WASHINGTON, DC – American courts are besieged by right-wing special interests. They want to rig the federal judiciary to favor large employers over employees, mega-banks over small businesses, and gun manufacturers over gun victims. Time and again, the political agenda pushed through the Federalist Society, a group that has done more than anyone else to move the federal judiciary far to the right, has become common law at the expense of everyone else. And now, if this operation gets its way in a case with little attention before the Supreme Court, secret interests will solidify their upper hand in US constitutional law for generations to come.
As chairs of Senate and House subcommittees on courts, we have closely observed the alarming dark money encroachment on the judiciary. The undisclosed benefits that exerted that influence determined the final three Supreme Court nominations, and then pressed Parliament to ram the nominees through, including by spending millions of dollars on campaigns national television and radio advertising (especially to Justice Brett Kavanaugh when he ran his nomination. got into trouble).
After helping to put sympathetic jurors on the federal bench, a web of financially affiliated legal groups then take turns establishing cases to land in the Supreme Court, where they file coordinated amicus briefs (“friend of the court”). ”) To support the outcome. they pitch. Similar to a strategically conducted orchestra, the amicus effort is the closing move of a massive courthouse campaign.
The key to this operation is dark money: non-traceable gifts to a donor. Special interests have built a huge network of dark money front groups to perform all functions of holding courts, from selecting judicial nominees, to choosing cases for them to hear, to lobbying through amicus briefs for the results they want. Between 2014 and 2018 alone, this network received $ 400 million in dark money, according to recent expert testimony to Parliament.
It is an unfortunate fact that this dark money campaign is working. Even before Justice Amy Coney Barrett joined the Court in the dying days of the Donald Trump administration, a Republican majority of five had run an 80-case strike of 5-4 party victories for the interests of large Republican donors. But the real payout could become Americans for Prosperity Foundation v. Rodriquez, where the Court may decide that a right-wing donor elite has a constitutional right to confidentiality when it uses front groups to influence politics and courts.
The parties in the case tell us a lot about what’s at stake. The American for Prosperity Foundation is part of a dark money front-line group funded by billionaire energy mogul Charles Koch, whose American for Prosperity link provides the political muscle for the operation. Still more telling is the variety of “amici” that flocked to the case even before the Supreme Court agreed to hear it. These groups often appear in organized armadas before the Court, but the presence of more than 60 dark-silver front groups in this case shows that something big is afoot.
The explanation is in Congress, where powerful corporate entities deeply involved in dark money operations have begun to openly refuse to answer questions about dark money finance. In doing so, they “plead the First” – claiming a previously unknown First Amendment right to operate covertly in politics through dark money.
Ironically, the requirement for political spending to be transparent was established by the 2010 Supreme Court Citizens United ruling, which opened the door wide for big money in politics. But the Court has made no effort to insist on its transparency requirements, and now that the political balance of the Court has slipped to the right, those paper-based requirements may be torn.
Justice Clarence Thomas alone opposed the disclosure requirements back in 2010. But since then three new magistrates have been led on the bench by dark silver forces, and Justice Samuel Alito appears likely to flip to the dark side. That makes a credible majority of five for unlimited dark money. Certainly, whoever is behind those 60 amici believes it.
Needless to say, the special interests that have built a huge engine of influence around the federal judiciary will defend it by all means. No dark money would mean no machine, and no machine would mean no influence. It’s that simple. The Supreme Court today – the Court on which dark money is built – may be the one to lock dark money in the long run.
As politicians, we are convinced that Citizens United wrongly decided it, and we are very disappointed that the Court never enforced the terms of its own decision. We have seen widespread impediment and corruption in Congress as a result of these failures, and we believe these problems are factors in public dissatisfaction with government.
The Court would offer constitutional protection to dark money schemes making things much worse. Informed citizenship is one of the few checks on power and influence in government. Denying citizens information about what is happening around them and their government, and you have hit a deadly blow against democracy.
That would certainly suit the dictatorial dark money forces who worked so hard and spent so much to make up the current Supreme Court. Democracy is what these forces oppose. They want power for billionaire puppet masters operating from behind the dark silver curtain. We cannot let that happen.
Copyright: Project Syndicate, 2021.
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