Behind the seemingly pointless noise and bluster of American politics, there are a few key factors that explain how we got where we are today. Exhibit A: the Supreme Court.
It did not evolve to its current 6-to-3 conservative majority by accident. What tipped the scales, in fact, was a 50-year right-wing project that can be traced back to a single secret memo — a brief document that laid out what a sympathetic Court could do to protect corporate America.
Elucidating how this conservative project changed the direction of American politics has been the work of my guest on this week’s WhoWhatWhy podcast, Rhode Island Democratic Sen. Sheldon Whitehouse.
In what he calls “The Scheme,” Whitehouse details how that secret memo, written for the national Chamber of Commerce by attorney Lewis Powell — who would later become a Supreme Court justice — launched a plan by corporate interests to take over the majority of the Court and put forth a series of decisions that today adversely impacts the air we breathe, the climate we endure, the dark money in our politics, and the income inequality that helps divide us.
What drove all these changes, according to Whitehouse, were cases taken by the Court and decided in ways that effectively bypassed Congress, the White House — and the will of the American people.
If you want to understand what’s really going on in the United States today, listen to this illuminating conversation with Sen. Whitehouse.
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(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)
Jeff Schechtman: Welcome to the special edition of the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. Our democracy is hanging by a thread. Climate change threatens the sustainability of life on this planet. Income inequality seems to transcend the legitimacy of even the most ardent capitalists, a loss of faith in the institutions of government to do the right things for its citizens, a political system awash in and controlled by money that lacks any real transparency.
A legal system all the way up to, and including the Supreme Court that has been captured by corporations, and a social value system that once admired and rewarded public service, that now only respects and values the accumulation of greater and greater wealth. If greed is in fact good, we should be in a world that is better than ever, but of course, that’s not the case. Amidst all the noise and bluster of our politics, deep down there were reasons that got us to where we are, to the level of corruption we face today.
These fundamental problems didn’t happen in a vacuum. They were not the result of a series of spontaneous and unfortunate events. They happened because it was in the best interests of individuals to make them happen, because it enriched some, gave power to others, and spawned a network that made the worst of its excesses legal, secretive, and self-perpetuating. My guest today, Rhode Island Senator Sheldon Whitehouse has been engaged in a series of speeches and a soon to be released book looking at the scheme that got us to where we are.
A scheme in the classic legal definition of that word that reshaped the Supreme Court and was able to accomplish through the court what couldn’t be accomplished legislatively or even from the White House. It has been, as the very definition of the word scheme says, a combination of elements of statutes or regulations that are connected, adjusted, and integrated by design.
Sheldon Whitehouse has been a United States Senator from Rhode Island since 2007. Prior to that, he served as attorney general of Rhode Island and was a former US Attorney. He’s a graduate of Yale and the University of Virginia Law School, and it is my pleasure to welcome Senator Sheldon Whitehouse here to the WhoWhatWhy podcast. Senator, thanks so much for joining us.
Sheldon Whitehouse: Jeff, thank you for having me on and bravo on a killer opening diagnosis of the evils that bedevil us.
Jeff: Well, it is so interesting that so many of the problems that we face today, the environment, money in our political system, corporate power, income inequality, we can go down the list, all stem from, in some way, as you have argued, decisions that have happened as a result of what’s transpired on the Supreme Court since the early ’70s. Talk about that first in a very general sense.
Sheldon: If you look at the history of regulation of corporations in this country, it has a parallel history, which is the history of what’s called agency capture or regulatory capture, where the industry would pick its people on the agency and wine and dine them and give them lots of opportunities to hang out and basically recruit them to their way of thinking about the world so that the agency became the tool of the industry rather than the regulator of the industry.
And I’m afraid to say, at some point, it became somebody’s bright idea that if you can capture an administrative agency, you can capture the Supreme Court, and why not? And they went very deliberately about capturing the Supreme court, and I think now the big donors behind it can say mission accomplished, and the great thing about capturing the Supreme court is that you can get judges who don’t face elections and voters to do things for you that you can’t even make Republicans do in Congress.
Jeff: One of the things that becomes clear as this evolved, that it really started with former Supreme Court justice Powell, all the way back in the ’70s, that he had an idea of how to really enhance corporate power through the courts.
Sheldon: Yes, he got recruited by the US Chamber of Commerce to write basically a strategy memo on how corporate America could respond to the civil rights movement, the environmental movement, the women’s movement, things that were disrupting the status quo that they enjoyed. And he wrote a really hot memo, full of warfare terms talking about essentially the end of America as we know it if they don’t react. And in that memo, he had a very, very big role for corporate power, corporate influence, and intermediary groups that could disguise who the corporation was so they didn’t have to take responsibility for what they were pushing.
And then within literally months, he was put on the Supreme Court by President Nixon. The memo was never disclosed to the Senate or anyone else as best I can tell. And when he got on the court, he wrote three separate decisions or participated in three separate decisions that opened the gateway for corporations to have a significant and established role in our politics, which is obviously something that the Founding Fathers would have never imagined in this “we the people” country of theirs.
Jeff: And there is a direct line, and we don’t want to get into the weeds in every case, but there’s clearly a direct line between those early decisions, the Powell memo that you talk about, going all the way up to Citizens United and this idea of corporate personhood and money is speech.
Sheldon: Yes, absolutely. You can draw the through-line. There are a few hiccups along the way when the court reckoned realistically with political reality and the Austin decision was actually a good one, but the effort to pack the court with judges that thought the right way about these things has resulted in those hiccups for the plan being completely overwhelmed.
And the Citizens United and then the recent Americans for Prosperity Foundation decision, I think, are the low points of this effort to credential corporations as entities that belong in our politics permit anonymity in political speech so that they can hide who they are and knock down limits on spending so that they can have powerful effects above and beyond the merits.
Jeff: And this runs to some of the issues that we’re hearing about today, particularly this expose that Jane Mayer did last week in The New Yorker looking at Ginni Thomas and the organizations that she’s involved with, the wife of justice Clarence Thomas, and the influence that those organizations have had on the court.
Sheldon: Yes, one of the structural telltales that Jane talks about in her piece, is the advocacy in the court of groups that appear as amici curiae, friends of the court. And there’s actually a rule in the Supreme Court that they’re supposed to disclose who they’re there for and who funded them, but the way it’s written, they’ve taken it to me, and did you actually contribute to the printing of the actual brief, a paper brief and its dissemination to the parties and the filing fees in the court? Anything else, you don’t have to report, and of course, that’s where everything is.
So it’s created this armada of front groups that are anonymously funded and that have no real purpose in life other than to show up in the court and broadcast the message of their donors, and very often they’re orchestrated to show up in fleets of 11 or 12, or in one case, 50 so that the judges really get the message that folks, this is what the big donors want of you. This is your moment, time to step up.
Jeff: Why has this been allowed to go on to the extent that it has without more pushback coming from either the opposition party or from outside forces that clearly could see some of what was going on?
Sheldon: Well, the court has been a very, very poor policeman of itself. They could simply redefine the way they read the reporting rule and clear up this problem, and they haven’t wanted to. The lawyers that are closest to the court and that appear there regularly tend to have an interest in making sure that the court is happy with them because they’re selling to their clients the relationship and confidence that the court has with them. So they’re not a very good alarm bell either, and for a lot of people, this gets a little bit far from the day to day and I’ll confess that we Democrats have done a pretty crap job at letting this thing get way out of control before we started to respond.
Jeff: And yet in the senate, to stay with that for a moment, Mitch McConnell has made this his life’s work.
Sheldon: Yes, it happened in plain view. And even with it happening in plain view, we’ve managed to do a crap job of calling it out and responding.
Jeff: And at this point, with a six to three majority on the court, what is your sense of what the future holds?
Sheldon: Well, the break on the ambitions of the donors that have stacked the court has been the sense on the part of some justices of the need to defend the institution. And I think that tension was particularly embodied by Chief Justice Roberts, who was about reliable a big donor vote as you could get until a moment came when it looked like it would be opportune to break from pattern and make the point that he was different and that the court was a proper institution and that precedent mattered, and things like that.
When you get to six-three, he’s no longer the swing vote. So the ability of the dark money majority to deliver for the interest to put them on the court dramatically expands by much more than the difference between six and five because what was not possible before suddenly becomes possible. And then as long as it’s going to happen anyway, Roberts now has a different decision, which does he go along with his group and not isolate himself further, or does he put the marker down that this is a bridge too far?
Jeff: The other side of that question, of course, is have they achieved their agenda? What’s left for them to accomplish?
Sheldon: They’ve achieved a great deal of their agenda. I would say that the primary center pole in the tent of their agenda has been this role for corporate and billionaire money in our politics to allow it, to allow it to be unlimited, to allow it to be anonymous. And as they’ve built that more and more and more, we’re really on the threshold of this Supreme Court creating a constitutional right to corporate and billionaire dark money in politics. And that’s why the Americans for Prosperity Foundation case was so bad because that was the first real beachhead in the battle to establish that last right, the right anonymity that then allows politics to be a complete, oligarchy-run festival of lies and slime and manipulation.
Jeff: Is there a legislative fix for any of this?
Sheldon: Yes. Absolutely. Particularly with the dark money, we could pass laws that required reporting. Now that there’s this new constitutional right to dark money, we bump up against that and the court hasn’t defined it yet, it’s just been a little beachhead so far, but we would have that to deal with, but yes, you could pass a law requiring transparency, and you could cite back to the Citizens United case, which had the premise that all this unlimited spending was going to be transparent as its predicate, as its baseline assumption. Sadly, the court refused to enforce that premise once it became clear that it was a false premise, they just let the dark money grow.
Jeff: To what extent do you hear from your colleagues, your democratic colleagues, a realization that this has transpired, that this has happened over the past 50 years? And what it would take to begin to unravel it?
Sheldon: Yes, I think there’s been a transformation in the democratic caucus in the last few years as we’ve watched, not just the decisions coming out of the court, but the really bizarre and peculiar behavior of the Republicans to make sure that the court was packed with the big donors selected nominees, come hell or high water, no matter what rules or principles had to be broken to get there.
The bad decisions had been growing for a while. The pattern was evident, but if you weren’t watching it regularly, you could just not pay attention. But when you’re in the Senate and you’re seeing what’s happening around you with Senate committees and rules and traditions, it’s hard to miss that. And I think there’s not a member of the Senate democratic caucus right now who has not had their epiphany that something really seriously wrong has happened with the court.
Jeff: The other part of it is that it affects so many things. It affects environmental issues, it affects election integrity issues, virtually everything in one form or another has some linear connection to this activity.
Sheldon: Absolutely. You can tie environment to the five to four partisan decision of the court that undid the Obama Clean Power Plan. You can tie voter suppression to the five to four partisan decision of the court that undid the pre-clearance provisions of the Voting Rights Act. Those ties are very, very apparent.
Jeff: Is there a simple way to make the American public understand this? Because there’s a certain complexity to the issue that defies that, it seems, on the surface at least.
Sheldon: Hey, for a long time, I had trouble making my colleagues in the Senate understand this. We’re over that hump now because we had that direct personal experience of watching the violence that McConnell did to the institution to get his donor’s court nominees in place. I think it could be that the Texas abortion case, some of these other decisions will send that real life signal out to people where they pay more attention.
I think that the democratic groups are beginning to see that they have common cause, because as you said, pick an issue, there’s a way in which the Supreme Court has harmed the public side of it and helped the special interest side of it to the detriment of civil rights groups, environmental groups, good government groups, you name it. So I think it’s coming, but I also think it’s incumbent on those of us who are in office to speak up about it because the public often takes its lead from the people who represent them in Congress. And if we’re not talking about something as being important, then it’s hard for the public to take it on as being I important.
So there’s a responsibility on us to up our game and to call out the court when the court is misbehaving.
Jeff: In the 50 some odd years between when Powell wrote his memo and where we are today, the very nature of corporate America has changed. The companies that were in the Fortune 500 50 years ago, more than half don’t exist anymore. There’s a whole new world that represents corporate America today. Is their agenda the same? Has it shifted? And can that have an impact on how this plays out?
Sheldon: I think in some respects, although the positions of what industries are strongest in the economy and in the politics might change, the fundamental goal of the political effort has always been me, me, me, me. Less taxes, less regulation, more profits, better ability to cheat, whatever the desirable goal is, that persists through time irrespective of the dominant industries of the day.
What I would say the huge transformation is the creation, thanks to the Supreme Court, of this enormous archipelago of fake front groups, whose job is to intermediate between those corporate entities and the political system, and have grown to a position where they can actually effectively dominate the political system when they choose to. And they’re completely unaccountable. They often don’t even disclose who their donors are. They have these creepily anodyne names like the Heartland Institute and the Heritage Foundation. And they are able to, working at these political and governmental issues 24/7, power up the corporate sector in a way that regular human beings just can’t compete with.
Jeff: Is the amount of money that is pouring into these organizations, these ancillary organizations, all of these boats out there, is the amount of money the same or more today?
Sheldon: Infinitely more. It’s multiple tens of billions every single year. And that sounds like a frighteningly big number, but consider that the International Monetary Fund, which is a pretty reputable economic organization, has quantified the subsidy for fossil fuel companies in the United States from their ability to pollute for free at around $600 billion every single year. So if you can spend a billion or two and get friendly judges on the court, so that it’s captured and will knock down President Obama’s Clean Power Plan, even if you were only saving a tiny segment of that $600 billion a year, even if you’re only saving 1%, that’s still $6 billion a year and that justifies your expense.
And of course, you’re not just doing that, you’re doing a lot more. The payback is probably in the 100 to 1, 1,000 to 1 level every year from even big investments in this political manipulation and it turns out, Congress can be a cheap date.
Jeff: Given the six to three majority and given the younger members that have been appointed to the court, it does seem that this will be the condition of reality for quite some time.
Sheldon: I think until the American public has the realization as to what is going on, which is our job to make the case, they’re like the jury, they’re not supposed to go out and do the investigating, we’re supposed to make the case to them as their elected representatives who do this work.
And I think if we do that, that can put the court sufficiently on its heels, that it goes back to the proper role of a court, and it stops doing all these telltale misbehaviors like throwing out precedent that they shouldn’t throw out, making up facts that they shouldn’t be, fact-finding, extending beyond the parameters of the case before them to make larger societal decisions, and venturing into disputes that aren’t real cases or controversies as required by the Constitution. Some of those things could shrink the court’s ambitions back to what the Founding Fathers intended.
Jeff: In terms of bringing the public along, how does the rise of populism, both on the left and the right, the good and the bad of it, how does that play into making people understand this?
Sheldon: Well, I think part of the rise of populism has been the very strong sense by Americans that their government is not responsive to them any longer. And I think the court has a role in that by doing a lot of things that it shouldn’t have been doing in the first place that the public hates, like allowing unlimited dark money into politics. And on the other side, on the legislative side, allowing so much money and special influence that Congress gets jammed up.
And now you have peer-reviewed scientific studies of Congress that show that statistically, we are in fact, not responsive to real people, and in fact, we are highly responsive to big special interests. And you don’t need a statistical study, to start feeling that that’s the case when you’re not being listened to, and I think that is a part of the fuel of the populism.
Jeff: Of course, the counter to that is the way in which identity politics and division is fed into the system as a way to counter this, as you’ve talked about in terms of the whole paranoid style of American politics.
Sheldon: Yes, the great old article from the ’60s, I guess, still very worth reading. I’m not a good judge of what is going on in the politics of division. I do think there’s a case to be made that some of that is stirred up to keep the public from paying attention to who’s got their hand in the tail and it’s quietly robbing the country of their ability to vote, their ability to have a Congress that listens to them, their pocketbooks and wallets.
The corporate side doesn’t want big public victories. They want as little attention to what they’re doing as possible. So they and Fox News can stir up a whole lot of unrelated passions and get people quarreling with each other. If you want to pick people’s pockets, there’s no better time to do that than in the middle of a quarrel, or a riot.
Jeff: Do we need heroes to emerge from the corporate world?
Sheldon: I’ve been hopeful about that for a long time, but we just aren’t seeing it, and there have been lots and lots of opportunities. Right now, for instance, a lot of corporations have put up with the United States Chamber of Commerce being reported out as one of the worst climate obstructors in America, top two, tied for the twin championship. And it was only when it was publicly reported and people started to call them to account that their corporate membership started to say, “Oh, wait a minute. Now, this is embarrassing.”
They weren’t there, when it was happening. They were only there when it started getting called out. And they’re only there a little bit because what they’ve done is they’ve set up a US Chamber of Commerce climate conversation group and anytime the chamber is asked to do anything that would be good on climate, it goes into that conversation and dies, goes into a stall.
Anytime they’re asked by the fossil fuel industry to do something wicked for the fossil fuel industry against climate, that goes into effect immediately without any bounce in the so-called climate conversation. So you have these corporations that are in a good place on climate that are part of an organization that is one of the worst climate obstructors in the country and they’re allowing themselves to be used as taxis having this phony conversation while the organization goes on about its business on all the stuff that helps the fossil fuel industry and hurts climate action.
So there’s a willful blindness in corporate America about all of this as long as they’re getting their tax breaks, their industry benefits, their deregulatory goals met, and it’s really unfortunate but no, there have been no heroes.
Jeff: Senator Sheldon Whitehouse, I thank you so much for spending time with us today here on the WhoWhatWhy podcast.
Sheldon: Thanks so much for having me on. I really appreciate it, Jeff.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you’ll join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.