More on “The Scheme” — Part 1

Sen. Sheldon Whitehouse, on a Rhode Island beach.

I haven’t met Senator Sheldon Whitehouse, Democrat of Rhode Island. And I don’t know much about him, beyond a skim of Wikipedia and some other articles.

(The gist: Northeast liberal, some family money, Yale; he’s 67, doesn’t look it; married only once. As U.S. attorney he put some Rhode island hoods and crooked pols in the slammer. Critics have challenged some of his stock trades in office. The trades seem tacky but not like anything serious; after all, he bought Tesla a couple years ago — does that make him smart or stupid? 

He’s up for re-election in 2024, and I hope he’s running hard and smart, because I believe he’ll be one of the main targets of Republican dark money attack then. Never mind that he won his last two races by landslides.

For years he’s been the Senate’s main voice for exposing the bottomless corruption & ethical cesspool of the current Supreme Court, and the GOP really, really, REALLY hates that.

But this past year his dogged efforts have maybe started to gain a bit of traction. So even if he’s totally scandal free, which he looks like to me, they’ll gin up some slime and start throwing it soon, unless they’ve already started. If they can’t beat him, they could still hope to isolate him with enough slanders so he’ll continue to be ignored; that would work for them.]

I became an instant fan of his in July 2018, while watching the Brett Kavanaugh nomination hearings. That day, while other Dems mostly nagged the keg-man about Blassey Ford and his bald-faced lies about Roe, Whitehouse used his question time to tear into Kavanaugh as a tool of the court capture scheme.

His presentation was crisply concise, deeply informed, assertively eloquent, specific, carefully documented, entirely on point, completely convincing — and utterly ignored, except maybe by me.

When he finished, I called his Senate office, to get the link to his text. It was as stunning to read as it was was to hear. Also as solitary.

That was four years ago, and still, Whitehouse is practically alone on the Hill trumpeting this devastating truth, about a minority rule project that has continues every day since.

I think one big reason he’s been ignored is laid out below, in a confessional footnote plucked from his new book, The Scheme: it’s because the corruption that has engulfed the court  has spread all across the bipartisan terrain of the Senate, the House (and beyond). He has the guts to name and face up to it.

I don’t think he’s doing it as a prelude to a run for president. (In fact, he’s said on the record that he definitely will not make a try for the Oval Office.) I suspect he realizes that the work of exposure and mobilizing public concern into a movement which can (maybe, if it’s not too late) recapture the Supreme Court and interrupt its “project” of installing and cementing minority rule in service of oligarchy — that’s the major work of a full congressional career. It parallels Bernie Sanders’ three-plus decades of crusading for workers.

There’s few places for such missionaries in the Senate’s inner circles; but trod with steadfastness, it’s a road to making a difference, and a chance to achieve something like actual greatness.

So I’m plowing through his book, which is as trenchant and crisply written as his Kavanaugh testimony. A series of excerpts will be posted here in coming days. But those concerned for the fate of the Republic should read the whole book, and get started thinking about and acting to turn back the invasion of sleazy, racist, oligarchic reaction for which the Supreme Court has become one of the central beachheads and aims to be the Pentagon.

The Scheme is the product of a multi-billion dollar, fifty-year plan for taking over the court and public life. I don’t have a counter-plan. Except for one thing: raising hell about the court’s capture & corruption is what ordinary people can do, on our miniscule budgets. And we can keep at it, because it’s going on continually.

Yes, the court is well-insulated. But they aren’t invulnerable.  For much of the time such hell-raising may seem futile— voices in the wilderness, almost drowned out by gales of disinformation. But it can make a difference. Now and then, stuff happens. As Quakers say, Way opens.

The U. S. Chamber of Commerce headquarters, Washington DC.

Whitehouse: To understand how dark-money forces have remade our courts and weakened our democracy, look no further than the Supreme Court’s current membership.

All six of the conservative majority are affiliated with the Federalist Society, a dark-money group that played an oversized role in indoctrinating, grooming, auditioning, and selecting justices for the Court and in shaping what they do there. Five of those six were confirmed to lifetime appointments on our highest court by such a scant Senate majority that the senators approving their confirmation represented fewer Americans than the senators who opposed their confirmation.

These justices embody minority rule.

That’s from his Introduction.

Whitehouse: Capture is a well-documented phenomenon. . . . Big industries capturing agencies of government is a well-known and well-chronicled practice. For decades, this sordid practice was focused on regulatory agencies. It would have been indecent to think of our courts of justice, let alone our Supreme Court, as just another agency to be captured.

But once someone had that idea, once that Rubicon of indecency was crossed, once powerful forces turned their arsenal on the Court, little stood between the Court and those weapons of capture. Once the decision was made to capture it, the Court fell with almost no resistance at all. Regulatory capture became Court capture. . . .

[The framers of the Constitution] understood human nature. They were acutely aware that, in the words of James Madison, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” [Federalist #51]

There was motive galore to capture the Court.

The motive was rooted in the corporate angst at the upheaval of the 1960s and the social and regulatory changes that ensued, and it was rooted in the repeated defeats, resentments, and frustrations of the far-right fringe and its billionaire backers. The Court could give grumpy billionaires a chance for power after voters rejected their views.

The Court could check unwelcome social change and efforts to hold corporations accountable for the true costs of their activities. The Court did not have to answer to voters. There was every motive to pursue the Court-capture Scheme.

And soon enough, the “grumpy billionaires” had a blueprint, a plan. It was prepared by a man who would soon take a seat on one of the plan’s top targets:

Lewis Powell Jr.

Lewis Powell, Jr.

Powell was nominated to the Supreme Court in 1973. In 1971, Powell had written a 37-page secret memo for the U.S. Chamber of Commerce, which laid out a long-term strategy for check-mating the movements for change which were then producing reforms and breaking repressive traditions. . . .

Powell hailed from Richmond, Virginia . . . . He displayed the courtly manners of the southern elite, moving comfortably in the social, political, and business worlds of the state capital. . . . He served on corporate boards, including the board of Philip Morris, the enormous tobacco company, and he represented tobacco companies in his corporate practice.

One could imagine how someone with Powell’s background would have felt rocked by the upheavals that exposed the country to a racial reckoning and challenged the white, male social and economic hierarchies he had surmounted.

What the U.S. Chamber of Commerce wanted was a secret report, a strategic plan to reassert corporate power in the policy and political arena. . . . Powell [wrote and] titled it, “Attack on American Free Enterprise System.”

This is how he began: “No thoughtful person can question that the American economic system is under broad attack.” By this, he meant “the ‘free enterprise system,’ ‘capitalism,’ and the ‘profit system.’”

He added, without explanation, that the “American political system of democracy under the rule of law is also under attack, often by the same individuals and organizations who seek to undermine the enterprise system”—no one could accuse him of painting with a narrow brush.

The tone of the report was apocalyptic. It was rife with battle terms like “attack,” “frontal assault,” “rifle shots,” and “guerrilla warfare.”

“The overriding first need,” he wrote, “is for businessmen to recognize that the ultimate issue may be survival” (the emphasis was in the original). Powell warned that progressive voices for reform were “far more numerous, better financed, and increasingly welcomed and encouraged by other elements of society,” including “perfectly respectable elements of society” like “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and […] politicians.”

. . . Powell longed for a fight. He decried corporate “compromise” and “appeasement” and complained that most businessmen had “shown little stomach for hard-nosed contest with their critics, and little skill in effective intellectual and philosophical debate.”

He framed his memo as a rallying cry: “The time has come—indeed, it is long overdue—for the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it.”

This was necessary, he said, “[i]f our system is to survive.”

A crisis of this magnitude called for a plan of equal scope, and Powell was ready with one. In Powell’s view, “few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders.”

The reason? That pesky democracy: “Politicians reflect what they believe to be majority views of their constituents. It is thus evident that most politicians are making the judgment that the public has little sympathy for the businessman or his viewpoint.”

To combat this, Powell recommended a propaganda effort staffed with scholars and speakers to proselytize in the media, on college campuses, and in scholarly journals and trade magazines; even to “evaluate social science textbooks, especially in economics, political science, and sociology,” to correct information that may be “superficial, biased, and unfair.” . . .

Another Powell target was the national television networks, including TV news programs. “National television networks should be monitored in the same way that textbooks should be kept under constant surveillance,” he wrote.

Powell recommended that American companies flood the airwaves with 10 percent of their total advertising budgets. “It is time for American business—which has demonstrated the greatest capacity in all history to produce and to influence consumer decisions—to apply its great talents vigorously to the preservation of the system itself.”

Sit with that a moment. In addition to the propaganda campaign, Powell recommended a parallel corporate political effort, to cultivate power and stem “stampedes by politicians to support any legislation related to ‘consumerism’ or to the ‘environment’” (Powell put both words in derogatory quote marks in the original).

Political power, he said, should be used “aggressively and with determination—without embarrassment and without the reluctance which has been so characteristic of American business.”

Then came a section of the secret report titled “Neglected Opportunity in the Courts.”

Powell recommended that corporations start “exploiting judicial action” by building a “highly competent staff of lawyers” who could be deployed “to appear as counsel amicus in the Supreme Court” and who could help select “the cases in which to participate, or the suits to institute.”

This was, for Powell, an “area of vast opportunity,” that “merits the necessary effort,” as “the judiciary may be the most important instrument for social, economic and political change.” The role of the Chamber to drive that “social, economic and political change” through the judiciary, he envisioned, would be “vital” . . . .

“Vast opportunity.” Lewis Powell was right.

Powell died in 1998. But his plan lives on, and as Whitehouse details, his call to seize the “vast opportunities” available in and through the courts has been vastly successful. Its impact is felt in many fields; but Whitehouse’s book focuses on what was perhaps the plan’s central single target: the Supreme Court. Its main weapons for this conquest were –and still are– dark money, clandestine political influence, legal skills, and relentless determination.

Because of the ugly effects of Court decisions, wealthy interests are closer than they have been in a century to a quiet capture of our democracy, accomplished through anonymous dark money and through front groups with “fictitious names.” The Framers of the Constitution must be rolling in their graves. . . .

Citizens United and other Supreme Court decisions empowering all this anonymous influence represent one side of a vicious cycle, the side in which the Court cossets and protects dark money.

The other side of the cycle is how dark money has helped the Scheme to stack the Court, just as industry stacks a captured regulatory agency.

To perpetrate this is no small deed. It has required an arsenal of tactics, including a doctrine factory where useful legal theories are created, an auditioning process by which judges compete for advancement, a Senate rubber stamp for confirming them, and an armada of amici to signal the donors’ wishes to the Court. And the Scheme has it all.

So far, none of this is a secret, and there’s no exclusivity to this brief sketch. Powell’s memo, dark money, the covert march through the courts — as Whitehouse notes, some top journalistic investigators have shined their flashlights on all of it:

Books such as Jane Mayer’s Dark Money, Nancy MacLean’s Democracy in Chains, and Naomi Oreskes’s Doubt Is Their Product have done an excellent job at tracing the network of right-wing funders. . . . Their work reveals a massive disinformation campaign, managed like a covert intelligence operation, run through many dozens of front groups, funded with billions of dollars of dark money, and out to manipulate our government.

Up against it, Democrats have made virtually no systematic effort to expose or spotlight the mischief. It is one of our failings.*

But here, Whitehouse consigns to a long footnote one of what (for me) is an almost new, damning revelation, which could (and maybe should) have been in his introduction: :

Confessional footnote:

While the focus of this book is the Republican-backed dark-money Scheme that has captured the Court, a moment of reflection—and confession—on our side is in order.

On a great many occasions, Democrats at many levels failed to fight back or give public warning as the Scheme progressed.

It was worse than appeasement; it was acceptance. Walking away from the climate fight in the Obama years set the tone, as so many of the dark-money players were the same in climate denial and the Scheme. Those players learned a lesson about the size of “the fight in the dog” on our side.

A few years later, walking away from the IRS 501(c) fight squandered a teachable moment, opened a dark-money sluicegate, and again set a tone of weakness.

We didn’t even respond when Republicans began to run attack ads accusing Democrats of being the dark-money party—a cynical but clever gambit out of the covert ops playbook: accuse your adversary of your own misbehavior.

For years, Democrats failed to direct attention to the increasingly obvious marks of the Scheme; indeed, we too often didn’t even pay attention. For years, we didn’t force a vote on [Whitehouse’s proposed] DISCLOSE [Act which would turn federal floodlights on this pervasive underworld operation].

For years, we let donor-friendly 5–4 partisan Supreme Court decisions pile up; they’d grown to seventy-three by the time anyone blew the whistle. Individual bad decisions that we should have decried often went totally unremarked. In confirmation hearings, we concerned ourselves more with nominees’ stances on “the issues” than on the machinery that put them there.

We were sleeping sentries. When warnings did come, they were too often ignored. It’s said that [in World War II] French pilots actually saw the German armor divisions massed along roads outside the Ardennes Forest, readying for the blitzkrieg, and French high command simply refused to believe the pilots’ eyewitness reports. The analogy seems apt.

[Whitehouse does not toot his own horn here, but could: he carried on alone in the Senate for years, calling out The Scheme.]

During Trump’s debauched presidency, he was a dazzling distraction from these creeping encroachments. As a party, we fixated on the shiny object and did little to expose the Scheme.

In the first year of the Biden administration, the White House’s official website reveals, the president and vice president each publicly used the term “dark money” exactly once. Worse, the President’s Commission on the Supreme Court papered over this entire problem without a mention.

Our sins were of omission not commission, for sure; we were the sleepy guard, not the crafty burglar. Nevertheless, they must be faced, and I acknowledge them here. J’avoue [“I confess”].

One other note: Powell’s plan was well underway long before the earthquake of the 2016 presidential election. Its managers took good advantage of the 45th president; but if his defeats, legal and other troubles take him out of the arena, it will continue, until otherwise checked.

2 thoughts on “More on “The Scheme” — Part 1”

  1. Thank you. I will get a copy.

    I honestly do not know if it is too late to reclaim our democracy. At this point, I feel like our only chance is that the US Chamber of Commerce and their friends get too greedy for power. That last sentence almost sounds Trotskyite and the idea of allowing things to get worse so that the plebes finally have enough and rise up is what got us to this place.

    My prayers for the Republic and for democracies everywhere.

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