A Supreme Court Selected by Big Money Will Rule on Whether Big Money Is Corruptive

Charles Pierce / Esquire
A Supreme Court Selected by Big Money Will Rule on Whether Big Money Is Corruptive Supreme Court Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. (photo: Getty)

And of course, Tailgunner Ted Cruz has wormed his way to the center of the plot.

On Tuesday evening, when hardly anyone was watching, Senator Sheldon Whitehouse, Democrat of Rhode Island, took to the floor of the Senate to rail once again against the influence of dark money on the federal judiciary, and its influence specifically on the new, carefully engineered 6-3 conservative majority on the Supreme Court of the United States.

Now the court's 6-3 big-donor chosen supermajority is delivering massive wins for those donor interests. And the American people can smell what Justice Sotomayor aptly characterized as the stench of a captured court.

But Whitehouse’s way into his argument was a new one. In his remarks, he targeted the laughably toothless commission the administration put together, purportedly to study the problems with the federal judiciary. These problems, of course, have been caused in great measure by the deluge of dark money into the confirmation process, most of it coming from economic and ideological sources that have extensive business before the court. However, the late commission chose to deal out, in Whitehouse’s words, “faculty-lounge pablum.”

Yes, they gestured toward the need for a code of ethics for the justices which makes sense because Supreme Court justices have the lowest ethics standard of any top federal official, but pointing that out is a little bit like pointing out a flat tire on a totaled car. Consider the facts the commission ignored. A private, partisan, anonymously funded organization, the Federalist Society, handpicked the last three Supreme Court justices. President Trump and his White House counsel admitted they had outsourced, their word, the Federalist Society to the White House.

Senator Hatch, our former colleague, former chairman of the Judiciary, was asked if this role was outsourced to the Federalist Society and he said damned right. No other democracy in the world has had such a ridiculous system for selecting judges. That's bad. It gets worse. Anonymous donations helped right-wing front groups mount a $400-million push to capture and control the Court, with zero transparency into who gave the money. Or more importantly, what matters they had before the Court whose justices they were installing. That's disgraceful. And trust me, nobody spends $400 million without a motive.

Whitehouse’s case is so plain as to almost beggar argument. As he noted, the previous administration* was not shy about admitting flat-out the truth of what Whitehouse said. The most recent former president* didn’t know enough about the law and jurisprudence to throw to a cat, as the great Sean O’Faolain once put it in another context. He was more than happy to grin and slap his nominees on the back while Mitch McConnell blew up the Senate confirmation process to install the Federalist Society Triple-A ballclub where it could do the most good for conservative donors and the least good for the country. After all, the foul flood of money that has rotted the foundations of our institutions began while the former president* was still “firing” people on his TV show.

The Court handed down its decision in Citizens United v. FEC in 2010, in the dim times before this blog was even born. In fact, along with shredding voting rights, demolishing campaign finance laws has been one of Chief Justice John Roberts’ primary enthusiasms since he first made his bones in conservative legal circles. (Two sides of the same coin, if you think about it.) And, a week from now, Senator Whitehouse and the rest of us may get another object lesson in this phenomenon.

Next Wednesday, the Supreme Court will hear the case of FEC v. Ted Cruz For Senate. At issue is the procedure by which candidates can loan money to their campaigns, and then finagle the repayment process in such a way that a successful candidate makes a profit while his donors buy influence. Ian Millhiser at Vox explains how it works:

When a campaign receives a pre-election donation, that donation is typically subject to strict rules preventing it from being spent to enrich the candidate. After the election has occurred, however, donors who give money to help pay off a loan from the candidate effectively funnel that money straight to the candidate — who by that point could be a powerful elected official.

A lawmaker with sufficiently clever accountants, moreover, could effectively structure such a loan to allow lobbyists and other donors to help the lawmaker directly profit from it. According to the Los Angeles Times, for example, in 1998, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). As of 2009, Napolitano reportedly raised $221,780 to repay that loan — $158,000 of which was classified as “interest.” So in 11 years, the loan reportedly earned Napolitano nearly $72,000 in profits.

Sweet!

Comes now Tailgunner Ted Cruz, who wants to do away with those rules and limitations on loan repayments to candidates for federal offices. I trust I need not hang pink neon around the loophole for personal enrichment and influence peddling that a decision in favor of Cruz’s campaign would open in our already moth-eaten campaign-finance regulations. And one would have to have been on Mars over the past decade not to make Cruz the favorite whenever the Court’s decision comes down. Which is good, because, as Millhiser reports, the Tailgunner brought this case specifically to blow up this particular regulatory device.

According to the Justice Department, on the day before the 2018 election, Cruz lent his campaign $260,000, or $10,000 more than the amount that can legally be repaid from post-election funds. Moreover, while a federal regulation permits Cruz’s campaign to pay back all of that money using funds raised before the election, so long as it did so no later than 20 days after the election, the campaign waited until after this deadline had passed to pay back $250,000 of the $260,000 loan.

And, just in case there’s any doubt why Cruz and his campaign entered into this unusual arrangement, Cruz and his campaign do not contest that “the sole and exclusive motivation behind Senator Cruz’ actions in making the 2018 loan and the committee’s actions in waiting to repay them was to establish the factual basis for this challenge.” Cruz was essentially willing to risk $10,000 of his own money for an opportunity to knock down a federal anti-corruption law.

And, in a couple of years, if he’s still in office, and if rising seas haven’t taken Rhode Island off toward Labrador, Sheldon Whitehouse will get up on the Senate floor and demonstrate again the corrupting influence of money on the process of appointing a Supreme Court that then will be tasked with passing judgment on the corrupting influence of money. And the water-wheel of sewage goes ‘round and ‘round.

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