This series of “Scheme” speeches is designed to chronicle a long-running covert scheme to capture the Supreme Court, just as regulatory agencies have often and notoriously been captured by regulated interests. The whole doctrine of regulatory capture in economics and administrative law revolves around this history of agency capture.
So why not capture a Court?
The trajectory of my “Scheme” speeches has been through time, beginning with the Lewis Powell strategy report to the Chamber of Commerce, and then his enabling of that strategy as a Justice of the Court, and then how the right-wing fringe was brought into organized alignment by the Koch brothers, and the link to the regulatory capture apparatus and its willing band of mercenary lawyers and witnesses.
The single most important goal of this covert scheme is to protect itself. The scheme may be put to innumerable political uses, but none of those political uses will be effectuated unless the underlying apparatus remains operational. Survival of the dark money operation is Job One. And a core strategy for protecting its covert operations is camouflage. To camouflage the entity you need anonymity for the donors behind the operation. The scheme is blown if there is transparency. The clandestine connections among front groups become apparent, and the manipulating hands of the string-pullers behind this surreptitious scheme become visible. Voters see the scheme, understand the players and the motives , and the operation is foiled. So anonymity, particularly donor anonymity, is essential.
Voters may hate it, but big donors need it. The term for this anonymous funding, now pouring by the billions of dollars into our politics, is dark money.
If you are out to capture a Court, you want to make sure it will protect your dark money, the camouflage for all your covert operations. It’s Job One.
Which brings us to the Americans for Prosperity Foundation case. AFPF is a central front group of the Koch political influence operation. It sued to prevent California from getting access to donor information of the so-called non-profits, like itself, that since Citizens United have provided screening for the mega-donors behind their political efforts. To these political groups, donor anonymity is vital to help the scheme function.
One of the ways the dark money operation signals its desires to the Court is through little flotillas of dark-money groups that show up as “friends of the Court” to provide guidance.
These signaling flotillas usually number a dozen or so. Not in this case. In this case, fifty of them showed up — fifty — and they showed up early on, at the certiorari stage. This was a blaring alert to the Republicans on the Court how important this case was to the dark-money operation. And the Court delivered. The Republican majority just established a new constitutional right to donor secrecy. And they did so for a group flagrantly involved in right-wing political mischief and manipulation. The group’s operating entity had even spent millions just last year to help get Justice Barrett confirmed.
They are so brazen about this. They actually used AFPF as the named party, not some benign non-political entity. They took the bet that this precedent of a politically-active manipulator being the named party would not faze the Republicans on the Court, and they would have a foothold for dark-money political spending. And they pulled it off in plain daylight.
Justice Barrett declined to recuse herself, despite the Caperton precedent of recusing in cases involving parties who spent millions to get you on the Court. Not a peep about that.
This Republican majority completely ignored the assertions of the Republican majority that brought you Citizens United that transparency in political spending was our protection against corruption. I suppose that was a safe bet for the dark money folks, as the Republicans on the Court have turned a blind eye to the flagrant, massive violations of this asserted transparency principle. It looks like it was window dressing in Citizens United, and it looks like that window dressing is in the dumpster now.
The AFPF decision looks totally outcome-driven; not applying the law, but changing the law, to favor dark money. And it came down by a partisan 6–3.
The end result here is that the dark money empire has just been given by the Republican Justices a legal tool to fight disclosure and protect the clandestine nature of its covert operations. This is dark money’s pearl beyond price. And the Court delivered.
It is notable that this dark-money-funded operation had a big hand in putting the last three Justices on the Court. Much is hidden behind dark money screens, of course. But what we do know is chilling. The Federalist Society took in tens of millions in dark money while it was being used as the private political turnstile to control who got nominated to the Court. The Judicial Crisis Network took dark-money donations as big as $17 million to fund ad campaigns for the selected nominees’ confirmations to the Court. And floods of dark money poured into the Republican Party as Leader McConnell smashed and crashed his way through any rule, precedent or practice of the Senate that stood in the confirmation path of the dark-money nominees.
Truly, this is today The Court That Dark Money Built.
The dark-money link to the Republican Party brings us to the second case. This case, Brnovich v DNC, involved voter suppression laws passed to discourage minorities from voting. Why would anyone want to do that? Because today’s Republican Party has settled on voter suppression as its path to power. Across the country, Republican-controlled legislatures have swiveled in unison to pass voter suppression laws in their states. Dark-money groups have been caught taking credit for this coordinated swivel, describing how they worked through local “sentinels,” how they drafted the legislation for the local Republicans, and how they were able to do so surreptitiously. The voter suppression fixation of Republicans in all these state legislative bodies is a coordinated activity, with the dark-money apparatus behind it.
Another example: after a Washington Post expose blew his cover, the operative at the center of the dark-money Court-packing enterprise vacated that role. Where did he go? He moved straight to voter suppression.
That Washington Post expose, by the way, chronicled $250 million in funding for the dark-money Court capture operation. Whoever is behind this, they are not playing around. So when Mr. Court Capture shows up as Mr. Voter Suppression in a repaint of one of his Court-capture vehicles, you can guess his voter suppression effort will have plenty of dark money too.
With this as the background, the Republicans on the Court served up yet another blow to the Voting Rights Act, allowing states to pass more voter suppression laws, even laws conceded to impede minority voting. The author of the partisan majority decision even threw in the totally unsupported, perhaps even fraudulent, Republican political talking point that voter fraud is presently a big hazard demanding attention in our elections.
So it was a big week for the dark money apparatus when those two decisions came down. The upshot is simple.
The dark money apparatus that put the last three Justices on the Court desperately needs dark money to function; and The Court That Dark Money Built just built dark money a new home in our Constitution.
And the dark money apparatus that put the last three Justices on the Court desperately needs Republicans to win elections to work its political will, and the Number One Republican strategy going into 2022 is voter suppression; and The Court That Dark Money Built just kicked in the Voting Rights Act another hole allowing more voter suppression.
Just “balls and strikes”? Yeah, right. They’re not just calling balls and strikes. In case after case, in a consistent and predictable pattern, they are changing the shape of the ball field, and tilting it steeply to help one side, and doing grave damage to important safeguards of democracy in the process.