good evening. and he represents rhode island in the united states senate. thank you. you see any number? the senate judiciary committee, most importantly, is it sort of it's customary. let me welcome senator sheldon whitehouse. thank you all. i think the routine here if i talk for about 10 minutes, then we have question and answers. so let me start by thanking you for coming out. and thank you for the interest in this book. i worked pretty hard on it. as if you get around to reading it, you'll see, it's pretty

dense stuff. i would describe it as more or less equal parts textbook if that doesn't scare you off detective story and warning flare. and as we talk about it there are two concepts i want to put in your mind. first because they'll help illuminate rest of the conversation. the first is something called agency capture or regular battery capture, which is a phenomenon that goes way back into our history. and you might think of some of the early episodes of agency capture or regulatory capture as, say, railroad barons running the railroad that sets the rates for their railroads and and there's been a lot of literature about it, both in the economic field, in the field of administrative law. so have that thought in mind?

because people often think of court as a conservative court or even a radically conservative court. my thesis is a little bit different. it's that it's a captured court in exactly same way that in the bad old days the railroad captured and ran for own benefit. the railroad commission. so that's come stepped one concept to to keep in mind is covered operations. i was on the intelligence committee for a while. my father spent an early part of his career before he officially became a state official as an agency. the official and i love reading spy novels. so for all those different reasons, you know, you see how a covert operation runs and very often governments run operations against and in other countries and very often they have the purpose of trying disrupt the

foreign country to foment dispute to prop up political parties to put poisonous propaganda into the political discussion in that country, to bribe and cajole and even capture organizations that country. and my thesis is what has happened in the united states is internal covert operation and run largely by the fossil fuel industry, but by big right wing forces of wealth. and that that's why a lot of this we haven't now our close before i just go to describing the book by saying that. i don't think the cia would be proud this covert operation we as democrats have not been at

all good about pointing it out and so they've gotten pretty sloppy. so they're things that are very sloppy like for instance, the federalist society, which was the for the part of the court operation that planted people they wanted onto the court its by a group called the judicial network which is the pass through and the ad buyer for the funding for the political campaigns that were launched on televised an opposing judge garland and supporting judge gorsuch, judge kavanaugh and judge barrett and they were taking checks for $15 million, $17 million and turning that out on to probably not our television screens, but other television screens around the well, if you were a sophisticated covert, you would

probably not put the federalist society and the judicial crisis network on the same hallway in the same building in washington, dc. but they did and they actually answer each other's doors. so there some slip ups in the tradecraft as an intelligence official call it, and some of that is what i described in the book. so how does the scheme work? well, the first thing you do is you pick who's going to be on the supreme. never been done before to have a private organization choose who is going to be on the united states supreme court ever, ever. and to have a private organization do that, choosing while at the same time it's taking large, anonymous contributions. you don't have to be a genius to figure out the possibility of corruption in all of that and then of course once they've been

chosen you need to do two things you need to push them to the public and get everybody riled up. so you go down the hall to the judicial crisis network and you run your from there, a little sidebar in the judicial crisis network, it's one of eight front groups are operated rather collectively, by a guy named leonard leo, who you might have heard of. he's guy who's set up additional front group recently to receive the $1.6 billion donation from billionaire barry side that has now know oozed its into the rest of his network and who knows where it is. but it landed in something called marble freedom trust out in utah and, then went on from there. so have that operation pushing all it at the same time. my thesis that the people who funding this operation and can write a $15 million check or a $17 million check are also writing big checks to mitch

mcconnell to make sure that his off the books non declared political operation not the campaign contributions which you have to report but what they call the outside money, sometimes called dark money the that they keep filling up his coffers. they're so as these candidates come they're support for them among. republicans on the committee is locked down by those enormous generous donations. and we saw that pressure put to quite a stress test with, for instance, judge kavanaugh. it is not often senators are asked to vote on a nominee for the united states supreme court who has unresolved issues about whether or not he committed sexual assault on a girl and there were other charges from college stuff, too. so, you know, ordinarily senators would say, hey, find us

another one who doesn't have those problems. but something was happening so that he shot through. ditto when you had the excuse that you couldn't put judge garland on the court because it was within a year of an election and everybody stood up altogether and said, yes, i'm sorry, that's our policy. absolutely, positively can't put a justice on the supreme court within a year of an election. and they all stood by that completely manufactured doctrine. and then as soon as the notorious rbg, ruth ginsburg passed away, that doctrine went out the window. and while votes were actually already being tallied in the election, they jamming justice barrett onto the court. so again, an audience free situations to require united states senator to vote one way and then do a very public 180 and go exactly the opposite way. a little weird and a sign i think of the pressure and then a bit of a confirmation of the money pouring in. lindsey graham and the last

piece is once they're up there, they can't be expected. know everything that they're supposed to do. so how does one communicate with them? one communicates with them through what are called amicus curiae friends of the court and it's common for people to file amicus curiae briefs. i've become a specialist. i find a dozen of them in front of this court to warn them off about this stuff. but what i've discovered is that the groups were behind the appointment and money that was behind the appointment are turning up in flotillas of marquee who you can connect through common funders. but the court doesn't require very clear excellent of who's funding stuff so it takes somebody like me to dig it out. in one of my briefs i actually did a table at the end in the form of an appendix and it went

down a list of maybe ten of their mep and then cross-referenced it across the top with four major funders and check, check, check, check, check, check to see all the ones who had common funding from different funders. so they come in flotillas of maybe 8 to 12, usually. there was one case that was particularly important to them where the flotilla was 50 and this even if you know the way the supreme court works, the case comes in gets accepted by the court and then the determination how to proceed with it whether to go to a full argument briefing called the search your right stage the stage supreme court practitioners call it. and then if you get cert, then you move on to the full argument and briefing. and it's usually at that stage all of the amichai appear because that's really a relevant stage in terms of having an influence over. the final decision. no, no, no, no back at this stage in this case 50 showed up so they sending a megaphone

blaring signal to the court hey guys one really really really, really matters to us. and what was it that mattered so much to them? this was case very poorly noticed, very not not known by many people where they created a constitutional right to dark. so if you are operatives whose tool for mischief is dark money, the most important thing to you in the world is to be able to continue to your dark money tools, the sin that makes all your other sinning possible. so this dark case was huge and that it would explain why 58 showed up at the start stage and why 6 to 3 that created a new constitutional right at around the same time that they were taking a certain other constitutional from half the population. so this has been the and that's what i tried to explore in the book i did a thing last night

with jane mayer. you may remember her she's a brilliant brilliant who wrote actually the book dark money and she's going to she's working on a book on the court also. so i'm kind of her like front and she'll do the really cool one in a year or two. and by then who knows, maybe somebody will have come out. you'll have whistleblowers and you'll have people who are willing to talk about what went on and you'll have a little bit better evidence about what i have proposed. but the moment my proposal has to stand on the that is laid out for in the book and i hope you enjoy and i hope you find it convincing and i'm happy to answer any questions or respond any comments about it. so with that, the floor is yours yours in back. yes, sir. given your backdrop in the book, what we in the audience and the lowly folks in the bleachers do to turner of course correct this

ship. yeah. i think most most of the members of the supreme court are concerned about the integrity and reputation of the court. and one of the reasons i'm as obnoxious in their view, as i have been about that institution is to create a sense of peril for them that if they keep this, they're going to keep getting called out. it's going to be bad for the institution. so i think the more that people challenge the institution, the better. in my book, i quote a letter from who resigns their membership in the supreme court in a very emotional letter to the chief justice saying, i just what you guys have done, you're not a court longer. i can't the only thing i can do is to turn in my ticket to practice in the supreme court. and so here's here's i'm doing i also think that many of us are involved with groups that care a lot about issues, whether it's

civil rights groups or environmental groups, good government groups and many of those groups have overlooked the common threat to the things they want to accomplish from the pact supreme court. so if you're a member of an organization, the league of conservation voters or, a civil rights group, then know use your membership platform to say, hey by the way, you guys, i think as an organization, we need to have a position on what's going on at the supreme court and dark money. and the last thing is that politically we can get rid of this dark money. if you look back at the citizens united decision that let unlimited money pour politics 8 to 1, they actually said, oh, and by the way, this unlimited money we're letting pour into, it's corrupting. it's corrupting and the way we're going to defend against corruption is by telling everybody, that it's going to be transparent. that's going to be the defense

against corruption. it won't be anonymous money. it will be identifiable money. and of course, they were provably, demonstrably and completely wrong about that. and they've never cleaned up that discrepancy between if it's anonymous, it's and we're cool with it being anonymous but we can fix that because the way the decision was structured they had to allow for transparency so we can accomplish that transparency in congress. it's my bill. every single democrat voted for it and we last called it up. unfortunately every single republican voted against it because it is the one red line for mitch mcconnell. you may not cross him on. so it's going to take more public pressure to move voting so that we can actually get that bill passed, bring transparency, by the way, everybody hates, dark money. it's that issue jane mayer wrote about in the new yorker when she got her hands on the transcript of the conversation between koch brothers minions and mitch

mcconnell's minions. and they were talking about this one issue that was like kryptonite they couldn't fix it. they couldn't clean it up, couldn't make it right. and they said and people, they're tea partiers hate it. just as much as the bernie bros. everybody hates this. and this that it was is is dark money. so the public is there. and the pressure just needs to be brought to bear on the unfortunately compromised political institutions of our country to shackle unshackle themselves the dark money. yeah. can you say like how a person like me or anybody in this room could say in like two sentences, what's the problem? like if you just say dark money, people don't quite understand what. that means if you say the supreme court judges are being bribed, mean that's kind of over the top. maybe even though it isn't. so what you're not being

directly right is captured is the word that i would reduce. so how you just say this and sort of the people's language that aren't lawyers or even that well versed in political issues, i would say it's long been stated that money is the mother's milk of politics and that money is allowed to in unlimited denominations and through hidden channels that milk turns pretty rancid. so let's find out who's. making the big donations we're entitled to know that. and the way rhode island's own brucella up on the first circuit had, the chance to write a decision for the first circuit about this maybe a year ago and he was clear on that point that part of being a democ crazy is being able to evaluate what

somebody is message is by understanding what their motives are and can't understand what somebody motives. if they're behind a mask and you don't know who they are. yes, sir. all right. so i've i've read the book and i think it's fantastic. i actually told my wife that it reads like a true crime novel, which i read. but you touched on the supreme court justices auditioning their role. yeah. through prior cases and we've seen through the trump era and you've alluded to mitch mcconnell in the money coming. we've seen kind of laws and standards pushed in what seems to be just for power, for personal gain. so and i understand that you're saying you know, there's not an appetite for the american people from this type of thing. but if if in congress are concerned, their own power, their own reputation, people on the court are concerned about their own power and reputation.

then how can we, as the american people trust that the organized nation institutions? will fix themselves? yeah, really, really good question. and and. i would say that when corruption and, orderly governance contest, one another, the curve is like that. it's very easy to eliminate corruption through orderly governance at the early stages. and then as it becomes more and more and there's more and more corruption, it becomes harder and harder to find of orderly governance that can push back against the corruption and then the next thing you know, you're in russia and there is no such as orderly governance and everything is a show, everything is corrupt and it's all run for putin and his oligarchs and and

the terrible question. we all have to face as citizens is how far down that steepening have we slid? i hope that the results of this election being a little bit better than feared are a signal that there are some brakes on that curve. i'm delighted people are just furious about the dark in terms of the polling of the public is exactly where you would want them to be. so now it's a question making sure that we put pressure on those political institutions either conform to orderly governance and push back on these avenues of corruption or face consequences and course, that's why they packed the court because they don't face you can't vote them out. but that's how i how i'd answer you. i hope we're not too far. so it could either way it could go either way it could go either way. yeah, yeah. i'm that we're okay but it's plausible that we could continue

to spiral down get to a point that's really hard to come back from our son graduated from notre dame law school. yeah, and guess who? one of his professors was. married. she was clearly a very, very bright person. she is? yeah, she's too radical. and she was a very charming person in the hearings. she never her cool. she was very, you know, thoughtful and all of that. so her persona was fine, but she was chosen for a reason. but he was thought she was just a little too right at the time that this was maybe how long ago? ten years ago. maybe ten years ago. she was a professor there. he thought she was a little too too much to write. you'll get thesis proven. yes, sir. this gentleman here. so what are you going to do all over place? what makes you confident that we're not in the putin track?

well, as i said, i think some of the results from this election are a signal that people are themselves pushing. there was a very widely held strain of thought that talking about democracy was a stupid thing to talk about. the people only cared about gas prices that the president should not have given his speech about democracy because it was. and who cares? it's inflation and it's gas prices. and as it turned out, it really wasn't. and one of the test cases coming back, which i'm really happy about, was katherine cortez masto, my colleague who won reelection in nevada by the tiniest, tiniest of margins. and when when she into this, you'll remember that literally the day that putin crossed the border into ukraine, the fossil fuel propaganda machine unleashed itself.

prices going to go up. it's all biden's fault. you know, putting immense pressure on the american consumer and. we were on the losing end of that fight and she in her race with laxalt, turned that around and she went on offense. she just go on defense. she said, wait a minute, fossil industry sets prices, not the president isn't communist russia. the industry set prices. and by the way, we know how they're because they got to tell the truth in, their financial reporting. so when they report their profits, we know they're gouging and a user, they are in their pocket. you, sir, have been taking their money. you, sir, will not stand up for nevadans. you will do whatever they tell you to do and let them keep gouging and, you know, basically, in a nutshell, you are corrupted by the fossil fuel industry. and that turned into a winning argument for. so that's just another little

that the public is willing to listen to this. if we would talk about it more and not just reflexively go to where the pollsters tell us. yeah, i was thinking of thank you very much for that. i haven't read the book yet, but thank you very much. saw i saw your presentation the dark money earlier congressional hearings. well, what i was going to say is when you you i was listening to gerrymandering discussion in wisconsin and that the populace is democratic you get the get you know by you know a few points for the governor but the but the house the two houses are you know 65 to 35 due to the gerrymandering and in how that relates on this slope referred to because if you can't control it voters don't choose any longer then you've got a real problem. but your answer right. well how do you how you i'm gerrymandering has always gone

well traditionally was a bit here and a little bit there if went democrat republican but now it seems to have passed that pale. is it is it retrievable. yeah. well, traditionally they were gerrymanders the original was right up the road in massachusetts. and the original i his name was actually pronounced gary. but anyway when they designed this weird shaped district for him that was the gerrymander. the purpose was to punish him and a long time gerrymandering had the purpose punishing the people you didn't like and making it hard for them to win and helping the people you did like and making them easier for to win. but when this red map effort rolled out in about thousand and ten, right after citizens united, it a different purpose. and it was to actually make things a little bit more difficult for the people you liked and a little bit more easier for the people you didn't like. but to the point where you were

affecting the overall balance of the states delegation. so you take all the democrats you could find ohio or pennsylvania and would pack them into districts that you drew around them for maximum density. and then that left you the rest of the to apportion out to republicans. so i think it was in 2014, if my is right when they had that race after the citizens united the penalty in ohio were virtual ties and the delegation went like 2 to 1 or i think in one case it was even 13 to 5 in favor of the republicans because they packed every democrat into those five districts and they could now run the table in the 13 with 60% margins and so it's it has a whole different purpose now. and sadly again, a, it's a blow against the supreme court.

the supreme court said, oh, this stuff is too complicated. it's non justice viable, which we can't adjudicated, we can't determine it and. in my view, that was not true. and in my view it had been proven by all courts below that had already just associate it. and if that's the word successfully at the trial level and then at the circuit court level. so they came into an array of cases and precedent decisions that had no trouble at all adjudicate justice creating whatever you want to call it. this and then are the clear blue sky. they said nope, not justiciable. we wash our hands of go for it republicans. and that's the dark money. and the dark money poured in. the dark money was red map. yeah. fine mess we got. yeah. how, where. i mean do think amy coney barrett and kavanaugh are they were bought in.

uh, for sure. kavanaugh is for sure. i don't know enough amy coney barrett to know whether she lives a bubble of her own views and has just the bubble just happens to be exactly the kind of bubble that federalist society folks were looking for and liked and wanted get onto the court. but i know for sure that kavanaugh knew exactly what he was doing. kavanaugh did this stuff for president bush, and that's how we got to know leonard leo is organizing the outside money influence over those appointments. and if you want to know the power of this, even early on, you remember a woman named harriet miers. harriet miers, white house counsel for, president bush. she was very conservative. she was female at a time when it would done them some good to put another female judge on the court. and she was very conservative

and she knew him personally as white house counsel. she's around him every day up goes her name as the nominee. and the president had to effect a humiliating withdrawal of name because of the pressure not from us not from the left, but from the far right saying, no, no, no, she might. another souter. we want somebody who's going be more like bork and we're still mad about it. and so he had this uproar he had to quell on the right. and so harriet miers with withdrawn and in her place came a relative unknown who we all know right now, because his name is samuel alito. so when you're a powerful network that you can make the president of your party withdraw his own white house to put your person in after the white house, counsel has already been named. that's some power so that's what we're up against. kavanaugh watched all that

happen. he was not on the trump list. and he was desperate to get on the supreme court. so how do you get on the trump list? so he went auditioning. he did like. i want to say 50. he did a great federalist society roadshow and he went to federalist societies everywhere and he made sure people understood and he things that he knew the big donors would like into decisions that he was writing of the dc circuit. he was a champion auditioners. he auditioned, like you, would not believe and next thing you know, poof, suddenly he's the nominee and nobody's complaining that not on that list. oh so off the list was such a big why would you not complain if somebody was picked off the list unless somebody knew that. the winner same behind him all this. yeah well thomas came on very

early on really before this got very robust and i don't know because it's now old to know the full backstory of how he selected and what role for writers had they were really mad about bork so they were you know, looking to have like that come in. it's interesting to watch what's going on right now and why he's not recusing and what's going on. you remember the fall in the first decision he made about investigating the insurrection. he said i couldn't be expected to recuse myself. that absolutely no idea what my wife was doing. i had no idea she was involved in an insurrection out of my house that gave me. yeah, but even if you believe that now in this vote, we're at a stage where, everybody knows what mrs. thomas doing. yeah, he must read the papers. he must know now, too. so how is it now?

doesn't recuse himself. it's kind of a it's a conundrum. it relates back to them having no or investigative all code of ethics. okay. yeah. so i just want to say, i'm not trying to give a shout out to your earlier book captured. i started reading this one and i thought i want to go back and reread and i've been enjoying that so much. then the chapters do sort of stand on their own and you do talk about agency capture there and you talk the insidious lewis memo back from 1971, right before he on the supreme court. it's it's got a deep dive through captured into the specific supreme court. yeah no so i'm really deep in it, enjoying it. but i do want to ask what can we do between now and december 31st? is there you can do about you know the senate with the house while we have both bodies on on

the ethics and the supreme court and recusing i think there's a good chance that the house judiciary committee might have some snap hearings into this last episode. this is now twice that there are allegations of of decisions were being cooked up in sam alito's office. and this there's a live witness saying i was told i knew and he's got a whole array of contemporaneous and things like that where he's telling people you're going to be really happy with this decision. know and he sent the hobby lobby executives up to sit there in the alito and scalia seats and the decision which don't know if you do if it was going to be you like dagger into the case they are trying to make so there are all there's all this evidence that in fact he did know he actually acted as if he knew. he didn't just say it so it's going to be to dig into that particular of the and i strongly

suspect that between my coordinate chairman hank johnson and house chairman jerry nadler and departing speaker nancy pelosi, the decision will be made to move out into a on that. and they can move more quickly than can because of the way their rules work. so god bless them if they go. i wish them well and i hope to help and what would be the outcome of a hearing that would have a long term impact. it would continue to build the case that something is seriously wrong with the court. the court is desperate to convince everybody to see here. folks just move along. and for like me, who believe that there's something very badly with the court and manifest itself over, over and over in innumerable different ways, then you've got to push back that pressure that this all fine and normal it's not fine and it's not normal. but the veneer of this being fine, this being normal is what allows to keep doing what their

what doing. and so anything that a bite out of that veneer of normalcy and everything's okay i think is important and at some point if you know there's a breakthrough we didn't get watergate on day one of the hearings it took a lot of work and a lot of investigation. i think that that's what we need to do about this court. how much of a difference will it make if? not if when senator warnock reelected over me. over what's his name? so the question was, for those who've been in the back, how much a difference does it make if when julia cracks, me, senator warnock wins over herschel walker? the difference it makes is that when the senate is 5050, as it is now, we are organized under an organizing resolution that, has its roots in earlier 5050

senate and it has some limits on what the so-called majority party can do. so for instance we have a majority on the judiciary committee. we're just tied. if a judge comes through and gets a tie vote, they don't automatically go onto the executive calendar for vote on the floor. so if the republicans want to slow things up and they vote against a judge, they just sit in the committee and we have to go to floor and get chuck schumer to put an extra on to move that candidate from the judiciary up to the executive calendar and then start the process of voting to get them confirmed. so it would speed up our of clearing nominees. i would also except where the rules provide otherwise allow us to get subpoenas right now in a 5050 environment. right. you need to get a republican to join you to have enough votes to get a subpoena. so investigative capability and

confirmation capability would both improve quite a lot. and those matter in an arena where we to legislate have to deal with speaker mccarthy. it's going to be a challenge, but we can confirm and we can investigate it to our heart's content. so having that flexibility that added power is going to be advantageous and know when we're knock wins. yes. has been any discussion the judiciary committee related to expanding the court? yes. and my my response to that is that you to take a step back first and understand that democrat suck at product. yeah so. and as a lawyer you know if i was to go into a judge and say i need extraordinary relief in

this circumstance, i'm not going to get it. in fact, i'll get thrown out of a courtroom if i haven't made the case for why it's important. first or if i were a doctor, came at me with needles. no way. but explain to me what the illness is and how the needles will cure it. and suddenly everything changes. so whatever your analogy is, it's important. i think that we make the case, which is why i went to the trouble, blew all those weekends and nights writing this book to help make the case so that the aperture of how you fix it opened more widely. because if everybody thinks the supreme court is fine and this is all normal and this is just weird. democrats trying to take over the court and do court packing like fdr then we're going to get a very different response than if people understood what went wrong. this is a captured court. they're behaving in a completely predictable and totally aligned the big donors who put them there. and that has to change because

you're doing that. you're not a court any longer. yeah. is there a possible process to term limit the the supreme court justices. that's my first question my second is are you going to be on npr time soon? they have me on from time to time. there's a nice talk show up in boston that puts me on from time to, time and for this book. they may have me on at some point. with respect to term limits for the court, i've actually filed a bill that would do just that. and i think quite clear that we can do that. the question can we do it retroactively retroactively and so that there's going to be an interesting conversation about that and if it were to pass, i'd probably litigation about that which would be very interesting if the supreme court would be deciding itself.

so yeah, yeah. but yes, i'm pursuing that. i think that at the moment my pursuits have been primarily about transparency. so if you show up in court as an amicus curiae, i to lobby the court in the way you think a decision come down, you should have to disclose those who's paying you to be there seems pretty clear if you are a justice and you are getting lavish hospitality you should have to disclose that you got lavish hospitality and who gave it to you and they don't right now they don't follow rules that everybody else does in that regard they've got a trick for getting around it. and where there is recusal concerned, there ought to be a forum of some kind where you go to have that recusal recommendation out, you shouldn't be allowed to. just decide for yourself. hmm. i'm feeling mighty honorable. i don't think i have a problem. i'm just going to go ahead and

decide this case. that's not the way it's supposed to work. in fact, that principle is so old, it's in latin. memo. judith in sue causa. never a judge in your own cause. and yet that's the way the supreme operates. say nobody tells there's no investigation, no inquiry, there's no determination, there's no reporting. they just play play it the way they want to. yeah. nice job. if you can get. it that joy. there was a hand up back there. what does the chief justice mean? i mean, what is why did they say chief justice? there's no it doesn't seem like he has any power to say anything, thomas or no, i'm not going to be expert on this, but are a couple of things that the chief justice has. he has the ability to assign the case as long as is in the

majority, he can decide which of the justices. in the majority is going to write the case. if he's in the minority, he doesn't have that. the senior justice who's in the majority of the case then decides who's to write it. right now, that's thomas. so he has that he has. preeminence in questioning to go first and all of that so there are some ceremonial aspects he leads something called the judicial conference and, calls it every year to an annual meeting that he holds that helps direct administrative stuff in the court. and he's the court's chief administrator and those things come up relevant to this in two ways. one, you saw that when that alito leak went out of his draft opinion. they all got mad as hell and they said, we're to investigate

this. the chief justice said, i've the marshal to investigate this. so he clearly demonstrated his belief that he had the power to order an investigation. and what i've been asking him and telling him and indeed told him at the last judicial conference meeting, which i get invited to, not his favorite invite, i'll tell you, is, okay, now that you establish the proposition that you can order investigations into matters, investigate what thomas knew and when he knew it about his wife's activities, the insurrection, pretty straightforward investigative stuff. so it opens it opens a window for him to lead an ethics regime in which there is at least investigation with traditional investigative principles, that if you lie you know, you're accountable and it's not just press releases from the judges. so that, i think is pretty

important. and then, of course, he could always move to try to adopt a code of ethics and to determine a way in which that ethics code could be enforced. so he has he can't affect any other judge's decision in a case that they're absolutely independent on. but this administrate and oversight aspect of it is very real for him. and my guess he wants absolutely no part of it because it's a mess and it's going to make some of the judges mad at him and all that. but it has to be done. so we're continuing to pressure him. dude, as long as you can investigate. and here's something that's imminently investigative role and it really depends the outcome whether somebody should have properly recused themselves really depends on that investigation can't not have

one. so we'll see how that all turns out. but that's the kind of overlay that of being chief. yeah, i'm just that it's so that corporations are. people. yeah. that i'm just wondering to what extent with the new the justice whether there's any listening to logic or is it just the the dark money power and like how how do they dismiss a logical argument. yeah what's up with corporations being people. well if you don't mind just a quick race history. if you go back to the constitu lution and to the philadelphia debate and to the federalist papers, there's not a mention that a role anywhere in this for corporations. zero. so the idea that have a role in here has no origin list

foundation. what so ever big corporations grabbed a lot of power and ran railroads and mining companies and really corruptly until teddy roosevelt came and basically championed for the whole country trust busting and getting rid of it. and you had those wonderful writers who were doing all the investigation, the muckrakers and all of that, and they kind of pretty put corporate power back in its box until as describe in this book, the u.s. chamber of commerce hired lewis powell and said, how do we get power back? and he wrote this memo that laid it out. four months later. he's on the united states supreme court as mr. justice louis powell. and while he was not at all wing in terms of a of the social and cultural decisions that he made, one thing that he did very deliberately decision after decision after decision was

create and expand a role for corporations in political system and in elections. the that corporations have in our right now is an invention it's an invention begins with the bellotti versus massachusetts case of powells and it culminates in united but it is an invention and it was invented by republican appointees on the supreme court and like frogs in the pot we just kind of let the pot get hotter and hotter and let the corporations get more and more power without realizing they have no business in this at all. i mean, the ceo has enough advantages being a ceo without having the whole corporate treasury to be able to launch politics like you know some giant transformer beast. yeah. a follow up. if citizens can be drafted, why

can't corporations since their citizens not are not corporeal citizens so it makes them a little hard card to draft. yeah but it's a very good question it just exposing the illogic of of all of this. yeah what's the deal with christian fundamentalism and how much is that what would you like christian fundamentalism. how much of that driving this. i suspect a fair amount because the far right has long stood on two pontoons. one is a cultural pontoon and the other is protecting corporations from regulation and and all of that and binding two pontoons together has been very, very important. so when this whoever it was that picked the list and was in the

room at the federalist society when, they picked the judges. they were looking at how people were going to be on both cultural issues and on climate polluter issues. and i think for a lot of these very rigid religious views were part of the sail pitch, part of the credentialing that made them suitable candidates for the court and it was reassuring to know that somebody felt so deeply about, let's say, the abortion issue that it was, you know, imbued their spiritual core, meaning that they're less likely to go south and do another pennsylvania type decision where. they said, yeah, we disagree with it, but we've got all this precedent, so we're going to go with precedent. so i think it was a it was a it was an indicator for the people

picking the judges that this one would be reliable on the cultural pontoon. yeah. i haven't the book yet but i bought it and i'm excited to see you. my question you may have answered in the book and, i'm just wondering if you i know you've explained you wrote the book. you know, but was there a moment that you remember something where you felt like, okay, got to write this book was was yeah. where you are willing to stay up and go right. there were actually two, two moments. the moment was when harry reid then, majority leader of the senate, told me that he had been instructed by the obama white house to cut the knees out from

nancy pelosi and kill off her cap trade bill that she had fought through the house and actually passed. and that were going to do nothing on it. it was just going to shrivel up and die because people were tired. they'd been all this rancor about health care and obamacare and just want a little bit more peace and quiet. is that in the book? yeah, kind of generally, yes. and really infuriated me. and that's why i started doing these my time to wake up speeches. nobody was talking about climate back then. i just well, --, every week somebody's going to talk about climate. it's going to be me. it's going to be me. and as i did that, i started looking into what the hell went wrong. because when i got to the senate, climate was a bipartisan issue. you had a lot of people with by bills. and then january ten, all of that died like heart attack, just bang. what happened in january of 2010? citizens united and the fossil

industry was ready for it and they pounced. they had the tools now to tell mitch mcconnell, get your caucus lined up and you'll never want for money again. don't. and go look at bob inglis in the house. we just hung him from a lamp to show everybody what we do to people who won't line. and with that, this artificial partizanship on this issue began. so i started looking more and more into this. and then at the same time i started seeing weird things happening at the court. i, i used to do, i was an appellate practitioner and i've argued in the supreme court, i'm no great, but i know the landscape. so i was an early early person to say, wait a minute, that's not that's not right. you shouldn't do that what's what's what's up with. and then i began to notice that a lot of the same groups that had been in the climate denial business were showing up in the court packing business. so that really got my attention and one day in the caucus we're having lunch it's perfectly nice day and i stood up one of the

decisions had been just rendered by the court and i said you know folks, this is going to sound a little strange, but i think we really got to think of the court in a different way. we just can't give it the credence that it's playing all this on the up and up. i think we got to look at it the way you might look at a captured agency. and we've got to think about a way to try to fix it because think they're coming after us and they're serving other and all this is wrong. and i basically got like quietly heckled back into my chair saying, no, everybody, the supreme court, you know how we can't possibly challenge its integrity? you know, we've got to support it as an institution and all that sort of stuff. so at that point i thought, okay, i'm enough, have to make case. so i went back and started writing that the first article that i wrote that went through the record of the supreme court showed that like 72 to 0 is their record in wins for the money behind them when it a 5 to 4 civil case and then by then i

was armed and the next time i brought it up again i got before i could get that you know skeptical let's call it that way skeptical reaction. dear pat leahy, who's been chairman of judiciary, who is chairman of appropriations with the president pro tem of the senate, stood up and said, you guys, he's right. we've got to do this. we've got to think about this whole new way. so it was that sitting back down in my chair thinking, oh, boy, did i not make the sale just now and then figure out what i'd to put together to come back that was really where this started. yeah, in the back. getting back to dark money and what we can do, interested in what you see is the value or validity of state ballot issues such as just passed in arizona. yeah, i think it's terrific.

it's like you've got two things converging. you've got a public that, as i said, absolutely despises and loathe dark money and understands in our gut that it is corrupting and the frustration that we feel about not being able to do things about drug prices, not able to do things about climate, not being able to do about a corrupted tax code, has something do with unlimited big anonymous floating around. so there's a very powerful force. and if you weren't watching, that powerful force just blew in arizona, a referendum through the election, the past better than 70% saying you got to have disclosure of contributions in arizona at in state races. so that was a big deal because, you know, other races in arizona were being fought to the death and it was a hyper partizan

environment. and even in that hyperpartisan environment boom, this thing went off like a volcano. so it was very, i think, significant on the other hand, you've got this little screw up in the supreme court that just decided this. americans for prosperity found nation case that said you've got to constitute all right to dark money and. those things are going to collide. and unfortunately, the arbiter of where that boundary is, when that collision gets resolved is going to be the folks on the supreme court who created this brand new, horrible write in the americans for prosperity case. let me give you, if you don't know the players, i spent a lot of time looking at the stuff i like know i'm like that guy who can in this. i'm like the guy who can name like who? the red sox put on the field in 1987. i have no i couldn't name one of those, but i know the players in this field and when this went up

the original plaintiff in the petition of the supreme court was a group called the americans for prosperity. if you're watching this, you also know that there is another group called americans for prosperity and americans for prosperity is the primary battleship in the koch brothers political armada. it is the mother ship. it's the beast. and the way people work now. playing in politics, you have a501c3 which is taxed and you have a501c4 which is allowed to play in politic and they're in the same location, the same staff with the same donors, just a pure corporate veil between the two. and in this case, where the court decided that you do dark money and it was protected by

constitution, they're not idiots. they know perfectly well that the corporate veil between the koch brothers political battleship and this seemingly nominal plaintiff was a veil that you could pierce with banana if you wanted to. so it's not a good sign about where this court is going is another reason to kick up as much dust as i possibly can before. the dread day comes where they say, you know, we take back what we thought in citizens united. there's actually a constitutional right to anybody to spend as much as they please and nobody ever needs to know about. that's our new constitution. so the the the the public political forces is super strong. still. and it blew through the partizanship the arizona election, as you pointed out. yeah, i'm glad you're there. oh, you're nice. i wish i didn't have to do this. be nice to just have it be fun and friendly and the usual

stuff. but this is what it is. tell me, can you imagine for a moment you're in a great position to do this. what is the peril if you could describe it, if a state you know, decided, well, we're just it's the supreme court. we all know they're corrupt. we all know they're. but we're just going to ignore what they say and on a state level and just ignore what's the describe the peril of that. yeah. the parallel of it is that it degrades the institutional legitimacy of supreme court and the the quandary that i always is when i go after the mischief that the court has done to point out the mischief degrades, the integrity of the court, just like the kid yelling, mommy, why

is the emperor wearing no clothes? i can see his -- kind damage the legitimacy of the emperor walking down, you know, the emperor wearing no clothes and so it's a it's a persistent quandary. i'm working right now on an article to look at that in a more specific way, which what the court is basing its decisions on facts. that are false facts right under marbury v madison going the way back to chief justice marshall always said it's the exclusive right of the supreme court to say what the law is. and we are supreme and respect to saying what the constitution and law we rule over congress. we over the president, we rule over the states. we are supreme, but there is no such principle that allows them

to say what facts are and if they've gotten the facts wrong, then how is it appropriate to stand a legal proposition on facts? and that takes you right back to citizens in which decided this is all going be copacetic because all this unlimited money is going to be independent of candidates. and all you got to do is talk to trevor potter and campaign leadership council to know how false. that is and it's all going to be transparent and all you have to do is look at the newspaper and know how false that is. so these two premises on which that decision stood are totally false and have totally collapsed and yet mad that decisions still float up there with no factual standing predicate left for it. so that's the way address that problem by looking in a legal way very and trying to articulate a rational doctrine

that does not undermine the court when it's behaving itself and making decisions on real facts but when it goes on these wild excursions in which it's hopping along based on made up that it hops on, then that stops and i think that that is the way you resolve this without compromising the integrity of the court. but keeping it within its proper bounds. by the way, the rule is appellate court shouldn't find anyway right or wrong fact finding belongs at the trial court level. and what you're to do as an appellate court is, if in the rare chance you decide that the trial got the facts wrong, you say, we think the trial got the facts back. you go for another round of fact finding, not. we think the facts are wrong. so we're going to make up some of our own right now. so i think that would be a very good discipline. the court i think it's consistent with the legitimacy.

the court and the institutional integrity of the court and it's the proper bound for the court to respect its. so we're working on that article right now. yes, sir. let me do the in front green sweater and then behind and. i, i, i'm a law professor and i teach law and i've been horribly wrong. no, not at all. what. know what i'm interested in? because i often have a hard time articulating is given everything that you've articulate. it's so well tonight. and i i'm sure in the book, although again, i haven't read it yet. but how has the affordable care act survived such it is as it has the numerous assaults on it in the in in our system that have made it to the supreme court. it's fascinating, me reading some of those cases that justice roberts you know, i would love to hear it. so here's my theory of the case.

when the affordable care act came to the supreme court chief justice roberts, who was a very smart and very well connected and kind of the ceo and corporate boardroom environment of the republican party and a very committed republican recognized. two things. first, he recognized, looking around that republicans had no alternative. right, that if they this back his whole party would be like what was the the warren buffett says when the tide goes out you, find out who hadn't got their pants on. so if the tide out because he said that wasn't there suddenly there would be the republicans with no pants on with no alternative. what do you do? so it would have been intensely politically for the party, irrespective of the noise in the

what's wrong about, you know, how bad obamacare was they hadn't done their homework in that case to have an. the second thing is that you might have undone a of it but you wouldn't you were never going to be able to undo getting of the fact that the law got rid of of adverse selection the fact that you had to take as an insurance company comers you meant that if everybody's playing by those same rules you're fine. but if you've broken it down and now suddenly you've got no support and you have place to move, high risk people and you own those folks, then people who come in with liver cancer and got a huge problem on your hands. so the business model of insurance was threatened by the outcome of throwing out the of obamacare without the adverse election problem being solved. and so i think he knew from an insurance point view this very powerful very, very republican

supporting industry was going to take a harpoon in the heart if obama was undone in the way that it had to be undone. so you look at those two things and you can say, well, i'll take a low heat. and by the way, is a sweetener. he threw in two doctrines that one, he shrank the commerce clause quite a lot, which would have been like front page news if it had happened outside of all the ruckus about obamacare. and then he created this new they call it anti-drug warning doctrine so that the government couldn't require states to do stuff by conditioning funding on it to very, very powerful doctrines that kind of snuck by everybody because they were. so it was a very in my view, was very clever and strategic decision and consistent with him being full on a republican

operative. yeah, company lobby is different than fossil fuel industry in terms of power. yeah, no, without a doubt. oh, i just want to you do you have a colleague in the democratic party who is basically you sound like a lone fighting a very difficult difficult is there anyone is there anyone beside yourself that has the passion and interest to when i've been writing these pretty my most loyal coauthors have been -- blumenthal of connecticut and mazie hirono of hawaii when i've been tangling with. fossil fuel, dark money operation, my most loyal compadres have been brian also of hawaii and martin heinrich of new mexico.

so go out and find friends. we work as small teams as best can. i've also tried to augment my effort on the house side and keep your eye. the house member named ro khanna from california, who's been terrific on all of these issues, who really gets it? and then if in trouble and i need someone to come to my rescue and like say to twitter verse, this guy's right, elizabeth, who has a huge following, has very often stepped in to say when i'm getting like troll out of control. she can counter troll very effectively and she said she's been a super she's been very loyal that's been some of the people i've to be very helpful. yeah yeah. wrap it up quickly so i'll just as kavanaugh i watched the

judiciary hearings questioning him during that i got to admit, i worried for your health during that time because i thought you were likely ready to explode several times. he went through the whole process, sitting as a justice. now. but there's been talk about him possibly having done something or some issues that might make it so that he could be impeached for something that was either either not really, you know, revealed or not brought or not investigated by the fbi. is that is that a possibility? and would that process be the same process they've brought in to impeach the president? yeah, i wouldn't hold any hope for an impeachment because it 67 votes and the republicans even more determined to, protect this majority on the court than they are to protect president trump. i've got to wrap up so i'll tell two very quick stories and everybody can go home and have fun. the first is that. the fbi behaved very curiously

during the kavanaugh, and i've been on them like a i just have not refused to let and we finally got christopher wray, the director of the fbi, to admit that they had not done a proper investigation of kavanaugh, that the quest that there had been no fbi protocol that was followed, that the investigation should have been driven, structured and directed by the political folks in the white house. and that that tip line, which was the way they let information after that weird, brief period of, we don't accept information right. the federal bureau of investigation and suddenly were immune to information. it's just very unlike them. never seen that before. in all my years. so they open the tip line and it turned out they've now admitted that the information that came through the tip line got split into that related to kavanaugh just the usual whatever it was and the stuff that and the stuff the usual went through the usual process and, the usual review, and was referred for investigation and the fbi followed it.

the procedure, the stuff that related to kavanaugh went straight into a box that was taken uninvestigated and over to the white house and given to them with the realistic prospect that that tip line sent information the white house the enable them tell the fbi who to ask questions because they knew who would give damaging testimony. so now they've admitted it. i'm still pushing so we're going to we're going to look more the funny. one is that when i was doing the amy coney barrett thing and i had the graphics up that showed all the dark money stuff we were targeting a group called the bradley foundation that had funded a lot of the briefs in that case. so the bradley foundation goes berserk. they are mad as hell. the wall street journal editorial page, which loves me to the tune of i think 35 hostile editorial, did a particularly savage one about me saying bad things about the bradley foundation, but they did not know when they wrote that that i did know that the bradley

foundation runs a fake parallel universe thing to the pulitzer prize and. it's called the bradley prize. and it may sound funny, but it's a quarter million dollar prize. it's a nice chunk of cash. and four of those had gone to people associated with the wall street journal editorial page. the little factoid that they failed to disclose when going to bat for the bradley foundation, which is not what you consider good journalistic practice. so some days are fun. thank you all for coming out and i'll go find one.