Become a sustaining member of the. Commonwealth Club for just $10 a. Month. Join today. Hello and welcome to today's Virtual Commonwealth Club
program. I'm Melissa Kane. I'm a political analyst and attorney
and I'm your moderator today. It's my pleasure to be here
with the author of The Scheme How the Right Wing Used Dark Money
to Capture the Supreme Court. Our guest has been representing
Rhode Island in the U.S. Senate since 2007, and he's a senior
member of the Senate Judiciary Committee. Today, we'll be discussing his new book
and taking questions from viewers. As a reminder, we encourage you all to submit your questions
in that text chat on YouTube. And now let's turn it over
and say hello to Senator Sheldon Whitehouse. Thanks, Melissa.
Wonderful to be with everybody. And I'm grateful for the invitation
from the Commonwealth Club. We are so happy
to have you here to ask questions. But first, let's just start
with a broad question. Your book is called The Scheme. So give us a summary. What is the scheme
you describe in your book? So I think the idea is that
people need to have in mind for the rest of our discussion
are some pretty simple ones. The first is that this is really not a conservative court, not by any standards
of judicial conservatism. It's really more a captured court. So you have to have conceptually
the notion of regulatory capture or agency capture,
which is a long phenomenon in U.S. history, a very, very unfortunate one. But you can imagine, you know,
19th century railroad commissions that were captured
and run by the railroad barons. So that's kind of the model. It's had a long, long,
unfortunate history, as I said, all the way up to,
if you remember, the Minerals Management Service
that allowed the BP oil spill explosion to happen in the Gulf after a lot of very,
very bad regulatory effort. And then the other is that how this was
done bears a lot of resemblance to what you and I would probably ordinarily
think of as a covert operation. And if you think of the intelligence
efforts of intelligence agencies
scheming, to use my word, in other countries, a lot of the stuff that intelligence
agencies do to accomplish their goals in other countries
is exactly the kind of stuff that was done to effect
to the capture of the Supreme Court. So if you have in mind a covert operation in this case,
run in and against our own country by special interests
and a captured agency, then I think the pieces begin
to fall into place pretty quickly. Well,
and so you the way you structure the book now, you're
you're an attorney, former U.S. attorney, I believe. And the way you structure the book is is sort of by making a legal argument
and you sort of lay the chapters out as like a sort of a lawyer
making a legal argument. You have a chapter on motive
and means and coconspirator powers. Why make the decision
to delay the book out that way? Because the problem, as the title suggests, is dark money. Dark money is the means through
which this scheme was effected. And the very definition of dark money
is that it's anonymous. You don't know who's doing the spending. They hide themselves. That's
what makes the covert operation covert. So you have to deduce a lot of this, and that takes you into the realm
of circumstantial evidence, which is very good evidence and a lot of very evil
people are spending time in prison because of circumstantial evidence
proving the crime that they convicted. But they it takes a little bit of
of doing to set it up that way, because there's it's not like a news story
where you find somebody who can tell you something that blows the scheme wide open. You've got to actually assemble
all the evidence the way a prosecutor would. So that seemed to me to be the best model
for first structuring the book. And was there a particular moment
or a piece of information that really set you on the path to trying to put these these pieces together? Or tell us what inspired you
to finally say, hey, I think this is what's happening
and I want to tell people about that. Well, in my jobs, before I came to the Senate, as you say, I was a lawyer, but I also did
a fair amount of appellate work. I've argued a case in the U.S. Supreme Court. I've argued cases
in two of the circuit courts of appeal. I've argued frequently
before the state Supreme Court here. And for a lot of reasons,
those appellate cases fit into a busy schedule and worked for me
so doing the appellate work was my sort of litigator,
bread and butter. So when the court began to behave
in very weird ways, it was apparent to me fairly quickly
because I had been exposed a lot to a proper appellate
practice looks like. And when they veered off those rails,
it was easy for me to notice and I began to express concerns about this in the in the Senate. But my colleagues
hadn't really gotten there yet. And there were some rather
difficult moments when I was basically told to shut up and sit down
because what are you talking about? The Supreme Court depends on credibility. We can't possibly criticize it. So I thought, okay,
I've got to figure this out and and put some evidence
before my colleagues. So I wrote an article
that was vetted by a lot of people and went through
what you might call red teaming and was put out there for public scrutiny
and nobody has critiqued it. But when I did that, what I found
was that the record was actually worse than I was afraid of and that nobody
had put the case together yet. And one article,
you know, lost in some groups journal is one thing,
but I figured more needed to be said. So I tried to take that and expand it
into what became this book. Well, I have to say, one of the things
as a reader that really stuck out was the Powell memo. It's something you write about
sort of early on in the book and as something that's sort of
an important road map for for the scheme. I would I would say
I'm not sure that you would, but, you know,
it seems like a pretty good outline. Can you talk about that memo
and how you came to discover it and what impact it has had on
the trajectory of things that came after? Well, there's been kind of, you know,
progressive legend about the Powell memo. And as I became more concerned
about the Supreme Court, I went and actually found it, dug it out. And it's a memo that was written
by an attorney named Lewis Powell for the U.S. Chamber of Commerce to respond
to their concerns about the loss of corporate power and the rise of what in the sixties was called liberalism. And we now would call progressivism and how that was interfering
with their business models, how that was interfering with their ability
to sell themselves, how they were being, you know, ridiculed and condemned for,
you know, the products that they made and the lack of safety
and the pollution and all that. So they hired somebody to put
a strategic plan for corporate America together to push back
and reclaim power in the country. And what was interesting is that
this lawyer, Lewis Powell from Richmond, Virginia, turned his memo into the U.S. Chamber of Commerce
and about four months later got sworn in to the United States
Supreme Court as Mr. Justice Powell. Weirdly, nobody turned over this important
memo that he'd written to the U.S. Chamber of Commerce to the Senate
in his confirmation process. So it was kind of a secret
that slowly emerged over time, but it laid out several strategies
for reclaiming corporate power, what they thought
was a loss of corporate power. And one of the strategies
was to look at courts and to understand
that courts were a powerful force for shaping the culture and the economics of our country and to go about it deliberately. And so the seed at that point was planted
that a court wasn't just an arbitrary thing out there
that just dispensed justice. It was an institution
that had no effect on how the country ran. And if you could control an institution,
you could make enormous progress. And then, of course, that developed over
time as they tried to do things that people hated politically
and for obvious reasons, they failed at doing those things
that people hated politically. So the idea kept coming back, Oh, my God,
if we could do this through the court, nobody has to.
You know, they're bombproof. They don't have to run for reelection. They can do what we want. So the focus then shifted. And I don't think that the Powell memo was
the beginning of the scheme necessarily, but it certainly laid out
for the first time to interest in corporate powers the notion
that capturing a court was a potential means of exerting power against the will
of the people in our country. Well, do you want to to to dig into that
just a bit? Because to some degree, the scheme itself relies on this idea,
as you write in the book. The court doesn't answer to voters,
but I mean, it kind of does, right? I mean, voters like people
like you to go to DC to make laws that then the courts have to abide by or interpret appropriately. And so when you look at things like
and that's not, you know, constitutional amendments
are harder to do, but certain pieces of legislation like the Federal
Arbitration Act can be amended. I know you've tried
you've been trying to amend it so that there there rulings
would actually be more constrained. So mean there is some check on the on the court's power,
even though it's it is difficult to do maybe it is
more difficult to do these days. Yeah. And where you have
I mean, the obvious premise of the book is that the capture of the court
and the direction of it has resulted from its capture are aligned
with big Republican donors. So the fact that there's an alignment
with the Republican Party should be no surprise. So if you really want to do this,
you get the court to do what you want. And then you use your Republican forces
in Congress to prevent exactly the type of changes or corrections
or repairs that you're talking about. And, of course, if they're starting from a position of deciding
what the Constitution says and that they're making constitutional
laws rather than interpreting a statute, then some of the worst decisions
they've made have been hooked into constitutional provisions so
that it's much, much harder to undo them. You know how difficult it is
to amend the US Constitution. We do it very,
very rarely and it's a real ordeal and it takes a long, long time. So they have many, many years
for their decisions to play out, even if you could amend the
Constitution to repair it. And one of the things I mean, you do talk about in the book
is this the you know, couple of early victories
on dark money and that that really paves the way for other various
anti-regulatory challenges. And so can you talk a little bit
about how that sort of sort of starts a machine that that then, you know, allows to your point or prevents various amendments
that might otherwise be made? You sort of very smart lawyers or, you know, however
you want to maybe whatever word you want to use
there started with. Let's
open it up to to unaccountable money. Yeah. Well, it actually begins a little bit
further back than that when the court or at least the Republican members
of the court first opened up the American political system
to corporate participation, and that was the job of
none other than Lewis Powell. And his first decision was called Bellotti versus
Bank of Massachusetts to not let the Bank of Massachusetts spend money
in a referendum election in the state of Massachusetts and created
the proposition that they had a business in a state election,
a referendum election, which if you go back to the constitution,
if you go back to the constitutional debates in Philadelphia, if you go back to the Federalist Papers, nobody talked about a role
for corporations. I mean, the whole idea is preposterous. And that was the first foothold
of corporate power. And then, you know, on went the decisions
gradually building on that until we finally got to the real problem
child which is the Citizens United decision which let unlimited amounts of money into politics. And that was the great bellwether
not only just into any election, not just a state election,
not just a referendum election, but across the entire political
frontier of the country. Unlimited money could be spent. And of course, the people
who are going to be spending unlimited money are basically either corporations themselves
or the forces of corporate wealth. So it was that wide open gate
for corporate power into our democracy. Well, you so I live in San Francisco. I'm in San Francisco right now. We certainly are in a place
where we have large tech companies that that aren't necessarily or at least don't appear
to necessarily be on the right. I mean, can we can we necessarily assume that all corporate money
is going to right wing or this sort of federalist society engineered line of cases and line of, you know, line of changes
that they'd like to see in the law. You know, isn't there some room for
for companies to to give money and be part of left leaning or,
you know, sort of anti anti conservative causes? Yeah, we'll have to see about that. You know, this is all new. The Citizens United decision was decided
in January of 2010, and the interests that went immediately into action
based on that decision were primarily right wing interests,
anti-regulatory interests, interest, who had a lot of engagement
with government because they were heavily regulated,
polluting interests in particular. So the Koch brothers
and their big operation, the whole fossil fuel industry, I think they were
the ones that really started this off. And over time, other groups
and other donors have piled in so that the actual spending on both sides
has become more balanced. But the thrust of it
still has this very heavy, regulated industry component to it. And so to me, it still has that lane or that bias. And if you think of it as a way
to actually make money as opposed
to just a way to express yourself. So look at the fossil fuel industry. They've got a $600 billion
annual subsidy in the U.S. from being able to pollute for free,
says the International Monetary Fund. Right. It's not greening,
is it the International Monetary Fund? So if you're protecting $600 billion,
you can spend an enormous amount of money to do that. And somebody who's coming in
just to be a good citizen, somebody who's coming in for, you know,
illegal mercenary or charitable purposes, isn't going to sustain the kind of effort
that you will sustain if you're basically paying yourself 600 times your investment every year. So that's where the
I think the bias is not just one of past experience, but also one
that can be projected into the future. And certainly that's been the direction
of the court under the influence of the dark money funders that got them there. Now, is this an antitrust argument? I mean, could
because it will always make more sense. I mean, if you're if you're a company
that is so big that you have hundreds of billions of dollars at stake in
a, you know, based on a regulatory issue, whether it's through the courts
or the legislature or whatever. I mean, it's always going to make sense
to spend 1 billion, you know, who's counting to
to influence that. I mean, is is there an issue with with
with some of these companies just being too big so that that equation is always going to make sense somehow? Yeah. Well, there's, I guess, two things there. One, it's always going to be an issue,
particularly now that we've got you know, multi-hundred billion dollar corporations,
the amount that they can spend to influence politics successfully compared
to what they have at their disposal and wherewithal is a tiny little fraction. So it's very,
very easy and a big invitation for them to get involved in politics
and try to manipulate our politics. When you have these huge aggregations of corporate wealth and I'm sorry,
I forgot the other part of your. I was just saying is there
is there an antitrust issue there needs to be done to make it
so that in this equation. Yeah. You know, stops making sense for for less. Because of the because of the petition
clause of the Constitution. That's
always been a limitation on antitrust law that when companies get together
to ask the government for what they want,
then that's not an antitrust problem. So when the fossil fuel industry
gets together to plan a scheme on what they're going to ask Congress
when they're doing their political planning,
that is separate from combining and conspiring to raise prices, even because it's being done
through the political system. And the petition clause has been read to protect that from antitrust scrutiny
for a long, long time. So they've got an antitrust restriction
free highway to spend that immense amount of money. Well, one of the. Things to do to do it together, to combine
and conspire and plot and plan and scheme together,
as long as they're trying to get government
to act in the way that they wish through the channels of the petition clause. Well, it does seem like,
you know, it's always going to find a way. It's so little. It's not a not a feel good presentation
here. No, no. But what what you want is is as long as the money is going
to find a way, people should see it. And that's where the dark money
problem comes in. Even in Citizens United,
the Supreme Court actually said anonymous political funding is corrupting. And that's why
that yeah, it's kind of a dull moment. But they said it and then that's why
they had to make this finding in Citizens United that all of this
unlimited spending they set loose was going to be transparent,
that people would know that at the end of the ad, it would say, you know, we're ExxonMobil
and we brought you this message. And of course, that didn't happen. And it's been over a decade now,
and the court has failed to clean it up. And the result has been that citizens
like you and I are disabled from knowing what's going on around us, because the ad that comes up on our
television screen at the end of the day, after smearing people and lying
and saying all the horrible stuff, that is now our conversation in politics. Well, then say this ad was brought to you
by, you know, Citizens for Peace and Puppies and Prosperity,
which is a nothing phony front group that just hides the identity
of who the real spender is. So citizens now are denied the ability
to know what player is in what Jersey and understand the political contest
that is going on around them. And that's probably the worst thing about
dark money, is that it disables citizens and makes them helpless and unknowing
consumers of poisonous messaging. Well, yes, I was recently in Las Vegas. And and we don't get so many political ads here in San Francisco
with Nancy Pelosi on the ballot. Once again,
we we have very few, you know, sort of large scale political fights here. But in Nevada, it was so strange because every ad was a political ad. Yeah, right. And every political
ad was not candidate endorsed. Right. If it from the candidate's campaign,
if you and they say, yeah, exactly. I endorse this message. But there was like maybe one of those
all the other ads were from. All this peace and prosperity,
you know, these. Tiny, tiny writing at the bottom of it. Yeah, yeah. Even one that. Had, you know, pause it and figure it out. And when that happens,
you can smear to your heart's content because you will never be held accountable for whatever
horrible things you're saying. You can lie, you can smear,
you can be as awful as you please because there's no accountability,
because the speaker is this anonymous, phony organization
that can be disposed of like toilet paper
when the election is over. And and you pointed out something.
It was so weird. I saw on YouTube somebody sent me a link
to a YouTube video a few years ago. Mitch McConnell is running for reelection
and there was this video of him just happened to be there on YouTube
where he's sitting at his desk and he's like shuffling and paper
and he's smiling at the camera and it's very weird. You don't understand. Initially, I didn't understand
what is for her. Why is he smiling at the camera? I'm just doing random stuff in his office. And then, you know,
as you point out in the book, you realize
this is for third parties to use to put in their ads. I mean, they're not cooperating,
you know, with a capital C, but I mean, they're seeing these strange little
YouTube videos out there. So they're for B-roll, essentially for
for for these ads, too, to do as well, which is something
that I think our viewers can. Kimberly, that. Was the scene. That was the second big premise of false
premise of Citizens United. One premise was, oh, well, don't worry,
because all this spending is going to be transparent. You'll know who it is
that didn't work out. The second was, this is all going to be
independent of campaigns. This is just going to be companies
standing up and stating their position, you know, in the public sphere. And of course, that's not the case either. Candidates and their dark money groups are virtually indistinguishable. In fact, you have super PACs stood up
just for a particular candidate in a particular race. So the idea that those things
are going to be independent is ludicrous, but it's telling that the Supreme Court
has never gone back and cleaned up those false
factual premises, despite the fact that time has proven them
indisputably false. And that's kind of how we get to the role
of the Supreme Court in all of this mess. Well, you have actually tried for many years now, I believe, to to to clean it up to the Disclose Act,
I believe is is one of your projects. And that you introduced every year. And and yet it hasn't been enacted. Have you considered, you know, suspending the filibuster
or, you know, is it worth that to get the votes
and get this passed? I think so. I think it's deeply corrosive
to democracy. Even the Supreme Court that gave us
Citizens United and set loose, unlimited spending still thought that anonymous,
unlimited spending was corrupting. So it should be no surprise when we have
lots of anonymous political spending. By the way, we just hit $1,000,000,000
in anonymous political spending for Republican Senate candidates
in this cycle, $1,000,000,000. So it's out there. They know it. It's on the front page. It's obvious, and they won't fix it. It's pretty telling to me
that they refuse to fix it. And it suggests to me that they had an ulterior motive
when they wrote that decision and they weren't sincere about enforcing
that transparency premise. At the end of the day,
they've had plenty of opportunities. John McCain was pretty legendary as a expert in campaign
finance stuff, and he and I wrote a brief to them
early on saying, Hey, guys, you blew it. This funding is neither independent
nor transparent. We see it. We're in the middle of this. You've got to go back and fix this
and it's one thing to blow off the junior senator of Rhode Island,
but it's another thing to blow off. Also, John McCain,
who was a, you know, very serious guy, presidential candidate, legendary campaign
finance champion, very knowledgeable and made our brief bipartisan
so they couldn't shrug it off. It's just, you know,
something from the left, but not enough. But I do think that to get the DISCLOSE Act, it is worse
to get this corruption out of our system. It is worse. And I would describe it as not getting rid of the filibuster
I describe is going back to the filibuster so that we actually have a system where the minority in the Senate
gets to slow things down, gets to say
their piece, gets to filibuster a way for some period of time,
but at the end of the day, we get a vote and at the end of the day,
that vote is majority rule. And if it takes two weeks or three weeks
or two months to go through that process, if it's important enough,
you can still do it. And to me, that's important
from a democratic point of view, and it's really important
from defending against corruption. And my understanding is Democrats
have pretty much across the board voted in favor of the DISCLOSE Act. And having said that,
I mean, there are some pretty big progressive, dark, dark money groups,
I guess you would say. The The Atlantic wrote
an article about it, says, Democrats have quietly pulled ahead of Republicans
in untraceable political spending. What do you what do you make of that? And should they be using that money
to try to undo some of this? Once you let bazookas on the battlefield,
everybody needs a bazooka. Otherwise,
you're just going to get rolled. So we were slow
and it took us years to catch up. And the Republicans
had contested dominance in this space for a very long time. But now we've caught up. But that doesn't change the fundamental
problem that this stuff is corrupting and it's poisonous. And we have
it has no business in our system, and we've got to get it out. And my bill would get it out on both
sides. Republicans can't do it. Democrats
can't do it. It doesn't matter who you are. When you spend more than ten grand
in an election, the voters should know
who the heck you are. So that's really
where the focus needs to be. Who is trying to get rid
of this poisonous stuff in our system and who is trying to protect it? And at the moment, that's another
sign of how the bias is still in place. If it weren't biased
in favor of Republicans, they wouldn't be taking a very hard vote
because the public hates this stuff. So it's not an easy vote. They wouldn't be taking a very hard
vote to defend dark money. Well,
insofar as they've used the dark money to then entrench people who will defend
dark money. Would you encourage
or have you encouraged your, you know, other progressives
and Democrats to use this money to use these resources
to to fight for more disclosure, to fight in favor of candidates
who would support the DISCLOSE Act and sort of count to try to counter
some of that instead of just saying, hey,
I've I've got a bazooka, too. Yeah. Yes. I'm a constant voice for that in part. This is a whole long, separate saga,
so I won't go down the road. But I don't know. This is the Internet. You can. You got some time. People. People hate this stuff. And left or right, it doesn't matter. A Bernie bro
and a Tea Partier hates anonymous, enormous spending in politics
just as much as the other does. I mean,
the American public hates the stuff, and when you ask them about it,
their reactions are really violent. I mean, they're appalled. They they want to be rid of it. So I think we should be much, much more aggressive as a party, taking on this publicly, as an issue
about corruption and about why the economy isn't serving you and about why you don't
get your voice heard in Washington. So, yeah, I believe very strongly
that we'd be in a far stronger place as a party if we had made taking this form of corruption out of our system
a priority. Is it is it a problem that we see some
and this is what some people I feel like this is a phrase it's overused
but so forgive me cancel culture that that there are such
real world ramifications for people who have lost their jobs
or been kicked out of school or, you know, there's there's sort of examples of people
who have really been been hurt
by saying something by their speech. And so the the idea being that, you know,
we do need an avenue where we can contribute and be anonymous
because otherwise, you know, sort of the world is a dangerous place
for people who express certain views. What do you say to people
who are concerned about that? Money is different. Everybody is free to express their views
and they can put a face up on the Internet. We've got Russians
working through fake personalities on Twitter and Facebook
arguing in our politics. So it's not as if there's
not plenty of room for hidden voices to come in and express themselves. It's different when you're writing
$1,000,000 check to get a candidate elected because money is
the so-called mother's milk of politics. And money is a different thing
because of the linkage to corruption. And again, you know, even the citizens United justices
admitted that linkage to corruption. And, of course, we see it now. We actually see it happening in plain view
because we see these academic studies that say Congress doesn't respond
to what people want any longer. There's it's a null hypothesis. They do not respond to that. They respond to what the people
with the money want. And so that's the difference. This is not about silencing anybody
or canceling anybody. This is about people who want to spend millions of dollars,
hundreds of millions of dollars to quietly get their way with politicians who will sell out their vote
for the money. And if that's being done in the dark,
if that's being done anonymously, if that's being done behind closed doors,
covertly, in clandestine fashion, then it's really bad because the public
isn't in on the information they need to connect the dots. I have a question here from a viewer. It says here,
Do you think the Supreme Court should be expanded? Well,
there's a problem, not an easy question. I'm a lawyer, and I believe that if you're going to ask
for extraordinary relief from a judge, you're under a very strong obligation
to make your case as to why extraordinary relief is needed. And clearly,
changing the number of members of the Supreme Court
is an extraordinary relief. And in my view,
we have not made our case yet. That's one of the reasons
I spent all those weekends and nights writing this book so
that people would understand how important what was going wrong at the court was
and why it happened, how it was dark money, special interests that controlled who got selected, how it was dark money,
special interests that are advising them on what they should be doing
and getting these astonishing results. Once people understand
that whole saga, once you understand, like the doctor says, you've got a diagnosis,
you've got an illness. Here's how we need to treat it. Then the treatment makes more sense
for you to understand. If you just come waltzing up and say, Oh,
by the way, we need to do a lot operation on you and do some chemo
and some radiation. Why? I don't want that.
I like my life as it is. Why would I want to change what I'm doing? You've got to understand that
there's a problem first, and I don't think we've done a good enough job
of explaining the problem to take that step yet. I do think that there are a lot of reforms
at the Supreme Court that we can do right now
and that I've argued for right up to and including term limits, but also a ton of transparency so that the court is no longer
the locus of so much dark money activity. I mean, it's ridiculous. There's not a country in the world
where a private organization that was taking enormous, anonymous was tasked with picking Supreme Court
justices. We laugh about it. If that was done in Bulgaria or Bolivia
or some other country, and yet we did it ourselves and nobody
really followed that story enough. So again, that's the story
I'm trying to tell how it is that special interest picked
so many Supreme Court justices and how it is
that they tell them what to do. Well, that actually ties in nicely
with one of our audience questions, which is, what do you suggest to make the scheme more accountable? And one of the things that you talk about
that that I've been sort of vaguely aware of, but is really infuriating
when you really kind of keep when you kind of dig
into it is the idea that the justices on the Supreme Court are not beholden to the same kind of professional ethics
for a court lawyer to as are you? I mean, they're ethical standards
that we all have to uphold and that they exempt themselves from it. And and you talk a little bit about. Yeah, really, it's pretty stunning. Well, there are three easy things
that we could do. The first would be to make the spending
that takes place for TV ads for Supreme Court confirmations. You should have to disclose that the way
you disclose other political ads. It's a political it's done
by political ad makers on behalf of people with political interests in order
to create a political response. So that stuff should be disclosed. The so called Judicial Crisis
Network should not be able to accept a $17 million anonymous contribution and put ads up on the air for Garland and Kavanaugh and Barrett for Gorsuch and Kavanaugh on ballot
and against Garland without describing
supposing who that $17 billion donor is. And it's even more important
if a 17 million donor dollar
donor has a business before the court. So that's an easy one. The second is
who's showing up at the court, telling him what to do through these
so-called amicus curiae briefs? There are way too many groups
that have no real function that their real function is to be a mask through which a big special interest
can make its pitch to the court without showing a who it is, and b
how many separate briefs they finance. So that's a mess. A third one is, as you said,
fixing the code of ethics. And there's a real problem
with disclosure, particularly having to do with
when a judge should recuse. We're seeing that right now
with Justice Thomas. He says he doesn't know anything
about what his wife was doing to interfere in the election
or to push against abortion rights. But now everybody knows. And the question what he knew
and the question when he knew it. Or ones that lend themselves
to being determined. You investigate, you ask. You do a little report. You find out. And so the fact that they don't have
any place you can go to to say, hey, somebody should actually ask the question,
like in a real investigative way, what did he know about his wife's activities
when he decided to rule on the decision about the congressional inquiry into the insurrection? And what did he know about his wife's
activities when he ruled in the Dobbs case? Because that's basic, as you know
so well as a lawyer, the most basic thing is that judges need to recuse
when they have a conflict of interest. And the fact that nobody's even bothered
to inquire into what the real facts are. If he gets to just say,
that was all, it was all good here, that shows how bad that situation is. So those three things, if they were cleaned
up, would do the court a lot of good. Is that something you could legislate? I mean, can you force the court
to adopt a code of judicial ethics? Yes. Yeah. And we actually in my bill,
we actually do something nice. We say, look, we're going to we're going to we're going
to put a code of ethics on you. But you've got 180 days to do your own. If you you know, if you've got a problem
with what we're doing. That's they've got to be friendly
enough of. Their own mess. And it's it's it's not complicated. The Circuit Courts of Appeal
and the District courts are already under the ethics code. All the court has to do is say,
yep, we'll do that, too. And by the way, here's the place
where you go to complain or to have somebody investigate
and see what's gone wrong. It's not complicated. And you don't have to necessarily
throw that Supreme Court out if what, if ever, does it
simply made a public report that would put a real stopper on
some of the weird behavior at the court. Interestingly, a lot of those judges are pretty mad at the court, too,
because they see the stuff that they can't do because of the code
and they know what's right and they see Supreme Court justices
blowing through that and violating the rules that they have to live by
and they know it's wrong. Is that part of the DISCLOSE Act
or is that is that a separate. Those that separate the DISCLOSE Act,
the DISCLOSE Act would just require people spending more than ten grand
to do an ad for a Supreme Court
nomination, tell everybody who they are. Oh, okay. Well, we've got some audience questions
here. One question
is, aside from eliminating dark money, what is the most challenging issue
facing our country? Oh, that's a big one. And I would probably say it's the quality of the information that citizens receive. So it's one thing not to know
who is behind huge expenditures in your politics, but we get lied to
in really unprecedented ways as citizens. Right now, they're holding loosely news
networks that are dedicated to propaganda. And I've just got the feeling that,
you know, if you remember years ago, nobody really cared that much
about pollution. We had to have a change
as Americans and say, wait a minute, the rivers are too filthy. One just caught fire. We got to fix it. And then we changed about junk food to people
you see, like Wonder Bread. And that doesn't happen
so much any longer. And we live a lot longer. And again,
the American people learned something and changed their behavior in it
and succeeded as a result. So I think we need to go, through
one of those shifts as a population, to learn more about the pollution and the junk food in our in our news
and information diet, because otherwise we're going
to get led very bad and dangerous places by people who have evil intentions in
what they put into the information world. For us, it's not a curated by major media
any longer. It's not curated by major newspapers
any longer. It's a free for all. And so very bad forces
are taking advantage of it. There's no way to get government
to curate it. So people
themselves are going to have to learn again how to figure out what's pollution
and what's junk food and learn to steer clear of it
that our political health will be better. Excellent. Well, and one of the other things you do
talk about in the in the book that we have a question about
is the Kavanaugh confirmation. And I was really surprised. Maybe I shouldn't have been,
but I was surprised to read that actually members of the Senate
were sort of stonewalled when it came to finding out
what happened to the FBI investigation or other tips or information
that might have come in. Can you talk a little bit about a bit about how they did
Kavanaugh confirmation process and what you you were
and were not able to to get from the FBI? Yeah, well,
I've worked with the FBI for a long time. Being a U.S. attorney.
You do that as a attorney general. A lot of criminal authority
in Rhode Island. You know, we also had a good relationship
with the FBI. So I've been around the FBI for a while. And the behavior of the FBI in the
Kavanaugh investigation was just weird. For starters,
they became impervious to information. They refused to accept
tips or public information. They would put up nobody to take a phone
call from. Somebody who had a story
to tell about Brett Kavanaugh. Very odd for an investigative agency. Doesn't have doesn't happen
in the normal course. Then when they did,
they wouldn't explain how it worked. And that was also a little weird. Usually people are pretty candid
about the procedure. So we dug in. We dug and we dug. And what we found out was that
when they finally opened a keyhole to allow some information into the FBI
about Brett Kavanaugh, that keyhole was in the form
of their tip line, which is a phone call tip line
where you call in and you leave a tip. And what they do is they sort through it
to see what the topic is. And if the topic was Brett Kavanaugh,
they pulled it out and before anybody investigated it,
they sent it over to the White House. So no FBI person ever investigated a Kavanaugh tip
that went over to the White House. So when the FBI is running a fake tip line, that's very often FBI. That is a really big sign of huge
political pressure on it, right. I mean, if you imagine a Palm tree
sitting there on a regular day, okay, that's a regular day,
that sort of palm tree looks like. Then one day you see it,
you know, that way in the in the storm, you know that there's a gale blowing
because you see the palm tree bent over and all the palm fronds
turn off to the side. That's the kind of obvious nature of the FBI bending under an intense gale of political pressure
to do something that is very urgent. FBI And at the time that you were writing the book and that
that it was going to print, you said us still had not received certain information
that you had requested from the FBI. I mean, if Biden is president,
have they had they been more forthcoming still digging? We had a hearing with Director
Wray in which he at least admitted
that the tip line was a fake, that there was no investigation
done to the tip line. And he also admitted that the field investigation,
the questions that were asked and the witnesses who were allowed to be
interviewed was determined not by the FBI, but by the Trump White House, which they had not confirmed before. They had pretended that
this was all done by procedure. But when you pushed for them
to tell you what the procedure was, the procedure they said
was that, oh, well, for this kind of an investigation,
we don't have procedure. You know, again, the FBI is a very honorable organization
when they're telling you we did this by procedure,
but when you dig, you find out that the procedure is
we have no procedure. That's a weird starting point to say, yo, we did this completely by procedure. So, yeah, I think they're a little embarrassed by all of this and
I don't think they want to have too much come out. But we're continuing to dig
to find out what the instructions were from the Trump White House to the FBI
for this investigation. And what the FBI had to say about it, their memos
and their documents, their notes there, and we want to see what those are,
because it bears on what future nominees can be trusted
about when the FBI does another investigation. Maybe they'll have a procedure in place next time. The procedure. I did want to ask you, you
so you represent Rhode Island and we do have an election
coming up tomorrow. And there is something interesting
happening in Rhode Island with your District
two congressional race. I'm not sure how much
you want to weigh in on that, but I wanted to give the opportunity
to talk a little bit about it. You've got what do we got? We got Alan Fong, who is the former
mayor of Cranston, who's a Republican, potentially in a position
to to win against Seth magaziner,
the state treasurer who's a Democrat. And that would be the first time
a Democrat is represented. Rhode Island since a Republican. You read that, Lincoln Chafee? Yeah. Yeah, it's been it's been a while. And it's going to be,
you know, tomorrow will tell whether the voters in the second district appreciate what effect sending a Republican to Congress will have in Rhode Island,
what it means to send somebody down
who will back a Republican speaker. And the Republican agenda, particularly the Republican agenda,
as they've been talking about it recently. A lot of people know
the Republican candidate. He was the mayor of the city
in the district with the largest population
in the district for 12 years. He filled a lot of potholes. He plowed a lot of roads. He went to a lot of graduations, and
he ran twice unsuccessfully for governor. So he kept his hand in and,
you know, was out and about. But being mayor and being governor
is a very different thing from going down and adding a vote to a team
that is so anti-environmental. And we've got, you know, major coastal issues with sea
level rise, global warming and all. And that is so hostile
to Medicare and Social Security with a very you know, we've got a fairly
elderly population in Rhode Island. So it's I think people are going to figure out
that we're now voting for Congress and not for mayor. And the fact that I know
this guy is not a good enough reason to put those things at risk,
but I don't know. It's very close to polling as in many
races around the country is very close. What do you make of how the Democrats
have run their campaigns this time around? There's all kinds of sort of pre
election criticism of the party and and what it's just
what is focused on in there. In the run up to Election Day,
do you think that the party has made the case and done a good job or. Or do you think would you have run it
differently or focused on different issues? Well, I'll go back to what we said
earlier, Melissa, and that is that I think that the public
is really upset about improper influence all the way rising to corruption
in the U.S. government. They feel very strongly
a great many people, like most people, that they're not being listened to, that other people
are getting ahead of them in line and getting things that they want
and they're being ignored. And whether you're right leaning or left
leaning, it's a very common view and it's a very angering view in a
in a citizens democracy like ours. And we have a very ready explanation
for that which enjoys
the added benefit of being true. And I don't think we've done at all a good job
of putting that issue forward, of explaining to people that we are with you,
we're trying to clean this mess up. The reason that you're being not listened
to has a lot to do with the way the system runs and these big donors
getting a fast lane right by you to the decision makers. And nobody cares about you any longer because you can't write $1,000,000
check that we have to fix. And I think if we'd spent more time
focusing on that, we would be in a in a better position. I don't know if you remember
Jane Mayer's article in The New Yorker about this issue
where Mitch McConnell's minions and the Koch brothers political minions
were having a conversation and somehow she got a transcript
or a recording of the conversation. And there was one issue
that was like kryptonite for them. They couldn't clean it up. They couldn't bend it their way. It was just terrible for them. That was this issue. So we actually had the other side
at the command level saying. Oh my God,
this is a really bad issue for us. This kills us. Even our people hate this stuff.
Oh, my God. Tea Partiers and Bernie Bros. Agree. We we're in big trouble here. And what the Democrats do about that
warning from the other side, nothing. We didn't pick it up. And there was a moment in world War Two
when French pilots were flying over the Arden Forest
and they saw all the Nazi armor lined up along the roads waiting to go in. And they reported back to, you know, Paris, hey, the German or German armor is lined up for miles
on the other side of the Ardennes Forest. They may be trying
to, like, blitzkrieg through to us. And the French commander said, nah,
that can't be right. Those pilots couldn't be right. Imagine being one of those pilots
and looking down and seeing that and then being ignored. Sometimes I feel like I know it's we did not. Choose to be the French b
the French general. Is that right? Schumer's actually been really helpful. He's really he's gone out of his way
to give me opportunities to to make this pitch,
to pitch it in the caucus, to put credibility behind the argument
with the White House. But as a party, we just really,
I think, completely missed what was a very fat pitch
right across the plate. And, I mean, they just voted to defend
this horrible regime of dark money. Why would we not make
a bigger deal out of it? And then they got $1,000,000,000
in dark money in the Senate elections. Go figure. I mean, it's so it's so amazing to talk about elections with the B word. And in terms of, you know, I know the 2016
presidential election where you I think was we crossed the threshold
and now it's just sort of. Now it's yeah,
now it's in Senate elections, not one but the pack of them. But, you know,
there are a hundred of us, right? And only a third of us run any given year. And half of those races aren't contested. So it's a pretty small number of races
to spend $1,000,000,000 in of anonymous money. I mean, anonymous to us. Do you think Mitch
McConnell doesn't know who's behind it? Of course he does.
You don't think the candidates know? Of course they do. It's just the public that fooled. Wow. We do have another audience question here. Somebody says, since joining the Senate
in 2007, what has changed the most? Is There anything you wish you knew or understood better as a new senator back
then? Well, that's a really good question. First, I will have to say,
I hate that we lost John McCain. We were of opposite parties and we quarreled on various issues
from time to time pretty vigorously. But I admired him immensely,
and I was a pallbearer at his funeral. And voices like his are precious. And we have very few. I think Liz Cheney is trying to honor
that legacy on the House side. But this business of people
being willing to line up like automatons to do what the dark money tells them to do is not at all what I expected
when I got there. The best example is the Republicans
all inventing that there was a magic, invisible rule
that they couldn't confirm a Supreme Court justice
the year before a presidential election. And that was their excuse for stopping Judge Garland from being President
Obama's appointee on the Supreme Court. And, of course, that rule was ridiculous
and nobody actually took it seriously. But they all saluted
and went lined up toes to the line and did their duty
and pretended that that was a thing. And then just like a year later, a little over a year later, Ruth Bader
Ginsburg dies and they have to do a complete 180
on that principle of no Supreme Court confirmations within a year. And without hesitation they all spun
and they went and they did their complete 180 just abandoning any shred of principle
they might have had. But, you know, I use that again
as an example in the book of the gale force political pressure behind
capturing the Supreme Court. But it's also an unfortunate change
in the Senate. And I think if there had been more people
like John McCain who had a big independent streak
and were really country first, somebody might have said,
hey, wait a minute. You know, we just told everybody
that there is a one year rule. We can't go breaking it
the very next time. Have a little process integrity here. So I missed that a lot. And I think John was one of its exemplars again, the other side
and we fought pretty heartily from time to time, but I loved him
dearly and I admired his courage. And I think he would be much, much more active right now. But I miss his voice because I think
it would be an important one. What are they afraid of? Are people
are they so afraid of the private sector? Oh, you know, to me, that
that that they're willing to to bend, as you as you put it, is that
is that the fear? I think it's the dark money pressure. I think that. The pressure to do what I mean, pressure
they always tried. To do is basically do what you're told. You know, when I when I first got there. We will hurt your kneecaps. Like,
what is the threat? Yeah, exactly that. When I first got there,
you raised your own money, basically. I mean, there's
a Republican Senate campaign committee and the Democratic Senate
Campaign Committee, and they could spend and PACs could get corporate
tax, could give you $5,000. Oh, my. And then you just made a million
phone calls to raise your money. Now, you don't need to raise money
for yourself if your leader can make a call to a big special interest
and have them write a $10 million check to a superPAC
that will come in and obliterate your opponent
with TV spending and prop you up. And from time to time,
they turn on one of their own. There was a congressman named Bob Inglis,
who they crushed in a primary because he refused to go
down the climate denial road. So they just crushed him and made an example of him other. And everybody looked at that and said, Oh, wow, look
what happens when you cross these guys. And the motivation for that
just changes when you move from a world in which the biggest thing
a corporation can do to hurt you is to give a $5,000 contribution
to your opponent and have the CEO host a fundraiser
and raise 200 grand at his fancy home
if that's the best they can do. Okay. You know, bring it on. But if they can write $20 million checks
and hide who they are and have it come down crashing on your opponent
through or on you if you don't behave through,
you know, voters for peace and puppies and prosperity,
it's a whole different world. Yeah. I'm just it's just baffling to me
that that people would sell out just to stay in office instead of, you know, going back. Going back to the farm. Going back to the farm where you'll notice
that actually a lot of them are retiring, but they don't want to go on this merry
go round any longer. And the ones who are retiring
are actually some of the some of the best of the bunch. That's true. We are seeing a lot of a lot of retirements, a lot of people
not running again in the neck. You're going to be running again. Yes, you'll you'll be. That's the plan. Okay. I can an announcement. When I make my announcement, I want to
have it be a proper announcement. But of course, of course, just confirming. I have a question. Your boss announces to run for reelection
in front of California Commonwealth Club. Know what it says here? Do you have a favorite Supreme Court
justice, let's say, past or present? Well, just let's just open it
up. You could it could be John Marshall. It can be, you know, any
any and or anyone else. Well, I'm a big fan of Sotomayor on the court. She seems more than any of the others to appreciate the political situation around the court and that maybe this is not completely on the up and up. I think when you get on the court,
there is a very strong pull that you need to buy
into the Supreme Court consensus narrative that you never ascribe
ill motive to anybody else. Everybody's got to be friendly
and a big happy family and there's nothing going
on here. It's all legit. And I think the facts now completely disprove
that it's all legit. You just can't run up the kind of numbers
this court runs up. You can't run over very basic propositions of appellate practice
the way this court has done. You can't do the sort of mischievous
behavior that the court has engaged in, or at least the majority, and particularly
when all of that is happening. To ignore that I think is a
is a big mistake, hard for the judges
to come to that realization. But I think Sotomayor with the seems to be the first to be realizing that
now Justice Kagan is picking up her game and getting, you know, she pulled up her socks and is getting into the fight
a little bit harder. But I do think it's important
they let him get away with a lot. I mean, there should have been a dissent in the case in which John McCain
and I wrote the briefs in which some of the other judges noted, hey, wait a minute, guys, you said that
this was going to be transparent. You said that
this was going to be independent. We now know that isn't true. You can't clean that up. You know that those were false premises. You can't just let a decision stand
that we can see in plain day stands on false premises. Let's let's talk about that. Let's make a fuss about that.
Let's make our point on that. And they didn't
they just let that let that moment pass. Is there is there any effort from from groups
on the left to try to to bring a case
where they could actually fill out a sort of have a trial
and fill out a factual record regarding influence, the influence of dark money on politics? Or is that. There been a few? Chris Van Hollen brought one in the horse
in the house. Sorry, in the house. In the house
quite a while ago. And Ted Lieu brought one more recently
and I wrote out another amicus brief in the Ted Lieu case, making the same point that I'd made
with John McCain years earlier. And again, the Supreme Court refused
to take the case up and ignored it. And in fact, worse, once they had Justice Barrett
on the court, they decided a case called Americans for Prosperity Foundation,
which for those of you who follow politics, you will know, sounds a lot
like Americans for Prosperity, which is the Koch brothers
main political battleship. Well, Americans for Prosperity
Foundation is the 5013 sidekick to Americans for Prosperity. So it's a heavily political operation. And they brought a case
before the Supreme Court saying, hey, we have a constitutional right
to keep our donors secret. And guess what? While the court busy
taking away a constitutional right from half the American population,
the female half, they created a new constitutional right for the so-called corporate
population of the U.S. and created a brand new
right to dark money. So, yeah, there's a lot of thought
about sending a case up there. But the problem is,
when those cases go up there, the court goes out of its way
to defend the dark money regime, which not coincidentally,
is the same regime that got them on the court in the first place. Well, we have time for one more question
and try to end this on a happier note. So for our final question,
I wanted to ask you one from the audience, and it says, What gives you the most hope
for our country moving forward? Well, you know,
we've been through bad times before. Frankly, if Joe McCarthy wasn't a drunk,
he probably would have been president. I mean, he really kicked up
some really dangerous stuff. You had the era of the Palmer raids when the attorney general was raiding
folks and people were being thrown in jail
for their political beliefs. Union leaders were being rounded up
and locked up. Immigrants were being deported wholesale. So and my God, of course,
we had the Civil War, which was about as brutal
a conflict as we can have. So we have had these terrible moments, and we always do seem to spring back because I think ultimately
in the American character, there is a yearning for America
to be a leading country, to be the city on the hill,
to be the beacon to the rest of the world. We want to be special
and you can suppress all that. You can pour dark money on it. You can wrap it up in political corruption and prevent people
from getting their wishes met by Congress. And you can do that for a decade,
for two decades. But at some point, that resilient, honorable force of the American people
just will assert itself. And the sooner that happens, the better. But someday it'll happen. Excellent. Senator Sheldon Whitehouse, thank you
so much for joining us here today. The senator is the author of The Scheme How the Right Wing Used Dark Money
to Capture the Supreme Court. And if you want to watch more programs
or support the Commonwealth Club's efforts in virtual or in-person programing,
please visit us at Commonwealth Club dot org slash events. I'm Melissa Caine.
Thank you for joining us. See you next time. We're clear and the outro is rolling. That was wonderful. You good? Yeah, that was great.
