Bench Memos

Law & the Courts

The Hill’s Profile of Sheldon Whitehouse Gets Money and Influence Backwards

Senator Sheldon Whitehouse (D-RI) questions judicial nominees during a hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., December 4, 2019. (Joshua Roberts/Reuters)

The Hill just profiled Senator Sheldon Whitehouse as the “Democratic Party’s leading voice on the courts” in an article that comes out of the gate with a glaringly false assertion: “Democrats have historically struggled to match the GOP’s intense focus on the courts. They also lack the network of well-funded legal advocacy groups that conservatives use to mobilize supporters.”

This gets it completely backwards. The funding and influence of groups on the Left has long outsized that of conservative organizations. In the history of this nation, the ACLU has been second to none in taking significant constitutional cases to the Supreme Court. A host of other prominent organizations, like the AFL-CIO, NAACP, Planned Parenthood, and the American Federation of Teachers, have been virtual auxiliaries to the Democratic Party for decades. In fact, they were among more than 1,000 groups that joined a $60 million campaign, Health Care for America Now (HCAN), to secure the passage of Obamacare.

This legal dominance also extends to the regulatory front. Environmental and other “dark money” groups funded opposition to the construction of the Keystone XL pipeline in Canada. Some pass-through entities like the Tides Foundation provided funding both for that and for groups that pushed for the Federal Communications Commission’s adoption of net neutrality regulations during the Obama administration.

And that’s just the tip of the iceberg. The Arabella Advisors’ network raised $1.6 billion between 2013 and 2017. It has supported a network of affiliates too numerous to list here, but which include the Sixteen Thirty Fund. That well-endowed group spent $141 million in 2018 alone. Their recipients include Demand Justice and the League of Conservation Voters (LCV). The LCV is Whitehouse’s top donor.

Speaking of which, the Rhode Island senator has made over 250 speeches on the Senate floor on climate change, an LCV priority. He is also a favorite of People for the American Way, the Center for American Progress, and the American Constitution Society. He spoke — about dark money, of all things — before the latter two groups, without noting the irony about how they are funded. In fact, they both receive funding from the Democracy Alliance, which since 2005 has funded liberal groups to the tune of nearly $2 billion.

This Hill article recognizes Whitehouse himself is a prolific filer of amicus briefs, but it does not recognize his filings that side with parties and attorneys who donated to him. Or that he pushed hard to put on the federal bench John McConnell, a prodigious Democratic donor who is now on the Codes of Conduct Committee that is trying to silence the Federalist Society with a judicial membership ban.

Just imagine what people would say about Whitehouse if they held him to his own standards. His recently released “Captured Courts” report, coauthored by Senators Chuck Schumer and Debbie Stabenow, is a long-winded conspiracy theory. The report argues that courts have been nefariously captured by “powerful business interests.” The specifics entail an almost comical account of how Lewis Powell — a noted moderate — inspired this sinister movement with a memo nearly 50 years ago which culminated in a cabal that Whitehouse dubs the “Roberts Five.” By Whitehouse’s suspicious methodology, the changing cast of this quintet includes Justice Anthony Kennedy, who ironically is most famously known as an unpredictable swing justice.

The report becomes more implausible from there. It forgoes any actual evidence of wrongdoing and instead rattles off a list of conservative organizations — claiming that they collectively have raised about $250 million between 2014 and 2017. And Whitehouse has the temerity to argue that conservatives are better funded than the Left.

Whitehouse digs himself a deeper hole with the special attention he gives to one of his favorite targets, the Federalist Society. His report breaks down its corporate donors to reveal that they include — get this — such right-wing giants as Google, Microsoft, and Facebook. The report calls the Society a virtual “judicial lobbying interest group,” but it is in fact much more like a bar association. (But unlike the American Bar Association, the Federalist Society does no lobbying)

And of course, the ABA’s advocacy anchors it firmly on the political left. The same has long been true of the vast majority of American law schools. But Whitehouse hopes his audience will be as willfully blind to basic facts as he is. Whitehouse has the audacity to vilify the holders of an entire intellectual philosophy. His report asserts that originalism itself is “not a legal or constitutional” project, but merely a tool to “serve corporate interests, social conservatives, and ultra-rich Americans.”

Ronan Farrow was recently criticized for not following more careful journalistic standards to expose conspiratorial behavior, but Whitehouse’s methodology makes him look like Edward R. Murrow.

Unfortunately, The Hill seems to have taken Sheldon Whitehouse and his hyper-partisan rants at face value rather than look at what’s behind the curtain. But I suspect Senator Whitehouse won’t always be so fortunate. As the old saying goes, it’s never a good idea to throw stones from glass houses.

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