The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court ~~ Sheldon Whitehouse

 The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court.  Sheldon Whitehouse talks about his recent book on C-Span's Book TV. Duration of Show 1:12:40, November 21, 2022, at                                                                              < https://www.c-span.org/video/?524046-1/the-scheme > 

~~ recommended by dmorista ~~

Introduction by dmorista: Whitehouse gives an excellent talk about the process by which the oligarchs used their political assets to place several of the Supreme Court Justices on the highest court.  He has extensively researched this topic.  He points out that this is a new situation in the U.S.  The court is not just conservative, it has been captured by right wing extremist operatives, and is now an important component of the enforcement of the oligarchs' far-right agenda on the populace of the U.S.  The talk can be watched at C-Span's website, at the URL provided here; or for those who prefer print, a relatively rough transcript is provided here below.  Whitehouse is a Liberal, but certainly not a Leftist.  Don't expect left-wing analysis here, but he does provide a well informed and realistic discussion of the specific topic of the power and motivations of the current U.S. Supreme Court.  The wealthy in the U.S. have never had a Supreme court as totally dedicated to ruling favorably on the most extreme parts of their Socioeconomic and Political Agenda.  Over its career, in the U.S. political scene, the Supreme Court has mostly been a bulwark of corporate and capitalist power, but the current court pushes that political role to an entirely new level.

Transcript:

Moderator: (The Scheme) is available at book tv dot org starting now. Democratic Senator Sheldon White House of Rhode Island argues that conservatives use corporate and special interest money to gain control of the federal court system. Good evening. Uh, he represents Rhode Island in the United States Senate. He's seen a senior member of the senate judiciary committee. Most importantly, the charter books customer. Most importantly, please welcome senator Sheldon White House. 

Whitehouse:  Thank you all. I think the routine here is I talked for about 10 minutes. Then we have questions and answers. So let me start by thanking you for coming out. Um, and thank you for your interest in this book. Um, I worked pretty hard on it as if you get around to reading it, you'll see it's pretty dense stuff. Um, I would describe it as more or less equal parts textbook if that doesn't scare you off detective story and warning flare. And as we talk about it, there are two concepts I want to put in your mind first because they'll help illuminate the rest of the conversation. The first is something called agency capture or regulatory capture, which is a phenomenon that goes way back into our history. And you might think of some of the early episodes of agency capture or regulatory capture as say, railroad barons running the railroad commission that sets the rates for their railroads. Um, and there's been a lot of literature about it, both in the economic field and in the field of administrative law. So have that thought in mind because people often think of the court as a conservative court or even a radically conservative court. My thesis is a little bit different. It's that it's a captured court and exactly the same way that in the bad old days, the railroad barons captured and ran for their own benefit, the railroad commissions. So that's concept. One concept to to keep in mind is um covert operations. Um I was on the intelligence committee for a while. My father spent an early part of his career before he officially became a State Department official, as an agency official. And um, I love reading spy novels. So for all those different reasons. Um, you know, you see how a covert operation runs, and very often governments run covert operations against and in other countries, and very often they have the purpose of trying to disrupt the foreign country to foment dispute, to prop up political parties, to put poisonous propaganda into the political discussion in that country, to bribe and cajole and even capture organizations in that country. And my thesis is that what has happened in the United States is an internal covert operation run largely by the fossil fuel industry, but by big right wing uh, forces of wealth. Um, and that that's why a lot of this we haven't seen. Now, I'll close um, before I just go to describing the book by saying that, I don't think the c I a would be proud of this covert operation. We as democrats have not been at all good about pointing it out. And so they've gotten pretty sloppy. So there are things that are very sloppy, like for instance, the Federalist Society, which was the venue for the part of the court capture operation that planted the people they wanted onto the court is supported by a group called the Judicial Crisis Network, which is the past through. And the ad buyer for the funding for the political campaigns that were launched on television opposing Judge Garland and supporting Judge Gorsuch, Judge Kavanaugh and Judge Barrett. And they were taking checks for $15 million, $17 million federal society and the Judicial Crisis Network on the same hallway in the same building in Washington D. C. But they did and they actually answer each other's doors. So, um, there's some slip ups in the Tradecraft as a intelligence official might call it. Um, and some of that is what I described in the book. So how does the scheme worked? Well, the first thing you do is you pick who's gonna be on the Supreme Court, Never been done before to have a private organization choose who's going to be on the United States Supreme Court. Ever. Ever and to have a private organization do that, choosing while at the same time, it's taking unprecedentedly large anonymous contributions. You don't have to be a genius to figure out the possibility of corruption in all of that. And then of course, once they've been chosen, you need to do two things, you need to push them onto the public and get everybody riled up. So you go down the hall to the judicial Crisis Network and you run your ads from there um little sidebar in the judicial crisis network. It's one of eight front groups that are operated rather collectively by a guy named Leonard Leo Who you might have heard of. He's the guy who's set up an additional front group recently to receive the $1.6 billion Barry side that has now oozed its way into the rest of his network and who knows where it is when it landed in something called marble Freedom Trust out in Utah and then went on from there. So you have that operation pushing all of it at the same time. My thesis is that the people who are funding this operation and can write a $15 million check or a $17 million check are also writing those big checks to mitch McConnell to make sure that his off the books non declared political operation, not the campaign contributions which you have to report. But what they call the outside money sometimes called dark money that they keep filling up his coffers there. So as these candidates come forward, the support for them among republicans on the committee is locked down by those enormous generous donations. And we saw that pressure put to quite a stress test with, for instance, Judge Kavanaugh. It is not often that senators are asked to vote a nominee for the United States Supreme Court who has unresolved issues about whether or not he committed youthful sexual assault on a girl. And there were other charges from college age stuff too. So, you know, ordinarily, senators would say, hey, find us another one who doesn't have those problems, but something was happening so that he shot through ditto when you had the excuse that you couldn't put Judge Garland on the court because it was within a year of an election and everybody stood up altogether and said, yes, that's our that's our policy. You absolutely positively can't put a justice on the Supreme Court within a year of an election. And they all stood by that completely manufactured doctrine. And then as soon as the notorious RBG ruth Bader Ginsburg passed away, that doctrine went out the window and while votes were actually already being tallied in the election, they were jamming Justice Barrett onto the court. So again, an ordinary situations to require United States senator to vote one way and then do a very public 1 80 go exactly the opposite way. A little weird and a sign, I think of the pressure and a bit of a confirmation of the money pouring in and the last piece is once they're up there they can't be expected to know everything that they're supposed to do. So how does one communicate with them? One communicates with them through what are called mickey curiae friends of the court and um it's common for people to file amicus curiae briefs. I've become a specialist, I find probably a dozen of them in front of this court to warn them off about this stuff. But what I've discovered is that the groups that were behind the appointment and the money that was behind the appointment are turning up in flotillas of mickey who you can connect through common funders but the court doesn't require very clear explanation of who's funding stuff. So it takes somebody like me to dig it out in one of my briefs. I actually did a table at the end in the form of an appendix and it went down a list of maybe 10 of their ethnic and then cross reference it across the top with four major funders and check, check, check, check, check, check check to see all the ones who had common funding from different funders. So they come in flotillas of maybe 8 to 12. Usually There was one case that was particularly important to them, where the flotilla was 50 and this wasn't even if you know this is where the Supreme Court works. The case comes in, gets accepted by the court and then the determination how to proceed with it whether to go to full argument briefing is called the search er I stage the search stage, Supreme Court practitioners call it. And then if you get cert then you move on to the full argument and briefing and it's usually at that stage that all of the mm Kay appear because that's really the relevant stage in terms of having an influence over the final decision. No no no no. Back at this certain stage in this case, 50 showed up. So they were sending a megaphone blaring signal to the court. Hey guys, this one really, really, really really, really matters to us and what was it that mattered so much to them. This was a case very poorly noticed. Very not known known by many people where they created a constitutional right to dark money. So if you are operatives whose tool for mischief is dark money, the most important thing to you in the world is to be able to continue to use your dark money tool. It's the sin that makes all your other sinning possible. So this dark money case was huge and that would explain why 50 showed up at the search stage and why 6-3 they created a new constitutional right at around the same time that they were taking away a certain other constitutional right from half the population. So this has been the process and that's what I tried to explore in the book. Um I did a thing last night with jane Mayer, you may remember her, she's the brilliant, brilliant writer who wrote actually the book, Dark Money and she's gonna she's working on a book on the court also. So I'm kind of her like frontrunner and she'll do the really cool one in a year or two. And by then who knows, maybe somebody will have come out, you'll have whistleblowers, you'll have people who are willing to talk about what went on and you'll have a little bit better evidence about what I have proposed. But for the moment my proposal has to stand on the evidence that is laid out for you in the book. And I hope you enjoy it and I hope you find it convincing and I'm happy to answer any questions or respond to any comments about it. So with that the floor is yours in the back. Yes, sir.

Question:  Given your backdrop in the book, what can we in the audience and the lowly folks in the bleachers do turn of course, correct this ship. 

Whitehouse:  Most, most of the members of the Supreme Court are concerned about the integrity and reputation of the court. And one of the reasons I'm as obnoxious in their view as I have been about that institution, is to create a sense of peril for them that if they keep doing this, they're gonna keep getting called out and it's gonna be bad for the institution. So I think the more that people challenge the institution, the better. In my book. I quote a letter from somebody who resigns their membership in the Supreme Court in a very emotional letter to the Chief Justice saying I just what you guys have done, you're not a court any longer. I can't, the only thing I can do is to turn in my uh ticket to practice in the Supreme Court. And so here's here's what I'm doing. Um I also think that many of us are involved with groups that care a lot about different issues whether it's civil rights groups or environmental groups or Good Government groups. And many of those groups have overlooked the common threat to the things they want to accomplish from the packed Supreme Court. So if you're a member of an organization like the League of Conservation voters or a civil rights group then you know, use your membership platform to say, hey by the way you guys, I think as an organization we need to have a position on what's going on in the Supreme Court and on dark money. And the last thing is that politically we can get rid of this dark money. If you look back at the Citizens United decision that let unlimited money pour into politics 8 to 1, they actually said, oh and by the way this unlimited money we're letting pour into politics, it's corrupting, it's corrupting and the way we're gonna defend against that corruption is by telling everybody that it's going to be transparent, that's gonna be the defense against corruption. It won't be anonymous money, it will be identifiable money. And of course they were provably demonstrably and completely wrong about that. And they've never cleaned up that discrepancy between if it's anonymous it's corrupting and we're cool with it being anonymous, but we can fix that because the way the decision was structured, they had to allow for transparency so we can accomplish that transparency in Congress. It's my bill, every single democrat voted for it and we last called it up. Unfortunately every single republican voted against it because it is the one red line for Mitch McConnell that you may not cross him on. So it's gonna take more public pressure to move voting so that we can actually get that bill passed and bring transparency. By the way, everybody hates dark money. It's that issue that jane Mayer wrote about in the new yorker when she got her hands on the transcript of the conversation between the Koch brothers minions and mitch McConnell's minions and they were talking about this one issue that was like Kryptonite, they couldn't fix it, they couldn't clean it up, they couldn't make it right and they said and their people, their tea partiers hate it just as much as the Bernie bros, everybody hates this and the this that it was is is dark money. So the public is there and the pressure just needs to be brought to bear on the unfortunately compromised political institutions of our country to shackle unshackle themselves from the dark money. Yeah. Can you say like how a person like me or anybody in this room could say in like two sentences? What's the problem? Like if you just say dark money, people don't quite understand what that means. If you say the Supreme Court judges are being bribed. I mean, that's kind of over the top maybe even though it isn't. Um So what, so how can you just say this in sort of the people's language that aren't lawyers or even that well versed in political issues. I would say it's long been uh stated that money is the mother's milk of politics and when that money is allowed to flow in unlimited denominations and through hidden channels that milk turns pretty rancid. So let's find out who's making the big donations, we're entitled to know that. And by the way, Rhode Island's own brucella up on the first circuit had the chance to write a decision for the first circuit about this maybe a year ago. And he was crystal clear on that point that part of being a democracy is being able to evaluate what somebody's messages by understanding what their motives are and you can't understand what somebody's motives are if they're by the mask and you don't know who they are. Yes, sir.

Question: Hi. So I've read the book. Um and I think it's fantastic. I actually told my wife that it reads like a true crime novel um which which I like, but you touched on Supreme Court justices auditioning for their role through prior cases. And and then we've seen through the tera and you've alluded to mitch McConnell and the money coming in, we've seen kind of laws and standards pushed aside in what seems to be just um for power um for personal game. So, and and I understand that you're saying, you know, there's not an appetite for the american people from this type of thing. But if if people in Congress are concerned about their own power, their own reputation that people on the court are concerned about their own power and reputation, then how can we as the american people trust that the organization, the institutions will fix themselves.

Whitehouse:   Really, really good question. And um I would say that when corruption and orderly governance contest one another, the curve, it's like that, it's very easy to eliminate corruption through orderly governance at the early stages. And then as it becomes more and more acute and there's more and more corruption, it becomes harder and harder to find places of orderly governance that can push back against the corruption. And then the next thing, you know, you're in Russia and there is no such thing as orderly governance and everything as a show and everything is corrupt and it's all run for Putin and his oligarchs. And the terrible question we all have to face the citizens is how far down that steep learning curve have we slid? I hope that the results of this election being a little bit better than we feared are a signal that there's some brakes on that curve. Um I'm delighted that people are just furious about the dark money in terms of the polling of the public is exactly where you'd want them to be. So now it's a question of making sure that we put pressure on those political institutions to either conformed orderly governance and push back on these avenues of corruption or face consequences. And of course that's why they packed the court because they don't face consequences. You can't vote them out. But that's how I how I'd answer. You hope we're not too far. So it could be.  either way. It could go either way. I'm confident that we're okay. But it's plausible that we could continue to spiral down and get to a point that really hard to come back from our son graduated from Notre dame law school and guess who one of his professors was. She's clearly a very, very bright person and she was a very charming person in the hearing. She never lost her. Cool. She was very thoughtful and all of that. So her persona was fine. But she was chosen for a reason. But he was, he thought she was just a little too right at the time that this was how long ago, 10 years ago, maybe 10 years ago? She was a professor there. He thought she was a little too much to write a thesis proven. Yes sir. So what what what makes you confident that we're not in the Putin track? Well, as I said, I think some of the results from this election are a signal that people are themselves pushing back. Um there was a very widely held um strain of thought that talking about democracy, it was a stupid thing to talk about that people only cared about gas prices that the president should not have given his speech about democracy because it was who cares, it's inflation and it's um gas prices and as it turned out it really wasn't. And one of the test cases coming back which I'm really happy about was Catherine Cortez masto, my colleague who won re election in Nevada by the tiniest, tiniest of margins. And when she when she came into this, you'll remember that literally the day that Putin crossed the border into Ukraine, the fossil fuel propaganda machine unleashed itself on prices are gonna go up. It's all biden's fault, you know, putting immense pressure on the american consumer and we were on the losing end of that fight. Uh And she in her race with Laxalt turned that around and she went on offense, She didn't just go on defense. She said, wait a minute fossil fuel industry sets prices, not the president. This isn't communist Russia. The industry set prices. And by the way, we know how they're gouging because they got to tell the truth and their financial reporting. So when they report their profits, we know they're gouging and you sir are in their pocket, you sir have been taking their money. You sir will not stand up for nevadans. You will do whatever they tell you to do and let them keep gouging. And you know, basically in a nutshell, you are corrupted by the fossil fuel industry. And that turned into a winning argument for her. So that's just another little signal that the public is willing to listen to this if we would talk about it more and not just reflexively go to where the pollsters tell us. Yeah,

Question:   thank you. Thank you very much for the I haven't read the book yet, but thanks very much. I saw, I saw your presentation about the dark money earlier in the congressional hearings. Um, Well what I was gonna say is when you when you, I was listening to jerry mandarin discussion in Wisconsin and that the populace is democratic yet yet, you know, by, you know, a few points for the governor, but the, but the house, the two houses are, you know 65 to 35 due to the gerrymandering and how that relates on this slope you referred to because if you can't control, don't choose any longer, then you've got a real problem. Right?

Whitehouse:    How do you, how do you, I'm gerrymandering has always gone. Well, traditionally was a little bit here and a little bit there democrat or republican, but now it seems to have ped that pale. Is it, is it retrievable? Yeah. Well traditionally when they were gerrymanders, the original gerrymander was right up the road in massachusetts and the original, I think his name was actually pronounced gary. And, but anyway, when they designed this weird lizard shape district for him, that was the gerrymander, the purpose was to punish him. And for a long time gerrymandering had the purpose of punishing the people who didn't like and making it hard for them to win And helping the people you did like and making them easier for them to win. But when this red map effort rolled out in about 2010, right after citizens, United um, it had a different purpose and it was to actually make things a little bit more difficult for the people you liked and a little bit more easier for the people you didn't like, but to the point where you were affecting the overall balance of the state's delegation. So you would take all the democrats you could find in Ohio or pennsylvania and you would pack them into districts that you drew around them for maximum democrat density And then that left you the rest of the state to a portion out to Republicans? So I think it was in 2014. If my memory is right when they had that race. After the citizens united the Pennsylvania, Hi, we're virtual ties and the delegation went like 2-1 I think in one case it was even 13-5 In favor of the Republicans because they packed every democrat into those five districts and they could now run the table in the 13 with 60% margins. And so it's, it has a whole different purpose now. And sadly again, it's a it's a blow against the Supreme Court. The Supreme Court said, Oh, this stuff is too complicated. It's non justiciable, which means we can't adjudicate it, we can't determine it. And in my view, that was not true. And in my view it had been proven untrue by all the courts below that had already just initiated it. If that's a word successfully at the trial level and then at the circuit court level. So they came into an array of cases and precedented decisions that had no trouble at all adjudicating justice, creating whatever you wanna call it this. And then out of the clear blue sky they said, nope, non justiciable, we wash our hands of this, go for it. Republicans. And the dark money poured in the dark money was behind red map. Yeah, fine mess we got. Yeah. How aware, I mean, do you think Amy coney Barrett and Kavanaugh are aware that they were bought in. Uh for sure. Kavanaugh is for sure. Uh I don't know enough about Amy coney Barrett to know whether she lives in a bubble of her own views and has just the bubble just happens to be exactly the kind of bubble that the federalist society folks were looking for and liked and wanted to get onto the court. But I know for sure that cavanaugh knew exactly what he was doing. Kevin aw did this stuff for President Bush and that's how he got to know Leonard leo who was organizing the outside money and influence over those appointments. And if you want to know the power of this operation. Even early on, I remember a woman named Harriet Myers, Harriet Myers was White House Counsel for President Bush. She was very conservative. She was female at a time when it would have done them some good to put another female judge on the court and she was very conservative. And she knew him personally in his White House Counsel. She's around him every day. Up goes her name as the nominee and the President had to effect a humiliating withdrawal of her name because of the pressure, not from us, not from the left, but from the far right saying no, no, no, she might be another suitor. We want somebody who's gonna be more like bark and we're still mad about it. And and so he had this uproar he had to quell on the right. And so Harriet Myers with withdrawn and in her place came a relative unknown who we all know right now because his name is Samuel Alito. So when you're powerful enough network that you can make the president of your party withdraw his own White House counsel to put your person in after the White House counsel has already been named. Mhm. That's some power. So that's what we're up against. Kavanaugh watched all that happen. He was not on the trump list And he was desperate to get on the Supreme Court. So how do you get on the Trump list? So he went auditioning. He did like I wanna say 50, he did the Great Federalist Society Road Show and he went to Federal Society is everywhere and he made sure people understood and he wrote things that he knew the big donors would like into decisions that he was writing as the D. C. Circuit. He was a champion audition. He auditioned like you would not believe and then next thing you know poof suddenly he's the nominee and nobody's complaining that he's not on that list. So if the list was such a big deal why would you not complain if somebody was picked off the list? Unless somebody knew that? Mhm. Behind him. Uh Well thomas was came on very early on really before this got very robust and I don't know because it's now too old to know the full back story of how he was selected and what role far writers had. They were really mad about bork. So they were, you know, looking to have people like that come in. Um it's interesting to watch what's going on right now and why he's not recusing what's going on. You remember the in the first decision he made about investigating the insurrection, he said, why couldn't be expected to recuse myself? Had absolutely no idea what my wife was doing. Had no idea she was involved in an insurrection plot out of my house. Yeah, but even if you believe that now in this recent vote, we're at a stage where everybody knows what mrs thomas was doing. He must read the papers, he must know now too. So how is it now? He doesn't recuse himself. It's kind of a it's a conundrum and it relates back to them having no enforceable or investigate able code of ethics. I just want to say,

Question:    I'm Not trying to give a shout out to your earlier book captured, but I started reading this one and I thought I want to go back and reread captured and I've been enjoying that so much. And the chapters do sort of stand on their own and you do talk about agency capture there and you talk about the insidious Lewis Powell Memo back from 1971, right before he got on the Supreme Court. It's the specific Supreme Court.  Yeah, yeah, so I'm really deep in and Can we do between now and December 31, is there anything you can do about you know, the Senate with the house while we still have enjoying it. But I do want to ask what  Can we do between now and December 31, is there anything you can do about you know, the Senate with the house while we still have both bodies on the ethics and the Supreme Court and refusing. I think. 

Whitehouse:  um there's a good chance that the house Judiciary Committee might have some snap hearings into this last episode. This is now twice that their allegations of leak of decisions that were being cooked up in Sam alito's office and this time there's a live witness saying I was told I knew and he's got a whole array of contemporaneous emails and things like that where he's telling people you're gonna be really happy with decision. I know and he sent the hobby lobby executives up to sit there in the Alito and Scalia seats and watch the decision, which I don't know if you do if it was gonna be, you know, like dagger under the case they're trying to make. So they're all there's all this evidence suggesting that in fact he did know he actually acted as if he knew he didn't just say it. So it's gonna be interesting to dig into that particular feature of the mischief and I strongly suspect that between my coordinate chairman hank johnson and House Judiciary Chairman jerry nadler and departing speaker nancy Pelosi, the decision will be made to move rapidly out into a hearing on that and they can move more quickly than we can because of the way their rules work. So God bless them if they go, I wish them well and I hope to help. And what would be the outcome of a hearing that would have a long term impact. It would continue to build the case that something is seriously wrong with the court. The court is desperate to convince everybody nothing to see here folks just move along and for those like me who believe that there's something very badly wrong with the court and manifest itself over and over and over in innumerable different ways. Then you've got to push back against that pressure that this is all fine and normal. It's not fine and it's not normal, but the veneer of this being fine and this being normal is what allows them to keep doing what they're, what they're doing. And so anything that takes a bite out of that veneer of normalcy and everything's okay. I think it's important and at some point, you know, there's a breakthrough, we didn't get Watergate on day one of the hearings. It took a lot of work and a lot of investigation. I think that's that's what we need to do about this court, how much of a difference will it make? If not if when senator Warnock is reelected  

Over  over  

Whitehouse:  what's his name? So the question was for those who've been here in the fact how much difference does it make if when Julia corrects me, um Senator Warnock wins over herschel walker. The difference that it makes is that when the Senate is 5050 as it is now, we are organized under an organizing resolution that has its roots in earlier 5050 senates and it has some limits on what the so called Majority Party can do. So for instance, we don't have a majority on the judiciary committee. We're just tied. If a judge comes through and gets a tie vote, they don't automatically go onto the executive calendar for a vote on the floor. So if the republicans want to slow things up and they vote against the judge, they just sit there in the committee and we have to go to the floor and get chuck schumer to put an extra vote on. To move that candidate from the judiciary committee up to the executive calendar and then start the process of voting to get them confirmed. So it would speed up our process of clearing nominees. Would also accept where the committee rules provide otherwise allow us to get subpoenas right now in a 50 50 environment, you need to get a republican to join you to have enough votes to get a subpoena. So our investigative capability and our confirmation capability would both improve quite a lot. And those matter in an arena where we to legislate have to deal with speaker McCarthy. So it's going to be a challenge. But we can confirm and we can investigate to our heart's content. So having that added flexibility, that added power is going to be advantageous when Warnock wins. Yes. Um, has there been any discussion on the judiciary committee related to expanding the court?

Whitehouse:  And um my, my response to that is that, yep, take a step back first and understand that democrats at product rollout. So, and as a lawyer, you know, if I was to go into a judge and say I need extraordinary relief in this circumstance, I'm not gonna get it. In fact, I'll get thrown out of the courtroom if I haven't made the case for why it's important first. Or if I were a doctor, somebody came at me with needles No way but explain to me what the illness is and how the needles will cure it. And suddenly everything changes. So whatever your analogy is, it's important. I think that we make the case first, which is why I went to the trouble blew all those weekends and nights writing this book to help make the case so that the aperture of how you fix it opened more widely because if everybody thinks the Supreme Court is fine and this is all normal and this is just weird democrats trying to take over the court and do court packing like FDR then we're going to get a very different response and people understood and what went wrong. This is a captured court. They're behaving in completely predictable ways and totally aligned with the big donors who put them there. And that has to change because when you're doing that, you're not a court any longer. Is there a possible process? The term limit? Uh the uh the Supreme court justices, that's my first question. My second is are you gonna be on NPR anytime soon? They have me on from time to time. There's a nice talk show up in boston that puts me on from time to time. Um and for this book, they may have me on at some point um with respect to term limits for the court. I've actually filed a bill that would do just that. And I think it's quite clear that we can do that. The question is can we do it retroactively so that there's gonna be an interesting conversation about that. And if it were to pass, there'd probably be litigation about that. Which would be very interesting to the Supreme Court then be deciding itself. So yeah. But yes, I'm pursuing that. I think that at the moment my pursuits have been primarily about transparency. So if you show up in court as an amicus curiae to lobby the court and the way you think a decision should come down. You should have to disclose who's paying you to be. There seems pretty clear if you are a justice and you are getting lavish hospitality, you should have to disclose that you got the lavish hospitality and who gave it to you and they don't right now they don't follow the rules that everybody else does in that regard. They've got a trick for getting around it and where there's a recusal concern, there ought to be a forum of some kind where you go to have that recusal recommendation sorted out. You shouldn't be allowed to just decide for yourself. Hmm I'm feeling mighty honorable today. I don't think I have a problem. I'm just gonna go ahead and decide this case. That's not the way it's supposed to work. In fact that principle is so old. It's in latin nemo jude x in su a causa never a judge in your own cause. And yet that's the way the Supreme Court operates. Say nobody tells them there's no investigation, there's no inquiry, there's no determination, there's no reporting. They just plate plate the way they want to. Yeah, nice job. If you can get it back there. What does the chief justice actually mean? I mean what is why do they say Chief Justice? If there's no it doesn't seem like he has any power to say anything to thomas or um no I'm not gonna be expert on this but there are a couple of things that the chief justice has um he has the ability to assign the case as long as he is in the majority he can decide which of the justices in the majority is going to write the case. If he's in the minority, he doesn't have that. And the senior justice who's in the majority of the case then decides who's going to write it right now, that's thomas. Um So he has that um he has the um preeminence in questioning to go first and all of that. So there's some ceremonial aspects. He leads something called the Judicial Conference and calls it every year to an annual meeting that he holds, that helps direct administrative stuff in the court and he's the court's Chief Administrator and those things come up relevant to this in two ways. One, you saw that when that alito leak went out of his draft opinion, they all got mad as hell. And they said, we're going to investigate this. The Chief Justice said, I've asked the marshal to investigate this. So, he clearly demonstrated his belief that he has the power to order investigation. And what I've been asking him and telling him and indeed told him at the last judicial conference meeting, which I get invited to. Not his favorite invitee. I'll tell you is OK now that you've established the proposition that you can order investigations into matters investigate what thomas knew and when he knew it about his wife's activities in the insurrection, pretty straightforward investigative stuff. So it opens it opens a window for him to lead an ethics regime in which there is at least investigation with traditional investigative principles that if you lie, you know, you're accountable and it's not just press releases from the judges so that I think is pretty important. And then of course, he could always move to try to adopt a code of ethics and to determine a way in which that ethics code could be enforced. So he has, he can't affect any other judge's decision in a case that they're all absolutely independent on. But this administrative and oversight aspect of it is very real for him. And my guess is he wants absolutely no part of it because it's a mess and it's gonna make some of the judges mad at him and all that. But it has to be done. So we're continuing to pressure him dude, as long as you can investigate. And here's something that's eminently investigate herbal and it really depends the outcome of whether somebody should have properly recused themselves. Really depends on that investigation. You can't not have one. So we'll see how that all turns out. But that's the kind of overlay that, of being chief. I'm just wondering that it's so illogical that corporations are people that I'm just wondering to what extent with the new the new justice, whether there's any listening to logic or is it just the dark money power and like how do how do they dismiss logical argument, what's up with corporation suddenly being people? Well, if you don't mind just a quick race through history, if you go back to the constitution and to the philadelphia debates and to the federalist papers, there's not a mention That there's a roll anywhere in this for corporations zero. So the idea that they have a role in here has no originalist foundation. What so ever big corporations grabbed a lot of power and ran railroads and mining companies and really corruptly until teddy Roosevelt came and basically championed for the whole country trust busting and getting rid of it. And you had those wonderful writers who were doing all the investigation, the muckrakers and all of that and they kind of pretty much put the corporate power back in its box. Until as I described in this book, the U. S. Chamber of Commerce hired Lewis Powell and said how do we get power back? And he wrote this memo that laid it out four months later he's on the United States Supreme Court as Mr Justice LeWIS Powell. And while he was not at all right wing in terms of a lot of the social and cultural decisions that he made. One thing that he did very deliberately decision after decision after decision was create and expand a role for corporations in our political system and in elections, the role that corporations have in our elections right now is an invention. It's an invention that begins with the baladi versus massachusetts case of Powell's and it culminates in Citizens United. But it is an invention and it was invented by Republican appointees on the Supreme Court and like frogs in the pot, we just kind of let the pot get hotter and hotter and let the corporations get more and more power without realizing they have no business in this at all. I mean the ceo has enough advantages being a ceo without having the whole corporate treasury to be able to launch into politics. Like you know, some giant transformer beast. If citizens can be drafted, why can't corporations since their citizens, they're not corporeal citizens? So it makes them a little hard hard to draft. Yeah, but it's a very good question of just exposing the illogic of of all of this. Yeah. What's the deal with christian fundamentalism and how much is that driving? What's the deal with christian fundamentalism and how much of that driving this? Um I suspect a fair amount. Um because the far right has long stood on two pontoons, one is a cultural pontoon and the other is protecting corporations from regulation and polluters and all of that and binding those two pontoons together has been very, very important. So when this whoever it was that picked the list and was in the room at the federalist society when they picked the judges. They were looking at how people were going to be on both cultural issues and on call it polluter issues. And I think for a lot of these folks, very rigid religious views were part of the sale pitch, part of the credentialing that made them um suitable candidates for the court. And it was reassuring to know that somebody felt so deeply about, let's say the abortion issue that it was, you know, imbued into their spiritual core, meaning that they're less likely to go south and do another um pennsylvania type decision where they said, yeah, we disagree with it. We've got all this precedent. So we're gonna go with the precedent. So I think it was it was it was an indicator for the people picking the judges that this one would be reliable on the cultural pontoon. Yeah, man, I haven't read the book yet, but I bought it and I'm excited to. So you my question you may have answered in the book. Um, and I'm just wondering if you, I know you've explained why you wrote the book, you know, but was there a moment that you remember something happening where you felt like, okay, I've got to write this book? Was was um where you're willing to stay up weekends. There were actually 2, 2 moments. The first moment was when Harry Reid, then majority Leader of the Senate told me that he had been instructed by the Obama White House to cut the knees out from under nancy Pelosi and kill off her cap and trade bill that she had fought through the House and actually passed and that we were gonna do nothing on it. It was just gonna shrivel up and die because people were tired. They've been all this rancor about healthcare and Obamacare and they just want a little bit more peace and quiet. Yeah. Kind of generally yes. And that really infuriated me and that's why I started doing these my time to wake up speeches because nobody was talking about climate back then. I just said, well damn it every week, somebody's gonna talk about climate, if it's gonna be me, it's gonna be me. And as I did that I started looking into what the hell went wrong because when I got to the Senate climate was a bipartisan issue. Had a lot of people with bipartisan bills and then january 2010 all of that died like a heart attack. Just bang What happened in January of 2010 citizens united and the fossil fuel industry was ready for it. And they pounced and they have the tools now to tell mitch McConnell, get your caucus lined up and you'll never want for money again, don't and go look at bob Inglis in the house because we just hung him from a lamppost to show everybody what we do to people who won't line up and with that this artificial partisanship on this issue began. So I started looking more and more into this and then at the same time I started seeing weird things happening at the court. I I used to do, I was an appellate practitioner, I've argued in the Supreme Court. I'm no great shakes, but I know the landscape. So I was an early person to say, wait a minute, that's not that's not right, you shouldn't do that, what what's what's what's up with that. And then I began to notice that a lot of the same groups that had been in the climate denial business were showing up in the court packing business. So that really got my attention and one day in the caucus we're having lunch, it's perfectly nice day. And I stood up, one of the decisions had been just rendered by the court and I said, you know folks this is gonna sound a little strange, but I think we really got to think of the court in a different way. We just can't give it credence that it's playing all this on the up and up. I think we gotta look at it the way you might look at a captured agency. And we've got to think about a way to try to fix it because I think they're coming after us and they're serving other masters and all this is wrong. And I basically got like quietly heckled back into my chair saying, no, everybody in the Supreme Court, you know how we can't possibly challenge its integrity or you know we got to support it as an institution and all that sort of stuff. So at that point I thought, okay I'm gonna have to make this case. So I went back and started writing that the first article that I wrote that went through the record of the Supreme Court and showed that like 72-0 was their record in wins for the money folks behind them when it was a 5-4 civil case. And then by then I was armed and the next time I brought it up again, I got before I could get that. You know, skeptical, let's call it that way skeptical reaction. Dear Pat Leahy who has been chairman of judiciary, who was chairman of appropriations, who's the president pro TEM of the senate, stood up and said you guys he's right, we gotta do this, we gotta think about this whole new way. So was that sitting back down in my chair thinking boy did I not make the sale just now and then figure out what I'd have to put together to to come back That was really where this started. Yeah. In the back getting back to dark money and what we can do. I'm interested in what you see as the value or validity of state ballot issues such as just passed in Arizona. I think it's terrific.for a moment you're in a great position to do this? What is the peril if you could describe it? If a state um decided, well, we're just the Supreme Court, We all know they're corrupt. We all know there, but we're just going to ignore what they say and legislate on a state level and just ignore what's the, describe the peril of that? The peril of it is that it 

Question:  I am a law professor and I teach health law and I've been no, not at all. Um what know what I'm interested in because I I often have a hard time articulating this is given everything that you've articulated so well tonight and I am sure in the book, although again, I haven't read it yet, but um how has the affordable Care Act survived? Such as as it has the numerous assaults on it in the in in our legal system that have made it to the Supreme Court. It's it's fascinating to me reading some of those cases that justice roberts, you know, I would love to hear it.

Whitehouse:  So here's my theory of the case when the affordable care Act came to the Supreme Court Chief Justice roberts who was a very smart person and very well connected in kind of the ceo and corporate boardroom environment of the Republican Party and a very committed republican recognized two things. First, he recognized looking around that the republicans had no alternative, but if they threw this back, his whole party would be like, what was the, the um Warren Buffett says that when the tide goes out, you find out who hadn't got their pants on. So if the tide flooded out because he said that wasn't there, suddenly there would be the republicans with no pants on. With no alternative, what do you do? So it would have been intensely damaging politically for the party, irrespective of the noise and the storm, wondering about, you know, how bad Obamacare was, they hadn't done their homework in that case to have an alternative. The second thing is that you might have undone a lot of it, but you wouldn't, you were never going to be able to undo getting rid of the fact that the law got rid of, of adverse selection. The fact that you had to take as an insurance company all comers meant that if everybody's playing by those same rules, you're fine. But if you've broken it down and now suddenly you've got no support and you have no place to move high risk people and you own those folks, then 30 people who come in with liver cancer and you've got a huge problem on your hands. So the business model of insurance was threatened by the outcome of throwing out the supports of Obamacare without the adverse selection problem being solved. And so I think he knew from an insurance point of view, this very powerful, very wealthy, very Republican supporting industry was going to take a harpoon in the heart if Obamacare was undone in the way that it had to be undone. So you look at those two things and you can say, well, I'll take a little heat and by the way, as a sweetener, he threw in two doctrines, that one, he shrank the commerce clause quite a lot, which would have been like front page news if it had happened outside of all the ruckus about Obamacare and then he created this new, what they call it, anti dragoon ng doctrine so that the federal government couldn't require states to do stuff by conditioning funding on it to very, very powerful doctrines that kind of snuck by everybody because they were so it was very, in my view was a very clever and strategic decision and completely consistent with him being full on a republican operative. Maybe the insurance company is different than fossil fuel industry in terms of power.

Question:  Yeah, without a doubt. I just wonder you do you have a colleague in the Democratic Party who is basically you sound like a lone wolf fighting a very difficult, is there anyone, is there anyone beside yourself that is the passion and the interest too. 

Whitehouse:   When I've been writing these three, my most loyal co authors have been Dick Blumenthal of Connecticut and Mazie Hirono of Hawaii when I've been tangling with the fossil fuel dark money operation. My most loyal compadres have been brian shots also of hawaii and martin Heinrich of new Mexico. Um so I go out and find friends and we work as small teams as best we can. Um I've also tried to augment my effort on the house side and keep your eye on a house member named Ro Khanna from California who's been terrific on all of these issues who really gets it. And then if I'm in trouble and I need someone to come to my rescue and like say to the twitterverse, this guy's right um Elizabeth warren who has a huge following has very often stepped in to say when I'm getting like troll out of control um she can counter troll very effectively and she's she's been a super, she's been very loyal. So that's been some of the people I've found to be very helpful. Yeah wrap it up. Justice Kavanaugh. I watched the judiciary hearings with questioning him during that. I got to admit I worried for your health during that time because I thought you were like ready to explode several times. Uh He went through the whole process. He's sitting as a justice now. But there's been talk about him possibly having done something or having some issues that might make it so that he could be impeached for something that was either either not really you know, revealed or not brought up or not investigated by the FBI. Is that is that a possibility? And would that process be the same process they brought in to impeach a President? I wouldn't hold out any hope for an impeachment because it takes 67 votes and the republicans are even more determined to protect this majority on the court than they are to protect President trump. I've got to wrap it up. So I'll tell two very quick stories that everybody can go home and have fun. The first is that um the FBI behaved very curiously during the Kavanaugh investigation. And I've been on them like a I just have not refused to let go. And we finally got Christopher wray the director of the FBI to admit that they had not done a proper investigation of Kavanaugh. That the quest that there had been no FBI protocol that was followed, that the investigation had been driven structured and directed by the political folks in the White House and that that tip line, which was the way they let information in after that weird brief period of we don't accept information right where the Federal Bureau of Investigation and suddenly they were immune to information. It's just very unlike them. Never seen that before in all my years. So they opened the tip line and it turned out they've now admitted that the information that came through the tip line got split into stuff that related to Kavanaugh and just the usual whatever it was and the stuff that and the stuff the usual stuff went through the usual process and the usual review and was referred for investigation. And the FBI followed its procedure. The stuff that related to Kavanaugh went straight into a box that was taken uninvestigated over to the White House and given to them with the realistic prospect that that tip line sent information to the White House enabled them to tell the FBI who not to ask questions of because they knew who would give damaging testimony. So now they've admitted it, I'm still pushing. So we're gonna we're gonna look more the funny one is that when I was doing the Amy coney Barrett thing and I had the graphics up that showed all the dark money stuff. We were targeting a group called the Bradley Foundation that had funded a lot of the briefs in that case. So the Bradley Foundation goes berserk. They're mad as hell. The Wall Street Journal editorial page, which loves me to the tune of, I think 35 hostile editorials did a particularly savage one about saying bad things about the Bradley Foundation. What they did not know when they wrote that is that I did know that the Bradley Foundation runs a fake parallel universe thing to the Pulitzer prize and it's called the Bradley Prize. And it may sound funny, but it's a quarter million dollar prize. It's a nice chunk of cash. And four of those have gone to people associated with the Wall Street Journal editorial page, a little factoid that they failed to disclose when they're going to bat for the Bradley Foundation, which is not what you consider good journalistic practice. So, some days are fun. Thank you all for coming out. And uh ….