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Shining Light on Dark Money is Good for Democracy

Public Citizen News / September-October 2023

By Senator Sheldon Whitehouse

This article appeared in the September/October 2023 edition of Public Citizen News. Download the full edition here.

I have concluded, based on considerable observation and evaluation, that a band of right-wing billionaires has its hooks deep into our government.  It uses these hooks to thwart climate action, putting American and global safety at risk.  The good news?  We can fix the climate threats if we can get their hooks out.

When I got to the Senate in 2007, climate change was a bipartisan issue.  There were serious bipartisan climate bills in the Senate.  Republican John McCain was running for President on a significant climate platform.  All that progress and bipartisanship was also noticed by fossil fuel companies.  Industry groups then prevailed on the Supreme Court to overthrow decades of precedent and allow unlimited corporate political spending.  The 5-4 Citizens United decision, in January of 2010, gave the industry the weaponry to kill climate bipartisanship.  Republicans quickly caved on climate — and were rewarded with massive, secret money from oil and gas behemoths.

Citizens United’s upheaval of politics and elections remains profound.  501(c)(4) organizations became fountains of dark political money.  Armadas of dark-money front groups were created or co-opted to obscure the hand of the fossil fuel industry.  New political creatures like Super PACs proliferated. A Public Citizen study found that “just 25 ultra wealthy donors made up nearly half (47%) of all individual contributions to Super PACs between 2010 and 2018.”  Negative advertising surged — a “tsunami of slime.”  And behind the billions in secret political spending came the hidden threats and promises that big special interests can make when they have the power to secretly spend billions.  Their reward: from January of 2010 to now, no Senate Republican has supported a serious climate bill.

The fossil fuel industry climate blockade operation ran in parallel with a longstanding dark-money plan to capture the Supreme Court.  The waypoints of this Court-capture effort were the infamous Lewis Powell memo laying out the Court-capture strategy (written for the U.S. Chamber of Commerce immediately before Powell’s appointment to the Court); the bipartisan Senate rejection of nominee Robert Bork (engendering burning far-right fury); the subsequent revenge of the right, blocking Bush nominee Harriet Miers to open the door for billionaire-friendly Justice Sam Alito; Mitch McConnell’s Senate stiff-arm to Obama nominee Judge Merrick Garland; and then whatever deal Trump cut with the Koch political organization around his so-called “Federalist Society list” of proposed Court appointees.  Citizens United was the crowning achievement of this Court-capture effort: fossil fuel billionaires could now protect in Congress fossil fuel’s $660 billion annual U.S. subsidy.

With that big a prize at stake, there was no restraint.  Existing far-right front groups were repurposed and repowered.  Stables of fossil-fuel stooges were funded to parrot phony science.  Pop-up front groups appeared in election after election to give a fake local “feel” to the fossil fuel campaign.  The U.S. Chamber of Commerce took undisclosed masses of dark money and became a “worst climate obstructor.”  The climate denial campaign is the biggest and best-hidden in American history, and it has been fiendishly effective.  I could make a case that its malice has added 70 parts per million to our atmospheric CO2 count, dramatically accelerating climate catastrophe, just to enlarge massive industry profits.

The climate denial schemers continue their dirty work.  Like a retreating army, they abandoned the most indefensible falsehoods (“climate is a hoax”) for less flagrant ones (“climate is real but it will break the economy to fix it”).  But the game is the same.  They still oppose serious climate legislation like the Inflation Reduction Act climate measures.  They still oppose climate control regulations, filing hostile comments and lawsuits.  And they still use commanding influence over the Supreme Court to degrade the Clean Air Act and Clean Water Act and to weaken regulatory oversight.  Justice Alito has even asserted that carbon dioxide is not a pollutant.

The worst actors, obviously, are fossil fuel companies and their front groups.  But virtually all of corporate America is useless or lined up against climate protection legislation.  Corporate political clout works through political intermediaries like industry trade associations.  Corporate CEOs issue frothy climate statements and pledges; chief sustainability officers work on lowering carbon footprints; green programs get featured in glossy shareholder brochures; and then the trade associations come to Congress with the real message.  The U.S. Chamber of Commerce and the National Association of Manufacturers are the two “worst climate obstructors” in America; others at best offer deafening silence.  The effect is lethal.

To fix this, we need to peel back the secrecy.  This will not be easy, because a Supreme Court built by dark money is busily constructing a constitutional right to dark money, so any effort at disclosure would be tangled in years of litigation.  But voluntary gatherings like the United Nations Conference of the Parties, or the elite corporate gathering at Davos, can require disclosure by corporations seeking to participate.  So could environmental groups and universities that work with corporations.  So could the White House, for high-level meetings sought by corporate interests.

Audited corporate climate political disclosure statements should be required.  Here’s what they should have to report:  one, campaign contributions, which are already disclosed, so you’d weight them to a ranking of the recipient on climate issues; two, lobbying, also already disclosed by topic, so you’d assess whether climate-related lobbying is pro or con; three, all funding of trade associations, ranked by climate opposition (hint: Chamber = toxic); and most important, dark-money “outside” spending into 501(c)(4)s, Super PACs and other political weaponry — all the way through, piercing shell corporations, Cypriot bank accounts, Cayman Islands law firms, or Dakota trusts.

No trickery, honest full reporting, signed by the CEO and CSO.  These revelations will cause massive embarrassment in C-suites and boardrooms across the country as shareholders and customers learn about companies’ real climate posture.  But we’d get the climate disaster solved far more quickly as a result.

Is it un-American to require this?  Precisely the opposite.  We are a democracy.  The essential foundation of a democracy is a well-informed citizenry.  Providing citizens the basic understanding of who’s doing what in the political arena may be bad for the bad actors, but it’s good for citizens and good for democracy, and that’s good for America.

Senator Whitehouse serves as Chairman of the Senate Budget Committee and as a member of the Senate Judiciary Committee, the Senate Finance Committee, and the Senate Environment and Public Works Committee.  A graduate of Yale University and the University of Virginia School of Law, Whitehouse served as Rhode Island’s U.S. Attorney and state attorney general before being elected to the Senate.  His most recent book, The Scheme, explores the secretive right-wing operation to capture the United States Supreme Court.