Sen. Whitehouse's Dark-Money Dilemma

Sen. Whitehouse's Dark-Money Dilemma
(AP Photo/Carolyn Kaster, Pool)
Sen. Whitehouse's Dark-Money Dilemma
(AP Photo/Carolyn Kaster, Pool)
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Democratic Sen. Sheldon Whitehouse has repeatedly warned against the dangers of “dark-money” political groups taking millions of donations from special interest groups, arguing, when pressed, that he’s equally concerned about both liberal and conservative groups that don’t disclose their donors.

But the Rhode Island senator apparently sees no contradiction in giving speeches to liberal groups that accept money from secret Democratic donors, as he did last week, telling the audience that GOP dark money is undermining the U.S. judiciary and the rule of law. Additionally, Whitehouse told a reporter last year he would accept donations from liberal dark-money groups.

Over the last few years, Whitehouse has repeatedly railed against President Trump’s success in seating two Supreme Court justices, along with more than 200 other appointments to the federal bench, even though the Constitution gives presidents the right to make these selections as long as they can pass through the increasingly partisan Senate confirmation grinder.

Whitehouse earlier this month trashed the judicial nominating process during Trump’s time in office as “rigged.” He argued that Supreme Court Justices Neil Gorsuch and Brett Kavanaugh won confirmation because they were backed by a sophisticated, campaign-style “dark-money” advertising “scheme” funded by corporations and deep-pocketed GOP donors.

“A decades-long effort by big corporations and partisan donors to rig the courts using dark money is working. They’ve won over 80 partisan 5-4 [Supreme Court] decisions,” he said, referring to rulings issued by the high court with a one-vote conservative edge.

Whitehouse, along with Sen. Dianne Feinstein, a California Democrat, both members of the Senate Judiciary Committee, introduced a bill that would require groups spending $50,000 in a calendar year on advertisements linked to federal judicial nominations to release the names of their donors who give more than $5,000. The measure would also require ads related to judicial confirmations to disclose who is funding the spot.

The Democratic senators dropped the bill amid renewed concerns among liberals that Trump could have the chance to name another high court justice – possibly before November – as 87-year-old Justice Ruth Bader Ginsburg has battled serial bouts with cancer. Late last week, Ginsburg announced she was undergoing chemotherapy to treat a recurrence of liver cancer but would remain on the court while she fought it.

Contacted about the bill’s intent late last week, Whitehouse spokesman Rich Davidson said the disclosure rule “applies equally to all regardless of ideological bent.”

That comment came the same day Whitehouse spoke about the evils of conservative dark-money judicial groups at an event hosted by the American Constitution Society, or ACS, a liberal dark-money judicial activist group that also doesn’t disclose many of its donors, first reported by the Daily Caller. 

Whitehouse, along with Sen. Sherrod Brown, an Ohio Democrat, spoke on the topic of “Captured Courts: The GOP’s Big Money Assault on the Constitution, Judiciary and Rule of Law.” The ACS said the talk would discuss “ways that progressive lawyers from across the country can help fight back against these blatant attempts to use the court to achieve right-wing goals.”

Whitehouse’s spokesman did not respond to a follow-up inquiry on how the senator’s participation in the talk squares with his concerns about dark-money political activity across the political spectrum.

In speech after speech, Whitehouse has described the impact of these “shadowy” groups as a “rot in our American democracy.”

“There is a shadow over the halls of Congress,” the three-term senator said on the Senate floor in late 2018. “The rot is dark money, and the shadow is special-interest influence empowered by that dark money.”

Conservatives have adamantly and consistently rejected that argument, maintaining that their side’s spending is lawful and protected free speech that shouldn’t require disclosure of wealthy donors by the nonprofit groups engaged in it. But the left has been far more divided on the transparency question as it fights to deny Trump a second term. 

During the Democratic primaries, several Democratic presidential hopefuls, notably Vermont Sen. Bernie Sanders and South Bend, Ind., Mayor Pete Buttigieg, promised either not to boost their candidacies through spending by outside groups with cash from secret wealthy donors or at least to disclose the big donors and the role they’re playing in their campaigns.

But that hasn’t stopped liberal dark-money groups from proliferating. Recent reports from groups calling for less money in politics, such as the Washington-based Issue One, have found that left-wing nonprofits far outspent conservative ones in the 2018 midterms and have expanded their activity this cycle.

In the 2018 midterms, Issue One found that liberal groups accounted for 54% of the $150 million in dark money spent during that cycle, while conservative groups spent 31% of those funds, and nonpartisan or bipartisan groups spent 15%.

The Washington Free Beacon last year reported that Joe Biden’s charitable foundation is filled with donations from deep-pocketed donors in the Democracy Alliance, a secretive group that actively works to keep its membership cloaked and pushed $1.83 billion into liberal causes over the past 15 years.

Whitehouse himself hasn’t sworn off accepting political donations from some of the biggest and most powerful dark-money groups on the left. In fact, he’s said he hopes groups like Demand Justice and the League of Conservation Voters donate to his campaign. 

Meanwhile, liberal dark-money groups aren’t rushing to support Whitehouse’s disclosure bill or voluntarily disclose their donors on their own.

Demand Justice, a liberal group that aggressively ran ads against Kavanaugh’s confirmation, didn’t respond to an RCP request for comment on the disclosure measure. A spokesman for the Alliance for Justice, a coalition of 100 politically liberal groups that have an interest in the federal judiciary, said it would not have a comment on the legislation “at this time.” 

Susan Crabtree is RealClearPolitics' White House/national political correspondent.

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