Sen. Sheldon Whitehouse (D., R.I.) is urging Democrats to unmask GOP donors through a wide-ranging investigation into the conservative legal movement if they take control of the Senate after Tuesday's election.
Legal conservatives are digging in for the fight, connecting his proposals with an ugly history of attacks on anonymous political activity and warning that such probes would trigger an in-kind response from the GOP. Nor is their concern idle speculation, as the Rhode Island Democrat's name was previously floated to lead the Democrats on the Senate Judiciary Committee during Justice Amy Coney Barrett's nomination hearings.
Recent Stories in The Courts
"If we do get to control committees in the Senate and we have the ability to do real investigations instead of all the covering up that the Republican committees have done, then I think we need to start asking questions, like who wrote a $17 million check to pay for the ad campaigns that helped get Brett Kavanaugh onto the Supreme Court," Whitehouse said during an Oct. 26 interview on MSNBC.
Such an attack puts left-wing groups at considerable risk. A 2018 watchdog report found that progressive groups have eclipsed conservatives in the dark money arms race, a trend that continues apace in the 2020 campaign. Whitehouse critics are quick to seize on this point, noting that anonymous giving has powered a wide range of political movements. In the long term, his tactics could chill giving around climate-change activism or LGBT rights, they say.
"Sheldon Whitehouse is the new Joseph McCarthy, on a warpath to threaten and silence everyone he disagrees with," said Carrie Severino of the Judicial Crisis Network, an advocacy group Whitehouse regularly targets. "If Senator Whitehouse had served during the civil-rights movement, he probably would have forced the NAACP to disclose its donors."
A lawyer with expertise in congressional investigations told the Washington Free Beacon that Whitehouse's quest would trigger legal scrutiny.
"A federal court would likely have serious concerns about the chilling effect on free political association of a congressional subpoena relating to political activity," the lawyer said. "Historically congressional committees have been extremely reluctant to conduct inquiries into the political or lobbying activities of any private group. And they have been especially reticent about investigating the donors to advocacy organizations because of the grave First Amendment concerns that would be associated with any such inquiry."
The general direction of Whitehouse's proposed investigation is clear. The senator laid out a road map for a future probe of conservative legal groups in a sprawling 50-page report published in May, honing in on dark money groups such as the Wellspring Committee and the Freedom and Opportunity Fund, among others. Those groups, whose donors cannot be identified through open sources, funneled money to public-facing groups like JCN or Independent Women's Voice, both of which have spent millions messaging and organizing in support of President Donald Trump's judicial nominees. Financial supporters of those and similar groups would be the top targets of the inquiry.
How the Judiciary Committee might get at that information is less clear. With control of the Senate, Whitehouse and committee Democrats would be able to compel document production and testimony with the subpoena power. Subpoenas would surely provoke a long legal struggle, however, with an uncertain outcome.
Legal conservatives say their financial arrangements are hardly unique by historical standards.
"There is a rich history of anonymous speech in this country, and it has benefited causes across the political spectrum," said a conservative lawyer who has studied the history of anonymous political activity in the United States. "The abolitionist movement, the civil-rights movement, and the more recent movements for environmentalism and LGBT rights would have all been harmed by the kind of assault on donor privacy that Senator Whitehouse is threatening."
For example, a watershed Supreme Court case on the freedom of association emerged during the civil-rights era, after state officials in Alabama tried to compel disclosure of the NAACP's records, including rosters of members and supporters.
"It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an effective] restraint on freedom of association," the Court's decision in NAACP v. Alabama reads.
Whitehouse himself has substantial ties to dark money groups. The Rhode Island Democrat has accrued almost $200,000 in campaign contributions from the League of Conservation Voters since 2005, one of the 10 largest dark money groups in terms of spending during the 2016 election cycle. The league did not return requests for comment for this story.
Other big left-wing spenders such as Priorities USA and Arabella Advisors depend on donor anonymity to pump tens of millions of dollars into political and advocacy campaigns. Arabella sits atop a multilayered chain that runs a left-wing judicial group called Demand Justice, whose goal is to reach parity with conservative activity around judicial nominations. Priorities has spent almost $100 million over the current election cycle.
The right's legal establishment is a longtime hobby horse of the Rhode Island Democrat, who has accused an array of attorneys, cause-lawyering outfits, and advocacy groups of playing an elaborate long game to seize control of the federal judiciary and deliver victories for monied Republican interests.
Whitehouse did not respond to a request for comment.