Jonathan P. Baird

For years, Senator Sheldon Whitehouse of Rhode Island has been a lone voice in the wilderness warning about the role of conservative dark money on the judiciary. He has described a multi-pronged effort. First, the conservative legal movement selects carefully vetted judges who embrace a pro-corporate world view. Then the movement unleashes millions in dark money from their donor network to support their nominees. Finally they tee up strategic cases and use amicus briefs to get the desired pro-corporate result.

In an article in the Harvard Journal on Legislation, Senator Whitehouse detailed a 50 year effort going back to the famous secret memo written by Lewis Powell, then a prominent corporate lawyer, which decried progressive gains. Powell argued for an unprecedented influence campaign on behalf of corporate America.

I thought of Senator Whitehouse and Justice Powell when I saw the story about the massive $1.6 billion donation Leonard Leo, a Federalist Society Vice-President, received from Barre Seid, a 90 year old Chicago electronics company mogul.

This unbelievably sketchy transaction, structured so that neither Leo’s group nor Seid pay taxes, is likely the biggest political donation ever. It left Leo sitting atop a mountain of cash. No one knows how this money will be spent but it is such a stupendous windfall that it is safe to assume it will be transformational over the next generation for the whole right wing ecosphere.

Seid transferred an ownership stake in his company, Tripp Lite, to Leo’s new group, Marble Freedom Trust. The trust then sold Seid’s company and netted $1.6 billion. It is estimated the transaction saved Seid $400 million in taxes. The Marble Freedom Trust is not required to publicly disclose its donations and it has wide latitude in spending on elections or other ideological projects.

The Seid to Leo money transfer perfectly encapsulates the dark money conundrum we face. Although an absolutely enormous donation, the deal went down in the shadows two years ago. We were lucky to find out about it at all. The New York Times reported it, but as noted, it was two years after the fact.

In the Citizens United era, there is no transparency. Money rules in politics. People have the mistaken notion that the judiciary is insulated from special interest influence. Nothing could be further from the truth.

Certainly, the Founders did not anticipate the corrupting power of corporations but here we are. It is not just a dark money flood – it is a tsunami.

Leonard Leo has been described as the most influential person you have never heard of. He is not just another conservative movement lawyer ideologue. He has been the mastermind of the conservative effort to reshape the American judicial system, especially the Supreme Court. He delivered to former President Trump the list of Federalist Society-vetted Supreme Court candidates and he counseled him on picks.

He has been remarkably successful in packing the Supreme Court and the federal courts with right wing extremists. Leo’s fingerprints are all over the successful nominations of five sitting conservative Supreme Court justices as well as the effort to stop Merrick Garland’s ascendancy to the High Court.

During an event in 2018, his buddy, Justice Clarence Thomas jokingly referred to Leo as “the third most powerful person in the world”. Leo has been effectively raising huge sums from anonymous corporate donors since 2005. The Seid transaction is a glimpse into a world we never get to see. Dark money is typically funding that cannot be traced to actual donors.

The conservative plan has been to groom and select judges who will unambiguously support the Republican effort to roll back laws and regulations they consider unwelcome. As Trump’s lawyer Donald McGahn has said,

“There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”

In response to the Seid donation, Leo has said they are just trying to keep up with the Left but that is laughable. Over the last 20 years, the Left failed to prioritize judicial nominations and it has nothing in place that in any way compares to what Leo has accomplished. Results speak for themselves.

Senator Whitehouse points out how much the Supreme Court has become a reliable ally for corporate and Republican partisan interests. He writes that from 2004 to 2017, the Roberts Court issued 73 five to four partisan decisions which benefited big corporate and Republican donor interests. To quote Whitehouse:

“They included allowing corporate interests to spend unlimited money in elections, hobbling pollution regulations, enabling attacks on minority voting rights, curtailing labor’s right to organize and restricting workers’ ability to challenge employers in court.”

And this was before the devastating decisions we saw this last term.

Leo and the Federalist Society are on a mission to turn back the legal clock to a pre-New Deal era. Incredibly, they appear to believe the law was better 85 years ago. This is a deeply reactionary project designed to benefit rich Christian conservative white men. It is a legal agenda for the 1%.

I think the overturning of Roe v Wade shows that precedent will not stand in the way of the conservative wrecking ball.

Much could be done to address the dark money plague. Congress could require much more transparency. The courts have escaped the type of tight scrutiny other branches of government require. Senator Whitehouse suggests far more disclosure of donors behind political campaigns for judge, disclosure of travel and hospitality perks and reporting of ex parte contact during pending litigation.

The hidden behind-the-scenes nature of the whole conservative influence machine should shock Americans. I expect there is much we still do not know.

When you think about whom to thank when the Supreme Court makes climate change worse, destroys women’s reproductive rights, and makes it much harder for black people to vote, don’t forget Leonard Leo, the Federalist Society and the Republican Party.