'This Is A Captured Institution' - An Interview with Senator Sheldon Whitehouse

Senator Sheldon Whitehouse (D-RI) joins us to talk dark money, judicial nominations, and whether the Democrats have any hope of getting things done without filibuster reform.

A podcast where we dissect and analyze the Supreme Court cases that have destroyed American democracy, like the filibuster has destroyed the Senate

0:00:00.0 Peter: Alright, I haven't thought about how to intro you, Senator, but...

0:00:03.5 Whitehouse: I represent Rhode Island there. I did it myself.


0:00:09.7 Speaker 3: Hey everyone, this is Leon from Fiasco and Prologue projects. On this week's episode of Five to Four, Peter, Rhiannon and Michael are talking to Senator Sheldon Whitehouse. Whitehouse has spent 15 years in the Senate where he has been railing against the influence of dark money on the make-up and the decision making of the Supreme Court. The hosts talk to White House about what this dark money has bought Republicans already, and how Democrats could apply pressure to end its use, even if they currently don't have the votes for it. This is Five to Four, a podcast about how much the Supreme Court sucks.

0:00:45.5 Peter: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have destroyed American democracy, like the filibuster has destroyed the Senate. I am Peter.

0:00:56.7 Michael: That's right.

0:00:57.1 Peter: I am here with Rhiannon.

0:00:58.1 Rhiannon: Hey.

0:01:00.7 Peter: And Michael.

0:01:00.8 Michael: Hey, everybody.

0:01:01.4 Peter: Today, we are doing something a little bit special. We are interviewing a senator.

0:01:06.1 Rhiannon: A US Senator, a United States sitting senator.

0:01:10.5 Peter: We are talking to Senator Sheldon Whitehouse, a Democrat from Rhode Island who has been vocal about the need for a court reform and especially for transparency with respect to the dark money that swirls around Supreme Court nominations. We had a pretty good conversation, talked dark money, talked to the Supreme Court Commission, lower court expansion, messaging, abortion and voting rights, and why the democratic party just absolutely sucks at all of this. We thought that it would be good to talk to Senator Whitehouse, not just because he's a sitting senator, but because he has an interesting perspective on the court and court reform that targets big money interests that are sort of intertwined with the nominations and employment process and the Federalist Society and all that shit. So without further ado, let's get into it. Democratic Senator from Rhode Island, Sheldon Whitehouse, welcome to the show.

0:02:06.9 Whitehouse: Good to be with you, Peter, thanks for having me on.

0:02:09.1 Rhiannon: We're going to be talking specifics on court expansion, lower court reform, all of that stuff, but just for our listeners who aren't familiar with your work on the Judiciary Committee and elsewhere on these issues, why don't you just talk first about why the Supreme Court and these problems are such a priority issue for you, what brings you to this issue.

0:02:30.8 Whitehouse: They are a priority issue for me, because in my work on climate change over many years, I became more and more aware of the extent to which our failure on climate change was driven by a dark money apparatus that cranks out climate denial as a product to create doubt among the American people, and I put a lot of work into that, and then when I began to notice things seeming really smelly at the Supreme Court and decided to dig into that, my instinct of that climate denial experience was to look for dark money and front groups. And sure enough, that's exactly what I found. And not only did I find Dark Money and front groups, I found some of the same front groups that were involved in climate denial and in some of the same basically identity laundering operations that made the funding anonymous and in climate denial. So it's actually kind of a pretty big operation with a bunch of creepy billionaires behind it, and what the hell if you're gonna traffic and in climate denial, why would you not wanna capture a court? They've been stunningly effective at it. It's really humiliating to be a Democrat and realized how much we let them get away with without calling them out.

0:03:52.7 Rhiannon: Right, so just another sort of general question again, before we jump in on more specifics, especially with regards to the dark money issue, we learn in middle school in this country, we have three branches of government, we've got the Supreme Court, the president nominates justices to the Supreme Court, the Senate confirms or denies those nominations, but what in your view is the Senate's role? What's the Senate's power here in shaping or changing what's going on in the Supreme Court holding the Supreme Court accountable in this moment, what can the senate do?

0:04:25.2 Whitehouse: Well, our role in advice and consent isn't really germane right now, we don't have a Supreme Court vacancy, paging justice Breyer, and we don't have a Supreme Court nominee. So our role is the oversight role, which is a really important role for the Senate, some of the most important things the Senate has done in its history has been to examine, to oversee, to investigate and to disclose to the American public what we found. And that's the role I think that we should be bringing to bear on this Supreme Court problem.

0:05:02.2 Peter: Where do you stand on court expansion, 'cause there is a bill that would add four seats to the court, obviously not the most popular bill in Congress, but... Do you have a position on it?

0:05:13.8 Whitehouse: I do, which is that we really suck at product roll out, and as a lawyer, I sort of go by the maxim that let's say you wanna go into court and ask the judge for extraordinary relief for your client, you need to make your case first, and we've been slip-shot and sloppy about making the case about what's going wrong at the court.

0:05:38.0 Rhiannon: Who's we... You mean the Democratic Party?

0:05:41.3 Whitehouse: Democratic party. I think if we jump to the conclusion that those of us who are deeply embedded in this think should be the right thing to do without having made the case first, it'll be another product roll out disaster, and we got a job to do, and that's to let the public know what the hell is going on over there, and then we'll have a whole array of things that I think we'll have much more public support for doing. I do think that right now, there's an array of stuff we can do even with what the public already knows, even with the half-ass job we've already done around transparency, because that's such an obvious good that it's pretty easy to push transparency improvements through and some of those will make a big difference in the way the court operates.

0:06:28.6 Michael: I just wanna follow up on that a little bit. What do you think the party is doing right now to make that case? You say that they need to make the case they need to roll it out, but I don't see a lot.

0:06:39.0 Whitehouse: Not much, we pulled the transcripts of everything President Biden has said during his term of office since Inauguration Day. He has used the term dark money. Exactly, one time. So he's not exactly using the bully pulpit, the White House is not exactly using the bully pulpit to get the message out, and you saw the output of his Supreme Court Presidential Commission, which was a bunch of faculty lounge problem of no impact or import whatsoever. Couldn't even agree on most things and didn't address the most difficult questions, they acted as if the difficult questions didn't even exist, so if you take those two as measure points on how energized we've been about solving the Supreme Court problem, not much would be the measurement that came back.

0:07:32.1 Michael: I can't disagree with you there.


0:07:37.3 Whitehouse: Yeah, I'm not saying anything that's very debatable here, these are unfortunate, but indisputable facts.

0:07:43.2 Michael: So you mentioned dark money a couple of times, and I think our listeners are familiar with that idea at the very least, but I'm not sure they understand the role it plays in judicial nominations, that intersection and what transparency around this stuff might look like.

0:08:03.0 Whitehouse: Sure, so you have people like Brett Kavanaugh in his White House staffer days, and Leonard Leo in his Federalist Society days, and Don McGahn and in his Trump Council days, all working together to pick judges and Leonard Leo's job was to coordinate between the judge pickers and the big Republican donors to make sure that they had a good list, and that really went toxic under Trump, when to buy peace with the Coke Brothers, he offered up that all of his Supreme Court appointments would come off a list approved by the Federalist Society.

0:08:40.2 Whitehouse: So for the first time, we actually formally brought a private organization in to make decisions about who got on the supreme court, and we did so at a time when the Federalist Society was getting enormous contributions from anonymous donors that they hadn't been getting before it was new this kind of exploded. So you had this big dark money push into the organization that controlled the turnstile as to who got on the court or didn't, and then once somebody got through that dark money funded turnstile and got nominated right down the hall from the Federalist Society, same building, is the judicial crisis network. So you walk down the hall, and knock on their door, and they're getting $17 million donations, like single $17 million donations, not $17 million donations. Somebody wrote a check for $17 million.

0:09:36.5 Whitehouse: And you don't know who they are, and they might have written a bunch of different checks 'cause there were several big donations that came in, and that group was doing all the phony baloney ads against Garland for Gorsuch, for Kavanaugh, for Barrett, so more dark money going in. And then once you get these people on the court, they're this whole armada of front groups that come into the court as what are called amici curiae, which is Latin for friends of the court, which are groups that come in and file briefs. And in this case, they are briefs that tell the Supreme Court what to do, and in their number and in their organization, they tell the Supreme Court, Hey, we're serious, and the numbers can get pretty big, usually they have little flotillas that they send in of a dozen of these groups or so, but when it came time to the dark money case, the Americans for Prosperity Foundation case, there were 60 dark money groups that came in at the sat stage... Yeah, I mean, it's like they set off every alarm in the harbor saying, "Pay attention, this is a big one for us, you guys do this in remembrance of us."

0:10:43.7 Peter: Let me know if this understanding is correct, but it seems to me like you have this, some level of transparency when it comes to political campaign contributions, maybe not an ideal level of transparency, but then you have this sort of separate, much less transparent apparatus surrounding the judicial process, in part because it's not traditionally viewed as political, and your aim is to introduce measures to shine a little bit of light there.

0:11:07.6 Whitehouse: Correct. Although I would say that while there is transparency around individual campaign contributions, the five Republicans on the Supreme Court opened up unlimited money in Citizens United, and there's no requirement that any of that be disclosed. The common way to do this is to set up a Super PAC, which can spend unlimited amounts of money in an election, and then somebody gives unlimited amounts of money to that super PAC to spend, but they run it through a front group, so nobody knows who the real donor is because the Super PAC report, we got this from donors trust. Or oh, we got this from this 501C4, and so the public never knows who's behind this, it's just a shell game of phony front groups with preposterously harmless-sounding names. Donors trust.

0:12:08.0 Peter: Americans for Prosperity.

0:12:09.8 Whitehouse: Americans for Prosperity, Heritage Association, Heartland Institute. They are all so completely trickily, sweet, and yet behind them is mischief galore.

0:12:20.0 Michael: But they can't coordinate with the campaign, so it must all be above board.

0:12:25.6 Whitehouse: Oh no, they could never coordinate with the campaigns, they just hire people from the last campaign, hire the person's chief of staff, hire the person's family, run ads that the campaign posted on its website, but... No, no, no, no. No coordination.

0:12:38.8 Rhiannon: No, coordination and it's not political.

0:12:40.1 Whitehouse: No, no, no. And one of the things that is irritating about the Supreme Court is that they've seen all this, They've seen how non-independent the supposed independents was, and even if they were too stupid to figure that out, which I actually don't believe... You don't have to be intelligent at all, you just have to be sentient, to know that this money is not transparent, we're through billions of dollars in dark money, it's been front page news, and we've briefed the court about it, so there's no way that this court does not know that they were wrong about the transparency of all this money, and yet despite that being a condition of Citizens United, they've never gone back, and they keep turning away cases that would let them go back to undo all this dark money operation. So the Republican majority owns the dark money operation just as much as they own the unlimited money.

0:13:35.8 Rhiannon: That's exactly right. We did a whole episode about the Americans for Prosperity case, and we spent some time talking about how there's obvious corruption in the Supreme Court taking the case to begin with, out of just maybe several dozen cases, the Supreme Court decides every single term that this was one of them, right? That this was an important issue.

0:13:56.4 Whitehouse: Well they had those 60 dark money Amy key all showing up saying, "Take this case, folks, this is important to us." and so they did, even though there's no real difference between Americans for progress, the Coke Brothers political front group.

0:14:09.3 Rhiannon: Right, Americans for Prosperity, that's...

0:14:11.8 Whitehouse: Yes Americans for Prosperity, I am Sorry. Foundation, same board members, same address, same donors, if you wouldn't were in piercing the corporate veil mode in a court room, there'd be practically nothing even to pierce here, and the idea that justice Barrett couldn't notice that the group that spent millions and millions and millions getting her confirmed was the corporate twin of the petitioner in that particular case, and recuse herself shows how strong that kind of tribal clan signal was that we've all gotta stick together on this one.

0:14:43.6 Rhiannon: Turning to some specifics, you've mentioned the dark money at play in justice Kavanaugh's nomination and confirmation process, we know that $1.4 million was spent on just a one week advertising campaign for Justice Kavanaugh during that confirmation process. What about justice Amy Coney Barrett? What do we know about dark money doings during that nomination and confirmation circus?

0:15:09.0 Whitehouse: If my memory serves, I don't have the papers in front of me, in each confirmation, the judicial crisis network got a check for either $15 or $17 million. Each time.

0:15:22.6 Rhiannon: Oh each time, yes.

0:15:23.0 Whitehouse: Each time. So they had that kind of money to spend. And then sidebar, you've got the NRA with whatever money it got from whomever, running its own sidebar campaigns, and as we know from the Washington Post expose, there's a whole little flotilla of phony front groups that they raise money through and spend money through, and they would go out on social media to orchestrate support for the judges and that's not counted either, so it's hard to tell, but it's a very big number, probably in each case, in the $20 million range or above.

0:16:01.3 Rhiannon: That's so crazy.

0:16:01.3 Whitehouse: But I'm sure the people who spent $60 million on all of this just want a good government.

0:16:05.8 Rhiannon: That's right. Yeah.


0:16:09.1 Peter: Of course, it's in the name. So not to hand wave away the legislative options for reform here, but our majority in the Senate is slim to say the least, been struggles to get some pretty inoffensive legislation passed. So I think it's safe to say that aggressive court reform is off the table, at least in the short term.

0:16:28.4 Whitehouse: Which is fine, because we need that time to build the record so that when we can move forward, we have the American people with us and they understand what's been done to them and to their court.

0:16:40.3 Peter: What are you talking about from a material perspective, when you say building the record?

0:16:44.5 Whitehouse: Well, when the Supreme Court started looking really smelly, and as I said, my instinct was then to look for dark money and front groups, I also wanted to take a look and see whether my instinct was right. So we drilled into the Supreme Court's record since Roberts became Chief, the smelliness seemed to be in five to four partisan decisions, so we drilled down to five to four partisan decisions, there were 78 of them at the time, 72 of them had an unbelievably obvious Republican donor interest implicated by the case and of those 72, the Republican donor interest won every single one, 72 to nothing.

0:17:25.3 Whitehouse: And if you roll that out past the time I wrote the article at Chronicle and all that, that number climbed up to 80 to nothing, so I don't think the American people understand that in 80 different cases, which is an entire terms worth of decisions, it's a lot of cases, the Supreme Court broke five to four, the five who broke were all the Republican recent appointees, and in these decisions in which there was a big Republican donor interest, it was an absolute rout in which they won every single time.

0:18:01.6 Peter: I mean, okay, so we are with you on the merits, but is what you're proposing a messaging and where does that messaging come from?

0:18:08.4 Whitehouse: Well, it'd be great if it came from the bully pulpit of the White House, but that hasn't happened yet. We've tried to do a bunch in the senate, we've done, I think eight captured courts reports now, and the house is starting to pick up the scent and start to move forward also. Hank Johnson, the court's chairman in the House, has been really good. And so I think we use our megaphones as Senators and as members of Congress, and we hope that we can also have the various groups pick this up, if you're an environmentalist and you're a member of an environmental group, if that environmental group doesn't tell you about what's going wrong at the Supreme Court and why we have no clean power plan you have been deprived of a pretty important piece of information.

0:18:56.9 Whitehouse: If you're a civil rights activist, and you're a member of a civil rights group, it really matters to you how the Supreme Court took a dive in Shelby County and wiped out pre-clearance provisions and led in surgically precise anti-minority voting state laws. You can go through interest after interest after interest, that supports the Democratic Party, and it's losing at the court and it's losing to this today. So, that's a whole other set of megaphones that could be brought to bear.

0:19:27.3 Peter: It seems like there's sort of a hesitance, which I imagine comes from some long-standing norms to really target the core in political messaging. You've mentioned Stephen Breyer retiring, but it hasn't been that popular of a refrain. Something that makes natural sense to me is pushing for Neil Gorsuch's resignation, which not with the hope that he actually resigns, but with the hope that you can highlight Republicans most brazen exercise of political power involving the court, and sort of center their conduct in the Merrick Garland debacle. That's the sort of messaging that would help materially link the actions of the court to the actions of their the Republican party. But we haven't seen it come out of democrats, with some notable exceptions, but from the party at large, it doesn't really seem like the establishment is there yet.

0:20:12.8 Whitehouse: Correct, it's coming more and more. Chuck Schumer signed all of the captured courts reports. So, they came out through the Democratic Policy and Communications Committee, they come out not just as Sheldon Whitehouse work, but as his official work of the caucus. So, that's coming along. I distinctly remember when I first raised this in the caucus years ago, when it first started to seem really smelly, being more or less Houston booed back down into my seat for having had the temerity to suggest that we might wanna take on the court as an institution. Because it had simply gotten so smelly that the emperor has no clothes, and it is the time, somebody said so.

0:20:54.8 Rhiannon: Yes.

0:20:56.4 Whitehouse: And then I kept at it and I wrote the report to help convince colleagues among other things, and the next time I stood up in the caucus to say, "I know you didn't like hearing this from me last time, but the evidence just keeps mounting and at some point, we've gotta realize that this is a captured institution, and we've got to address that." And at that point, Chairman Leahy, who is probably the most respected member of the Senate by all of us for his seniority, and his wisdom and his long service in our causes said, "You know, I think Sheldon's actually right here." And that was a turning point moment. And then we've done all this other work since. But it wasn't that long ago when this was an unacceptable thing to say, even in the Democratic caucus in the United States Senate. So, we kinda have to learn to get our feet wet in this new area of how you call out an institution that's been captured and try to protect it and rebuild it when it seems that its Republican majority is out to destroy the institution in the service of its donors.

0:22:02.5 Michael: I agree with you there, but I have to press you a little bit about this because, I was pretty... I would say excited when you threw your hat in the ring for chair of the judiciary. Because, you're a front line reformer who seems to be taking this issue more seriously than anybody else, and the majority whip Senator Dick Durbin came in and sort of swiped that spot...

0:22:27.0 Whitehouse: And the challenge between the junior Senator from the small estate and the majority whip...

0:22:33.1 Michael: Not really a fair fight there.

0:22:34.5 Whitehouse: Well, let's just say I did not prevail.

0:22:37.7 Michael: But, it's hard to read that as anything other than the party leadership being maybe hostile to your approach, the reforms you're pushing and what you would wanna do as chair of judiciary.

0:22:49.6 Whitehouse: Yeah, I think hostile might be too strong.

0:22:52.9 Michael: Maybe not there yet, they're not there.

0:22:55.4 Whitehouse: Yeah, not there yet, for a lot of folks. And I'll confess, there's a certain amount of, "Alright, Whitehouse has put a lot of work into this. Let's support him." But not, "Okay, this is a priority for us. It matters to every single one of us, this is front and center, and we're gonna dedicate our time and effort to this irrespective of whether Whitehouse is there."

0:23:14.9 Michael: Understood.

0:23:15.0 Whitehouse: We're somewhere between those two places, of humoring me and acknowledging that I'm actually right, and treating it as a true caucus priority.

0:23:25.3 Michael: Our sense on the podcast is that without a change to the ideological make-up of the court right now, it might be another decade before there's a chance to change it, and that decade could be very rough.

0:23:40.3 Whitehouse: Yeah.

0:23:41.8 Michael: Do you think the majority of the caucus understands that?

0:23:44.9 Whitehouse: Hard to speak about colleagues, but we certainly haven't operationalized it, let's put it that way.

0:23:50.3 Rhiannon: What do you mean by that?

0:23:51.4 Whitehouse: Well, let's say that we saw that as a critical problem, and frankly even a danger to democracy. The next question would be, "Okay, so what have you done about that?" And that's where I think it's really hard for anybody to defend what we've been up to, we've written these reports, we've had a couple of hearings in my sub-committee, the President doesn't talk about it. His commission was, like I said, problem, it hasn't been a core front topic in the house, and most of our groups don't put it into their conversation with their members, even though it dramatically affects the things that they care about, so that's what I mean by not operationalizing it.

0:24:32.0 Peter: Yeah, what about stepping outside of the Supreme Court into areas that might be a little more friendly to the caucus... Lower court expansion there you were talking about something that's a little less politically charged, feels a real administrative need and easing up the federal court docket, and you're not likely to see the same resistance within the party, but we haven't heard any talk about it before... Last year, we talked to Congressman Ro Khanna, who said, Of course, we're gonna look to expand the lower courts, but maybe I'm missing some headlines, but I haven't heard anything, and I'm wondering if you have or whether this is in the works?

0:25:04.0 Whitehouse: There was a brief window when it looked like we might do something because nobody knew who the next president would be, so it's kind of a toss-up as to who would get to fill the seats, and there were pretty robust bi-partisan conversations for a while during that period, and then it became more obvious that Donald Trump was gonna be a great, big loser, and that Joe Biden would win, and the desire to proceed began to evaporate, I think the status right now is that there's agreement that we need to add, I forget what the number is of judges, but X number of judges, where the disagreement is is when they get to be appointed, and the current bid from the Republicans on this is not while Joe Biden is president, none until after the next election beyond that, which because we're dealing with judicial emergencies now is kind of a hard thing to have to swallow. So that's been the jam-up.

0:26:03.9 Peter: Do you need Republicans for this?

0:26:06.6 Whitehouse: Yeah, or we need a way around the 60 vote cloture requirement.

0:26:11.4 Peter: Well, there is a way.


0:26:12.8 Whitehouse: Yeah, but that takes 50 votes and we don't have 50 votes for it yet, so the way to the way is not open right now...

0:26:21.4 Peter: Sure.

0:26:21.5 Whitehouse: Or at least not yet.

0:26:23.6 Peter: I mean, with that in mind, you can pretty readily say that there's no viable legislation in the works at all.

0:26:29.1 Whitehouse: No.

0:26:30.2 Peter: Is there a 60 votes for anything of material substance? No.

0:26:33.3 Whitehouse: No. I think at this point, what you need is some kind of an understanding reached between Mitch McConnell and President Biden about what would go down if these seats were opened and then... Mitch would give a thumbs up if he was happy, and Biden would give a thumbs up if he was happy, and we'd have something to work with in a bipartisan fashion, but that conversation has not happened, and I'm not sure the relationship of trust is there to support that conversation.

0:27:00.4 Peter: You should trade Neil Gorsuch steps down. And we do 2025.


0:27:04.0 Whitehouse: Yeah. I'll go for that. The other thing that's interesting about this is that when you talk about the dark money behind the Federalist Society turnstile and the judicial crisis network ad campaigns, and the amicus curiae flotillas that appear in the court, there's no reason to think that that's not all the same money from a very, very few very powerful sources, and there's also no reason not to think that that's the same money behind the big anonymous spending that keeps Mitch McConnell afloat, right?

0:27:36.9 Rhiannon: Right. You've mentioned armada, you've mentioned these amicus flotillas, it comes across that this is sort of a military operation in that they are organized on this... When I say they, I mean the party, the Republican party is organized on this. And it's very hard as somebody who not only practices law, but as part of this podcast, watches the Supreme Court, it's very, very hard to understand, to the point of really feeling betrayed sometimes it's very hard to understand why the Democratic party doesn't understand the need to organize and as you say, operationalize on this issue in the same way the Republicans have.

0:28:20.6 Whitehouse: I couldn't agree with you more. The one thing I would wanna check back on is that I don't think we have to do it like them, we don't have to build an apparatus of lies and dark money in order to counter their apparatus of lies and dark money. What we have to do is shine some daylight into their apparatus of lies and dark money, and so it's not tit for tat, they build this essentially covert operation to run against their own country and try to get power that way. And then we do the same thing, no, we can be the good guys. We can be the bearers of truth and light and justice in the American way, but you're absolutely right, Rhiannon, we do have to be organized about it, we have to be just as organized as they are, but we have to be different in what we want to accomplish, we have to wanna do the decent thing. And not the surreptitious covert crooked thing.

0:29:17.8 Peter: I'm wondering whether the recent abortion jurisprudence has changed the sentiment among your colleagues in your view.

0:29:24.3 Whitehouse: Yeah, I think the temperature definitely changed with the Texas Dark money decision that let that law go into effect, I think what happened was that that really lit up the problem of the Supreme Court in the public domain, and that filtered back instantly to members of the Senate, Senator Durbin had a very good hearing on it, the Republicans were actually pretty on their heels through most of it, except for the really hyper out there ones and... Yeah, I think everything shows that this has been a pretty significant wind shift in this environment, just look at what the Supreme Court felt it had to do, they've all been running around saying, "Nothing to see here, folks. We're just a bunch of [0:30:05.2] ____ judges."


0:30:07.5 Rhiannon: Yeah, that's right.

0:30:08.5 Michael: Saying that at private gatherings with Mitch McConnell.


0:30:13.4 Whitehouse: Not too subtle to have that be the moment that you choose to say that it's like a self-defeating location for the message.

0:30:21.6 Michael: So one thing regarding the Republican and the conservative organization around the courts is they have a very clear agenda, abortion rights, LGBTQ issues in general, also the administrative state, and in pairing that back.

0:30:37.9 Whitehouse: Don't forget the jury, they'd love to make sure no corporation ever had to answer to a jury again.

0:30:43.3 Rhiannon: That's right, yeah. To say nothing about elections. Voting rights.

0:30:47.3 Whitehouse: And then there's the whole political side of making sure... Helping Republicans win in elections.

0:30:52.1 Rhiannon: That's right.

0:30:54.7 Michael: So on our side, on the other hand, to the extent I see an agenda at all, it's usually about the type of people who should be judges it should be more women, more people of color, and recently people with backgrounds in civil rights or as public defenders and things like that, but I don't see that sort of ambitious agenda about what Democrats would want to see judges do with power, should we have an agenda like that, and if so, what should it look like?

0:31:28.9 Whitehouse: Well, I would say it's a sign of the difference between us that Democrats still treat courts like courts and simply want them to be representative and fair, and we don't take the next step and say, Here's how we want you to rule, here are our substantive priorities that we think you should follow to a certain extent, those have emerged on the Democratic side as a reaction to really horrible decisions that the Supreme Court made, the most obvious horrible decision being Citizens United, and the consequent failure to enforce the transparency provisions of it, and this whole creation of the dark money monster and the tsunami of slime that it has let loose.

0:32:15.8 Whitehouse: So I think it would be safe to say that most Democrats would want the Supreme Court to value transparency and democracy and not special interest shenanigans, but that's really a response to a particular aberration. I think that... I don't know how I'd feel about that. I kinda feel rather good that we don't have that agenda, we wanna do our stuff the way it's supposed to be done through voting and winning and passing laws and doing stuff in the plain light of day, not having a bunch of people in robes, who we snuck onto the court, do the dirty work for us 'cause we can't get it passed in the Congress.

0:32:54.7 Peter: But protecting those rights is about advancing what is functionally in an ideological position that voting rights should be protected by the Constitution, that the first amendment can be weaponized.

0:33:06.5 Whitehouse: I guess I'd like to think that... Those were non-controversial. Right, I'd like to think that everybody would agree, this is baseline, not me versus you, you versus me, but I guess in the rush to grab power for an increasingly shrinking minority, those are now contested propositions that everybody should vote.

0:33:25.3 Peter: Right. On that note, and I don't wanna keep teeing up a variation of the same question, but I think it's important to talk about voting rights, the Republican party's Big Picture electoral strategy relies heavily on gerrymandering vote suppression of various types, and they have this court support on that, and I haven't seen a clear message from the Democratic Party as to how they plan to fight that other than get out the vote efforts, and assuming the court remains firmly in conservative control in the medium term, does the party have a plan to deal with the entrenchment of these anti-democratic institutions through the next 10 to 15 years, is there something beyond get out the vote?

0:34:06.7 Whitehouse: Well, yeah, HR1 and S1, and the John Lewis Voting Rights Act. We're trying to do it by passing laws that fix that, which is the way the Founding Fathers intended that people would do these things. Unfortunately, the other side has captured a court to do things the way they're not supposed to be done.

0:34:29.1 Michael: It's safe to say everybody on this podcast would love to see HR1 and S1 and the John Lewis voting Rights Act made into law. None of that seems like that's happening anytime soon though, for precisely what we've discussed before, the culture requirements and a certain number of Senators simply not being there yet on filibuster reform. So realistically, is this something that could happen before the mid-terms, because historically, the President's party loses ground in the mid-term, so...

0:34:57.7 Whitehouse: I think the Republicans are looking at the exact same set of facts that we are with regard to the mid-terms, and I think that is creating the exact same determination to prevent this from happening that we feel failed to try to make it happen. So I think there are only two ways to do this, one is to have some hearts and minds change in our caucus about finding a way around the 60-vote cloture requirement, you don't have to get rid of the filibuster entirely and for everything.

0:35:30.3 Whitehouse: But there are ways that I think you could make this come to pass that would be quite consistent with Senate practices of the past, and the second is get on the floor and just pound them on this. When our predecessors did the Civil Rights Act in 1964, that Bill sat on the Senate floor for three months as pressure built and walls got knocked down and agreements made, and the Senate at the time worked its way through to success. At the heart of S1 is the disclosure bill, and the Republicans know that everybody is mad about dark money. You remember Jane Mayor did that article where she found the transcript or the tape of Mitch McConnell minions talking to the Coke Brothers minions, and they were saying, there's this thing we can't touch, we can't dirty it up. It's kryptonite for us. And by the way, our own people are just as angry about it as Bernie Bros, and that was this issue that was dark money transparency and corruption in politics, and the Republicans are busy accusing us of being the dark money party, that's how powerful they know this weapon is so if we spend three months running up to the election, painting them as the party defending dark money and making them vote over and over again to defend dark money, and talking about dark money from the White House, and talking about dark money from the speaker and the majority leader's offices.

0:36:58.2 Whitehouse: Then I think they get put into a real pickle because people hate this stuff, I mean, they hate it a lot, it's one of the most powerful signals you get out of polling these days is how much people hate dark money corrupting our politics, and it's right across the board and in one pole 100% of independents had this as one of their top three issues of concern, and 82%, I think was the number had it as their very top concern. So if Republicans are looking at independent voters identifying them as the party defending dark money, and we're ramming that at them week after week, month after month on the Senate floor, there's just old-fashioned crowd pressure, you don't necessarily have to use culture, you just put them on the spot, and leave them on the spot until they crack. And by the way, it might help us win that election because of the framing of where the two parties are on this.

0:37:52.0 Peter: Right, there's a degree though to which for Republicans and for Democrats, this is existential. The proliferation of voting rights is very hard to get Republican the votes on, because if voting rights are expanded enough, their party will fade into a position of weakness for a generation. Is this something you can realistically win hearts and minds on even if it would benefit them in the short term to sort of jump on it? In the longer term, it's gotta hurt them, right?

0:38:18.0 Whitehouse: Well, the short-term is right in front of you, and Mitch McConnell would like to be majority leader in the short-term. So yeah, there are those long-term concerns, and yeah, they would fight over those. But I think if they were boxed in to vote week after week after week to defend dark money, to defend partisan bulk gerrymandering, and to defend the really hated practices that this bill would remedy, then at some point they kinda sue for peace. And it's when they're suing for peace and when you've got them where you want them, that you then start negotiating about how much of the election stuff they will accept. There's no reason to say, "We've really got you completely clobbered on the dark money and the bulk gerrymandering, so that's all we're gonna ask in order to let you out of this corner that we've got you in." We just say, "Okay, we're gonna keep pounding until we have an agreement, and the agreement has to include some serious voting rights reform, so let's go back and vote some more about dark money, 'cause I can tell how much you like that."

0:39:19.0 Michael: This is something you've clearly thought about. Right now, obviously, the Senate is... And the House for that matter, are very preoccupied with the Build Back Better Act and the bipartisan infrastructure bill, those two bills.

0:39:31.0 Whitehouse: Yep, which we should be.

0:39:32.5 Michael: Right, but are there any other obstacles to this sort of messaging once those are passed? Is this what we should expect from the Democrats? Or is there something else on the horizon?

0:39:43.0 Whitehouse: The most precious thing in the Senate is floor time. You can't make more of it. Time ticks away and days go by, and you lose your ability to do other things. So committing as much floor time as this would take to this project as opposed to all the other things that members may wanna do, is gonna take some wrangling, and it is gonna take some consensus that this is worth putting that kind of an effort into. And there will be a lot of other things that I think people will have good reason to wanna do.

0:40:22.0 Peter: This is sort of an investment in floor time for the future, is it not?

0:40:26.8 Whitehouse: Yep. But if you're not going to produce 50 votes to get around the 60 vote cloture requirement for this, then your two choices are to give up or to go to the floor and really make an effort of it with what I think is the added benefit that, if you've really painted the Republican Party as the party of special interest dark money corruption for months and months and months, and that's been the number one topic just the way that Build Back Better is the number one topic now, 'cause that's what we're working on, it's not a bad place to be looking at November of next year.

0:41:03.9 Rhiannon: Senator turning, just quickly we've talked a little bit, you've mentioned President Biden's Commission on the Supreme Court.

0:41:10.5 Whitehouse: The faculty lounge, yes, how lovely it was.

0:41:13.2 Rhiannon: That's right. And just for our listeners benefit, the Commission has released some preliminary materials. But of course, from what we can gather, it's a joke, pretty wishy-washy. They offer no recommendation or even strong opinions on any Supreme Court Reforms. So do you see any value in the Presidential Commission? Has it all just been posturing and a waste of time? How could the commission have been effective in your mind?

0:41:38.9 Whitehouse: Well, I think it could have taken a good hard look at could some of this dark money stuff.

0:41:43.1 Rhiannon: Do you have any sense of why they didn't? Or if that was in front of them, or?

0:41:47.5 Whitehouse: No, they didn't even look at the questions. You have the President of United States say that "The Federalist Society is gonna pick his judges." You had his legal counsel admit that the Federalist Society was insourced to the White House for this purpose. Imagine a judicial delegation of American judges going to another country. And in that other country, the process of selecting Supreme Court judges had been dealt out to a private secretive group that got boat loads of money from special interests. We think that was ridiculous. We'd probably say, "You ought to think about doing something about that." This commission didn't even look at that as a question. The problem of these dark money hiding who their real donors are, who the real parties are, that's a serious enough question that it has the attention of the Judicial Conference, which set up a special committee to look at it, not even mentioned by the Biden Commission. So clearly, they took some of the harder questions and just pretended they weren't there.

0:42:48.1 Michael: And these are people who have tenure, which gives them some of the best job security in the country. Strikes me as rather cowardly. Just thought I would add that.

0:43:02.5 Peter: Come on, Senator, say you agree.


0:43:09.4 Rhiannon: Say they're cowardly, Senator. No.

0:43:11.9 Whitehouse: From that long tradition of law school professor courage.


0:43:17.5 Rhiannon: That's one way to put it, yeah.

0:43:20.4 Michael: One more thing. The Supreme Court recently granted cert on an issue related to the EPA and its ability to regulate emissions. And so I just wanted to hear your thoughts, how concerned we should be with that. This goes right back to when you said your interest in the court started with climate change. And so sort of taking this full circle, how worried should we be about the EPA's ability to operate?

0:43:43.4 Whitehouse: I think we should be scared as hell. The Massachusetts versus EPA decision that said carbon dioxide was a pollutant about which the EPA could regulate was five to four, as I recall. And with this new array of justices, they could undo the very fundamental decision that CO2 is a pollutant. It could easily say, "Oh, it's just plant food, and nothing going on out there," and off you go to the races. And the fact that the one time they stepped in was this peculiar shadow docket decision, Scalia's last one on the court, to knock down the Clean Power Plant before it even came to life, before it even became effective, that sends a terrible signal. And if you look at who is the dark money in all of this, it's hard to tell because it's secret.

0:44:36.9 Whitehouse: But all the signaling that you see is that the dark money is heavily, heavily, heavily the fossil fuel industry. All the places that overlaps with climate denial, dark money funding and Supreme Court capture dark money funding, the way that Mitch McConnell operates given the funding that he's gotten from the fossil fuel industry. All of it just points towards the dark money heart of the court capture operation being a fossil fuel heart. So if you look at what the court's willing to swallow in order to accommodate that donor base, like the AFPF decision, which I think is just kind of hard to accept. They actually said in the plain light of day, that there's no real difference between a billionaire trying to secretly meddle in American Democracy, and a bunch of NAACP members trying not to get lynched or have their houses and churches bombed in the Jim Crow South. I mean, come on. If you can't figure out that difference, who are you?

0:45:35.3 Michael: It is so offensive.

0:45:37.3 Whitehouse: The length that they're willing to go for the donors who put them on the court is always a bit stunning. And so when you see this, it's hard not to connect the dots and see what's coming. I have the same feeling about this that I have about the AFPF case, as I saw that climbing its way up to the courts, and saw the forces are raying around it, and saw the way they left it on the docket for months and months and months and months, and didn't actually take the case in until they had Amy Coney Barrett, a six vote in case Roberts got squarely. And then they actually did it on January 8. Maybe I'm reading a little too much into that, but if you wanted to kinda hide that, you'd do it on January 8th when the entire country is looking at what happened in the Capitol building two days before that. So I get these grim feelings about the travel of these cases in the end, and what you see is that my grimmest predictions are usually born out by the behavior of the Robert's majority.

0:46:40.9 Peter: If there's one thing we've learned as a podcast, you can't go wrong being too cynical about the courts. It's a winning formula for being right.

0:46:48.7 Whitehouse: Sad, but true. So thanks for having me on though, I really appreciate it. And thanks for keeping banging away at these problems. It is just wrong that our court should have put itself into this position, and is wrong that it should be so unwilling to undo the harm and fix the mess that it created, and return to what we all, I think, properly expect in a court.

0:47:14.0 Peter: Absolutely, and thanks for coming on. If you can just do us one favor, next time you're in a room with Joe Biden, tell him to listen to the Five To Four. [laughter] I think it would be beneficial. I know you have limited floor time, but it would be great for us.


0:47:30.2 Whitehouse: Definitely use my floor time with him on that.

0:47:32.5 Michael: Thank you, Senator.

0:47:33.8 Rhiannon: Give him hell, Senator.

0:47:34.7 Whitehouse: Take care.


0:47:39.9 Peter: Alright. Next week, we're gonna keep going up. Nancy Pelosi coming on the show.


0:47:48.9 Rhiannon: Imagine.

0:47:49.5 Peter: If I'm gonna get someone I wanna talk to less. [laughter] Next week, we figure we'd build a little bit on our conversation with the Senator and do Michigan V EPA, a case in 2015 where the court made it needlessly hard for the Environmental Protection Agency to enforce emission standards. Our first foray into the extremely bleak world of the court and environmental law. Follow us on Twitter @Fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod all spelled out. We'll see you next week.

0:48:32.3 Speaker 3: Five To Four is presented by Prologue Projects. This episode was produced by Rachel Board with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Everly. Our artwork is by Teddy Blanks @CHIPSNY, and our theme song is by Spatial Relations.

0:48:54.9 Peter: I was really excited when he promised to tell Joe Biden about the show. He said, "That's my number one priority."

0:49:01.3 Michael: I think it was his idea, wasn't it?

0:49:02.3 Peter: That's my recollection.