Dark Money and the Supreme Court
During the confirmation hearings for Judge Ketanji Brown Jackson recently, Republican Senators made dramatic protests about "far-left dark money groups" that they claimed were at play in Judge Jackson’s nomination. Republicans took turns mimicking the previous complaints lodged by Democrats over the "the troubling role of far-left dark money [that is] attacking the independence of the judiciary."
While these arguments may seem salient during the process of interviewing a possible future Justice for a lifetime tenure, they were merely reverse copycat arguments that had been previously made by Democrats, who had raised concerns about right-wing dark money influence over the Supreme Court during the confirmation hearings for Brett Kavanaugh and Amy Coney Barrett.
Sen. Sheldon Whitehouse (D-RI) had previously argued that millions of dollars in undisclosed donations went toward boosting conservative judicial nominees, and he had actively voiced these concerns during the confirmation process for Coney Barrett and Kavanaugh. Now, Republicans are attempting to cover up their dark money tracks by accusing Democrats of their own scheme.
In response to the GOP's claims about dark money controlling the nomination process for Jackson, Democrats have released a report, which depicts the "decades-long scheme" by right-wing anonymous groups to "capture and control" the Supreme Court and push forward conservative interests.
The report singles out the Judicial Crisis Network, a conservative advocacy powerhouse that has for years spent tens of millions of anonymous dollars promoting conservative judicial nominees. Senator Whitehouse explained the plan to smear Judge Jackson saying, “Right-wing dark money groups have built a sophisticated judicial influence network, one that they used to pick all three Trump Justices and if you look closely, that network played a role in Judge Jackson’s hearing.”
You can watch the full video here:
Senator Sheldon Whitehouse (D-RI) has continued to tackle the mounting problems caused by a never-ending influx of dark money fueled by political agendas. He published an editorial in January of 2021, explaining the impending constitutional crisis posed by dark money groups, specifically involving the ability of conservative organizations to influence the judicial nomination process.
Whitehouse has also detailed the increased unethical influence that conservative organizations have bought to maintain a chokehold over the judicial nomination process, since the Supreme Court ruling in Citizens United opened the dark money floodgates in 2010. The controversial decision reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited funds on elections.
David Koch, half of the billionaire team that was Koch Brothers, has used his vast wealth to influence political spending and to force his libertarian-conservative ideology on the nation. The Koch network, which includes such groups as Americans for Prosperity, moved to force its extremist values off the assembly lines of its own factories, and onto the American collective.
David Koch — often heralded as the modern-day savior of the Republican Party — infused the GOP with nearly half a billion dollars to resuscitate the conservative movement, after their devastating losses at the executive and congressional levels in 2008. The result was the Tea Party movement, and the full repercussions of unlimited dark money in our federal court system are in plain view now.
“Dark money” can be an elusive term, but it ultimately refers to money that is spent to influence political outcomes where the source of the money is not disclosed. This process of using dark money to influence elections typically happens in two ways. First, politically active groups utilize a nonprofit 501(c)(4) status, which does not require them to disclose donors, and they also keep their backers’ identities a secret. Another way to engage in dark money operations can be the use of shell companies, that house and distribute bulk funding that can go to political entities or other non-opaque non-profit structures, so that money cannot be traced back to an original donor.
Since the Citizens United v. FEC Supreme Court ruling that gave rise to politically active nonprofits, these dark money groups have spent roughly $1 billion on methods meant to influence voters, mainly television and online ads and mailers. By concealing the sources of the covert funding that pays for these legal political “hit-jobs,” the electorate is bombarded with misleading political messaging that protects the true motives of corporations and the wealthy who are willing to pay for influence.
In his 2021 editorial, Whitehouse refers to this process as “the dark money ‘tsunami of slime’ sloshing through our politics,” and alleges that powerful special interests groups have spent hundreds of millions of dollars getting conservative judges confirmed to the bench, to push their anti-regulatory agenda within courts.
In a Senate Judiciary subcommittee hearing on the issue of dark money last year, before Jackson’s hearing, Senator Whitehouse stated: “It appears that the last three Supreme Court justices and many appeals court justices were ushered onto the bench through this [dark money] operation.” Republicans correctly pointed out at this hearing that dark money groups have an influence on both sides, and Democrats have also spent hundreds of millions of dollars in the last several years trying to influence campaigns and policy, as well.
While groups on all sides are guilty of utilizing the tactics supported by the Citizens United ruling, dark money is being used by Democrats to play defense to the ongoing barrage of political attack campaigns waged by the Republican Party. It’s also important to note that while Democrats are using dark money, they are doing so to ultimately get rid of it. Republicans are committed to fighting all opposition to the scheme that has served them so well in the past decade — Democrats want dark money gone across the board.
(Sen. Sheldon Whitehouse speaks during a Senate Judiciary Hearing for Supreme Court nominee Amy Coney Barrett on Oct 13, 2020.)
For example, Americans for Public Trust, a conservative nonprofit that claims it is “dedicated to restoring trust in government by holding the powerful accountable,” has issued a 2021 ad attacking Sen. Whitehouse for “hypocrisy on dark money.” Americans for Public Trust is a dark money group, funded by anonymous donors who receive tax breaks for their contributions, and they are now bashing Whitehouse over his supposed hypocrisy regarding dark money…which allows them to exist.
“Sheldon Whitehouse has a dirty little secret,” says the APT ad, which ran on the Washington, DC, market in 2021. “He relentlessly attacks dark money, harping on its supposed evils. But at the same time, he’s backed by liberal dark money. A lot of it. A whole lot of it. Millions of dollars worth. In fact, liberal dark money groups are his biggest allies.” As the narrator speaks, another voice whispers in the background “Hypocrite” and “What’s he hiding?” while dramatic music plays in the background. You can watch the ad here:
What the ad doesn’t specify is that Americans for Public Trust was only founded in 2019 and it doesn’t disclose any of its donors. Former Nevada Attorney General Adam Laxalt (R-NV), who was willing to assist Donald Trump in his false election interference claims by filing a federal lawsuit seeking to stop the vote count in Nevada, serves as outside counsel for the group.
Americans for Public Trust. has spent hundreds of thousands of dollars, often in coordination with the Judicial Crisis Network to attack President Joe Biden over his cabinet nominees, including Vanita Gupta and Xavier Becerra. The ad uses dark money to slam Democrats over the issue of using dark money.
Caitlin Sutherland, a former research director for the National Republican Congressional Committee, is the executive director for Americans for Public Trust and has recently defended the attack ad against Whitehouse. “As a nonpartisan 501(c)(3) (thank you Citizens United), we support the privacy rights of organizations who want to get involved in public policy without the threat of harassment or intimidation,” Sutherland said. Sutherland delved deeper into the hypocrisy of her statement: “The purpose of our six-figure ad campaign is to shine a light on Senator Whitehouse’s hypocrisy on dark money when he himself benefits from it.”
Right back at you, minus the six figures, Ms. Sutherland.
Amee Vanderpool writes the SHERO Newsletter and hosts the live SHERO podcast on Callin. She is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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The Citizens United decision is one of the worst decisions in the modern history of the Supreme Court. CJ John Roberts should be so proud of himself for it...........
Why do US speak of "conservatives" when US mean fascists?