THE SCHEME

A damning investigation of dark money by a senior member of the Senate Judiciary Committee.

The scheme of Sen. Whitehouse’s title concerns “regulatory capture,” in which a business infiltrates a government agency to undo any efforts to make that business obey the law. “A classic response by regulated entities has been to try to ‘capture’ the agency meant to be overseeing them,” he writes, and the practice has now been extended to wholesale “agency capture.” In this scheme, the federal court system is an object of capture, which is why it should come as no surprise that wealthy businesses and individuals spent millions of dollars to ensure that Donald Trump’s three Supreme Court appointees made it to the bench. The Founding Fathers, Whitehouse writes, “did not intend courts as an anti-majoritarian back door for billionaire anti-government donors frustrated that the public hates their ideology”—but that’s exactly where we are. The author traces the origins of this capture movement to Robert Bork’s unsuccessful Supreme Court bid during the Reagan administration, when conservatives devoted their energies to placing like-minded judges throughout the federal judiciary. One strong instrument of capture came with the Citizens United decision, which declared that corporations had individual rights; one strong instrument to curtail this capture, which Whitehouse has championed, would require disclosure of any campaign contribution of more than $10,000. “No surprise,” he writes, “Republican Senators have blocked it from becoming law.” Yet another instrument of capture is the appointment of individuals to legal positions even though the legal community at large has rated them to be unqualified, without—as in the case of Brett Kavanaugh—minimal due diligence. We don’t know all there is to know about the scheme, Whitehouse concludes in this closely reasoned argument, adding, “I expect history will dig out those sordid details.”

A maddening indictment of a corrupt and corrupted judiciary.