Bench Memos

Law & the Courts

Republican Senators Expose Senator Whitehouse’s Dark Comedy

Sen. Sheldon Whitehouse during a Senate Judiciary Committee hearing, Washington, D.C., September 27, 2018 (Tom Williams/Pool via Reuters)

One of the spectacles that comes with a Democratic Senate is a platform for Senator Sheldon Whitehouse, chairman of the Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, to hold a hearing on his favorite subject: dark money. Yesterday’s was entitled “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.” A more self-aware senator would have picked a name that did less to conjure the memory of his notorious amicus brief in 2019 in which he threatened the justices with Court-packing if they did not rule his way: “The Supreme Court is not well. . . . Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” But self-awareness is not one of the senator’s strong suits, and that allowed Republican senators and witnesses to expose yesterday’s hearing for the dark comedy that it was.

To make his case against what he called the “tsunami of slime” that is “dark money,” Whitehouse called three witnesses who were from the very world he condemned:

  • Lisa Graves is president of the board of the Center for Media and Democracy (CMD), which has received large anonymous donations and gets a significant share of funds from groups that are used to hide the identity of donors. (This despite her statement to Senator Mike Lee that “there was no dark money that I received or that the Center for Media and Democracy received.”)
  • Ben Jealous is president of People for the American Way (PFAW) and used to be president of the NAACP. Both are dark-money groups. In fact, PFAW was a pioneer in this category. It was founded as a project of the Tides Foundation, a group that funnels money to numerous left-wing organizations while helping to obscure individual donors. Anonymously funded judicial-nomination campaigns were a recurring theme of the hearing, but it was PFAW that paved the way for today’s dark money spending in judicial fights, with its smear campaign against Robert Bork in 1987.
  • Professor Michael Klarman sits on the board of Take Back the Court, a left-wing dark-money group founded as an effort to eliminate the legislative filibuster and pack the Supreme Court.

Those witnesses were usually on board with the Supreme Court–disparaging theme of the hearing, but their testimony recounted decisions, laws, and organizations with which they disagreed without articulating any theory as to how the justices were corruptly influenced. Republican senators on the subcommittee saw through this and made sure their audience did as well. Senator John Kennedy, the subcommittee’s ranking member, asked over a dozen questions in an attempt to get from witnesses a cogent theory of bribery or other corrupt conduct, but they had none to offer.

One of the Democratic witnesses, Klarman, undermined the premise of the hearing when he stated that conservative groups are “trying to promote people onto the Court who they’re pretty confident think about the world the same way they do. I don’t think that’s insidious. I think . . . Democrats also try to put people on the Supreme Court to do the things that they want them to do.” If Whitehouse has a follow-up hearing, I don’t expect Klarman to be invited back.

The Republican senators made mincemeat of Whitehouse’s argument. On this occasion, the chairman did not bring any of his trademark charts adorned with the names of groups he disagrees with, but Senator Thom Tillis displayed his own stash of charts, with one after another displaying the liberal dominance of dark money, the labyrinthine Arabella Advisors empire, and associate attorney general nominee Vanita Gupta’s place in that empire.

Senator Ted Cruz drove home that “Democrats thunder against dark money, and yet Democrats dominate dark money.” That includes 14 of the top 20 organizations giving virtually all their money in 2016 to support Democrats and eight of the top ten donors to super PACs being Democrats. That dominance only increased, with Democratic dark money in 2020 outnumbering Republican dark money by a ratio of six to one. Cruz ran through several examples with Scott Walter of the Capital Research Center, who displayed his encyclopedic knowledge of the landscape and mainstream media’s lack of interest in giving attention to liberal groups that “use more opaque funding methods” for their advocacy than do conservative groups.

By the time the hearing was over, it was as hard to figure out what Whitehouse got out of it as it was to see through Arabella’s balance sheets. Kudos to Senators Kennedy, Lee, Cruz, and Tillis for shining a light on the Left’s dark money machine. For decades, organizations like Arabella Advisors, PFAW, CMD, and many others worked in the shadows to intimidate and influence our courts, but they are finally being exposed.

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