The Supreme Court’s Extremists Continue to Attack Good Governance

Safeguards against corruption and structures that support high-quality government decisions based on the merits apparently aren't needed. Why?

By Sheldon Whitehouse

The attack of the extremist wing of the Supreme Court on the U.S. Congress continues. Its latest chapter rejects decades-old precedent to prevent Congress from establishing independent agencies with tenure protection against corruption. The attack expands the pro-corruption decisions of this extremist wing.

Congress (like every state) has made the sensible determination that some government decisions should be made by expert panels protected from direct political interference. Expert agencies (often called “quasi-independent”) decide securities issues, interstate electric rates, federal communications licenses, airplane safety requirements, and myriad other highly technical things. Getting these highly technical things right helps make the modern world go around. Protection from removal without cause, staggered terms, and bipartisanship each help protect the public from the corrupt exercise of direct executive political control.

Photo by Adam Michael Szuscik on Unsplash

Congress knew enough to retain multiple layers of accountability for these agencies. Congress conducts oversight, reviews rulemakings, directs funding, and even determines whether an agency continues to exist. The president chooses whom to appoint, subject to Senate confirmation, and proposes agency budgets. Courts review agency actions to ensure they’re reasonable and follow appropriate administrative procedures. For more than a hundred years, these measures have worked together to keep agencies honest and effective.

The extremist wing on the Supreme Court apparently knows better. Every government, federal and state, is wrong. Safeguards against corruption and structures that support high-quality government decisions based on the merits aren’t needed. Decades of previous justices all also wrong. Why?

For years, a few regulated interests have chafed at regulation; none more than the heavily polluting fossil fuel industry. Fossil fuel dark money corrupts the legislative and executive branches. Fossil fuel billionaires captured the Supreme Court years ago. At the same time, they built a propaganda narrative about an “administrative state” populated by “unaccountable bureaucrats.” They pollute for free, a subsidy for fossil fuel to the tune of $700 billion per year. That’s a mighty big motive to attack federal expertise around air pollution and climate safety. The court’s extremists took the hint.

Now polluters and corporate criminals have the ability to bribe their way into the Oval Office (Offal Office these days, more like); sweep from agencies the experts, the professionals, the independents, the Democrats, anyone not willing to bend the knee; and presto-change-o get from a corrupt president the pro-polluter policies they want. Protecting against this scenario is why Congress for so many decades maintained this longstanding, corruption-resistant model of agency governance.

But it seems six extremists know better: better than decades of Congresses; better than generations of justices; better than all the 50 states who follow the sensible corruption-resistant agency model.

Ignored in the cooked-up polluter narrative is how good rigorous and honest regulation has been for the economy and for progress. Workplace illnesses and deaths, lead poisoning in children, deaths from foodborne illnesses—all reduced, even practically wiped out, thanks to commonsense regulations. Americans are safer than their parents or grandparents when they travel on highways or in airplanes, when they take a new medication, when they drink tap water, or when they invest in a retirement account. Congress helped make all of this happen by giving independent, expert regulators the authority and leeway to tackle complex problems. This agency model has been a boon for America — now destroyed to make recalcitrant polluters happy.

A court assembled by billionaire polluters wants to destroy institutions that subject its patrons to rigorous, honest oversight. But those patrons also want a stable economy for their business interests. Sure enough, the billionaire-funded extremists exempted from their new constitutional rule of destruction one quasi-independent agency: the Federal Reserve. The one the creepy billionaires want to keep independent. The mad arrogance of six extremists suddenly deciding that an organizational structure used by the federal government and every state government for decades now must go, even after it has ushered in decades of enormous prosperity and security, is matched by their abject subservience in carving out the one exception the creepy billionaires want. It’s almost like they’re doing what they’re told.

The pattern of decisions serving the political and economic forces that have captured this court is plain. It’s time for major reform.

Sheldon Whitehouse, a Democrat, represents Rhode Island in the U.S. Senate.

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