From SENATOR SHELDON WHITEHOUSE: DARK MONEY AND U.S. COURTS: THE PROBLEM AND SOLUTIONS

 Published in the Harvard Journal of Legislation.

- Click here for it.

From the Introduction: 

The Founding Fathers had many threats in mind when they crafted a constitution for our young and fragile nation. Locke, Montesquieu, and other Enlightenment thinkers offered helpful political theory, but theory went only so far. Our Founders knew that patriotism could be overborne by selfish impulses and personal passions; that foreign governments and rapacious elites could exploit weak institutions; and that sharp differences divided the thirteen colonies. They planned for a lot of threats and dangers—but they did not plan for the corrupting power of corporations.

Today, corporations wield commanding power in our democracy. They do so directly, and through a network of trade associations, think tanks, front groups, and political organizations. That power too often is directed by corporate forces to dodge accountability for harms to the public; to subvert the free market to their advantage; and to protect their own political power by undermining democratic institutions.

This Article explores the expansion of that corporate power in our government, and its extension into a branch of government customarily viewed as insulated from special interest influence: the federal judiciary. I begin with a brief historical overview of corporate influence in America and a discussion of how that influence grew after the Supreme Court’s decision in Citizens United v. FEC. 1 I then turn to the fifty-year-long project of the corporate right to reshape both federal law and the federal bench; to the scheme’s tools, particularly anonymous “dark money” and the network of front groups behind which these interests hide; and to the long-fought scheme’s ultimate successes, culminating in the massive power grabs achieved in the Trump administration. The Article concludes with recommendations for legislation that would increase transparency at the Court. We must address the crisis of legitimacy the courts now face before captured courts become a national scandal.

More from Senator Whitehouse: 

- With Supreme Court Mired in Dark Money, Time for Large Dose of Transparency