With Supreme Court Mired in Dark Money, Time for Large Dose of Transparency
by Sheldon Whitehouse
https://www.justsecurity.org/67591/...rk-money-time-for-large-dose-of-transparency/
In 1971, prominent corporate lawyer and future Supreme Court Justice Lewis Powell wrote a memo for the U.S. Chamber of Commerce. He said, “the American economic system” – which seems to mean the power of corporate America – “is under broad attack” from academics, the media, leftist politicians, and other progressives. Against the nefarious forces of the anti-war, civil rights and environmental movements, Powell wrote:
. . . independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient. Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.
Today, we see how much that campaign has delivered. Polluter lobbyists and lawyers lead the EPA. Industry front groups disabled our campaign finance system and now spend unlimited dark money in elections. The firearms industry holds the Republican Party firmly in its grip on firearms. It’s pandemic.
This armada of special-interest influence, carefully orchestrated and richly funded, has turned its attention to the courts. Indeed, the Powell Memo referenced the importance of “activist” courts to help the corporate cause. For decades, conservative ideological donors like the Kochs, big tobacco, fossil fuel, and corporate front groups like the Chamber and the National Association of Manufacturers, fought for control of the courts. Their payback has been rich.
Just one win has justified their effort: the 2010 Supreme Court decision in Citizens United, when five Republican-appointed justices opened the floodgates for unlimited spending in elections. Unlimited spending instantly led to anonymous unlimited spending, and triggered what one newspaper called the “tsunami of slime” we have seen in recent elections. This year, “dark money” spending reported to the FEC exceeded $1 billion. In practice, Citizens United gave powerful influencers triple power: to spend in unlimited fashion; to hide their spending in dark money channels; and to wield that power to quietly threaten and cajole. And, a super deal: if the threats work, you don’t have to spend the money.
That’s the kind of result you can achieve from just five justices, so the campaign to capture the federal courts goes full steam ahead, and under Trump at breakneck pace.
The Washington Post revealed earlier this year a sprawling network of organizations that is funded by at least a quarter-billion dollars of largely anonymous money and is spearheaded by the Federalist Society’s Leonard Leo. This network played a big role in the confirmations of Justices Neil Gorsuch and Brett Kavanaugh. One anonymous donor gave $17 million to the Leo-affiliated Judicial Crisis Network for political campaigns against Judge Merrick Garland and in favor of Gorsuch; then came another $17 million for the political campaign to prop up Kavanaugh, perhaps from the same donor.
That would mean someone spent $35 million to influence the composition of the Supreme Court. Presumably, they’d expect results.