It turned out that Kavanaugh had not talked to anyone at Kasowitz, Benson & Torres, and Harris never offered any evidence of such a conversation. The White House had set up a war room down the hall from the hearing room, manned by Kavanaugh’s team, where they quickly determined that Harris must have been fishing for conversations with Edward McNally, a partner in the firm’s New York office who had worked in the Bush White House when Kavanaugh did. They tracked him down and confirmed that Kavanaugh had not spoken to him about the Mueller investigation. The law firm itself denied that any of its personnel had spoken to Kavanaugh, and the judge then testified under oath that the answer to Senator Harris’s question was a straightforward “no.”
Senator Whitehouse had an ax to grind against “shadowy dark-money front groups” participating in the judicial appointment process. “Here’s how the game works,” he said in his opening statement. “Big business and partisan groups fund the Federalist Society, which picked Gorsuch and now you.”
He went on:
Then big business and partisan groups fund the Judicial Crisis Network, which runs dark-money political campaigns to influence senators in confirmation votes, as they’ve done for Gorsuch and now for you. Who pays millions of dollars for that and what their expectations are is a deep, dark secret. These groups also fund Republican election campaigns with dark money and keep the identity of donors a deep, dark secret. And of course, 90 percent of your documents are, to us, a deep, dark secret.
Behind him his aides hoisted a sign stating that JCN had spent $17 million in connection with the Garland and Gorsuch nominations.38
Whitehouse’s horror at the Federalist Society had arisen suddenly. Like every sitting justice of the Supreme Court, he himself had spoken at an event hosted by the Federalist Society.39 His outrage over “dark money”—a pejorative term for donations made according to section 501(c)(4) of the Internal Revenue Code, which does not require an organization to disclose the identity of its donors—was similarly selective. The League of Conservation Voters, a 501(c)(4) organization and “dark money heavyweight,” according to the Center for Public Integrity, used its PAC to endorse Whitehouse and was his single largest donor.40
Senator Whitehouse told only half the story. In an article in Politico in January 2019, “Why There’s No Liberal Federalist Society,” the law professor Evan Mandery bemoaned how sophisticated the conservative legal network has become. He is correct that the Federalist Society dwarfs its closest liberal counterpart, the American Constitution Society (ACS), in both breadth and effectiveness, but he incorrectly assumes that the right is therefore Goliath to the left’s David. Quoting the ACS’s president, Caroline Frederickson, on the Supreme Court decision Bush v Gore, which shocked liberals into starting the ACS, Mandery unwittingly acknowledges the left’s long-standing dominance in the courts: “ ‘Courts that the left had taken for granted since [Chief Justice Earl] Warren had handed the presidency to Bush.’ ” He also admits that the American legal education system acts as a “counterweight” to the Federalist Society: “There’s no question that law school faculties are overwhelmingly liberal. . . .”41
The progressive journal Mother Jones has recognized as much, describing the interconnected web of liberal groups from the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) to the Sierra Club and the League of Women Voters42 as a “vast, well-funded movement that’s far older and far more influential than the Federalist Society. Its only problem is that it doesn’t have a name.”43
In the battle over Kavanaugh’s confirmation, the most visible liberal organization was Demand Justice, formed only a few months before Kennedy’s retirement by veteran Democratic operatives with experience in the Hillary Clinton campaign and the Obama administration. If money given to the Judicial Crisis Network is “dark” because JCN’s annual 990 tax filings don’t disclose its donors, Demand Justice’s bank account is a black hole. “Fiscally sponsored” by the Sixteen Thirty Fund, an under-the-radar liberal intermediary group that passes money from donors to dozens of liberal organizations, Demand Justice doesn’t even file the disclosure forms that “dark money” groups do. Senator Whitehouse couldn’t put it on one of his pie charts if he tried. Both the donors to Demand Justice and the amount of money they contribute are completely invisible.44
The Sixteen Thirty Fund does file an annual Form 990, but it does not reveal the identities of its donors. Although its budget dwarfs that of the Judicial Crisis Network and the Federalist Society combined, it has failed to pique Senator Whitehouse’s interest. In 2017 it brought in $79 million and ended the year with $43 million in assets, growing by an astonishing 1,547 percent in only eight years.45 In pursuit of its cryptically worded mission—“promoting social welfare, including, but not limited to, providing public education on and conducting advocacy regarding key policies”—the fund bankrolls liberal groups focused on everything from judicial appointments, organized labor, and abortion to Senator Whitehouse’s own favorite dark-money heavyweight, the League of Conservation Voters. They also fund Majority Forward, a 501(c)(4) group closely tied to Senator Chuck Schumer’s Senate Majority PAC. Majority Forward alone accounted for one-third of all the dark-money spending in the 2018 election, giving liberals a comfortable dark-money lead over conservatives.46
The Sixteen Thirty Fund is managed by Arabella Advisors, a philanthropy consulting firm in Washington, D.C., that works with high-dollar liberal donors and nonprofits. Arabella manages four nonprofits, including the Sixteen Thirty Fund, reporting total revenues of $1.6 billion and expenditures of a whopping $1.1 billion since 2013.47 Arabella was founded and is still run by Eric Kessler, who worked on conservation issues in the Clinton White House and was, coincidentally, the national field director for the League of Conservation Voters.
If Senator Whitehouse had been interested in teasing out the many interconnected threads of that dark-money web, he would have learned that Kessler is also the president of the Sixteen Thirty Fund and the chairman of the board of the New Venture Fund, its sister group in the Arabella orbit, which has sponsored more than two hundred projects and reports an annual revenue of $358 million. These entities are linked to a dizzying array of anti-Kavanaugh organizations, including the Sierra Club, the Leadership Conference on Civil and Human Rights, the Center for American Progress, Color of Change, Health Care for America Now, Health Care Voter, and the NAACP.48 The Center for Popular Democracy, one of the groups promoting the protests in the Dirksen halls during the hearings, received substantial funding from the New Venture Fund.49
Political and special interest groups have every right to protect the anonymity of their donors, of course. Indeed, there are strong arguments—some of them made by those sitting on the Supreme Court in recent years—that the First Amendment limits the ability of the government to force their disclosure. But Senator Whitehouse’s pursuit of a vendetta against conservative nonprofits while ignoring the considerably more opaque funding streams of organizations on his side reveals his true interest. He did not advance the cause of transparency per se, but used the disclosure of donors as a weapon against his political opponents.50