friend) had a strong climate platform in his 2008 Republican presidential campaign.

Then in January 2010 all that bipartisanship stopped, as if a switch had been turned off. Climate progress died. The sudden shift came immediately after a bare majority of Republican-appointed justices set loose unlimited political spending in the Supreme Courts disastrous Citizens United decision.

Before joining the Senate, Id spent decades as an attorney, including as Rhode Islands U.S. attorney and attorney general. Id been around politics a whileinvestigating political crimes, working in political campaigns, negotiating political deals, understanding political institutions and their norms and rules, and seeing human behavior in the political ecosystem. Id learned that when I saw people acting in a way that didnt make sense, I should look offstage to see who was pulling their strings.

So to understand this paradox, I began to follow the money. I discovered a network of trade associations, think tanks, front groups, and political organizations acting in concert to deny climate change. It was hard to discern the true sources of funding for this apparatus, in part because my Republican colleagues blocked laws and regulations that would reveal the donorsand in part because an increasingly complicit Supreme Court let dark money flow. But year after year, researchers and investigative reporters painstakingly dug through paper records to connect the dots.