Monday, February 27, 2017

Ask Your Doctor About The Wellspring Committee (and Nominee Neil Gorsuch)

By Diane Klein

If your television viewing habits are anything like mine, you have seen, and wondered at, what appears to be a commercial for Judge Neil Gorsuch.  The 30-second spot, called "Jane," features Jane Nitze, identifed as someone who "Clerked for Judge Gorsuch" and a "Former Obama Administration Attorney."  Bathed in golden light, she speaks in reassuringly persuasive and dulcet tones about her former boss, now Trump's nominee for the Supreme Court.

Like so many other political events of the past year, this is "unpresidented."  Who is behind this ad, and what could be its purpose?  It's not as if television viewers can vote for or against Gorsuch's confirmation.  That's up to the U.S. Senate.  So what's going on?

At a glance, once you realize Gorsuch is not a "candidate," the ad is most reminiscent of those now-ubiquitous pharmaceutical ads, the ones that generally include the words "ask your doctor about...", and a rapid-fire list of often-chilling side effects.  Ads for prescription drugs touting magical (or maybe) genuine cures for ailments real and imagined ("restless leg syndrome," anyone?), direct you to your doctor because as we all well know, you can't just buy Xeljanz, Latuda, or Cialis over the counter (much less a cancer drug like Neulasta, advertised during the Presidential debates). These prescription drugs must be prescribed by a physician.  But the purpose of the ads is to send sufferers scurrying into doctors' offices demanding these drugs by name.

And it works.  Which is why, in 2014 alone, the pharmaceutical companies spent $4.5 billion on "direct to consumer" (DTC) advertising in the U.S. (and $5.2 billion the next year). To be sure, these ads are controversial.  Before 1997, they were banned in the U.S., and the EU, Canada, and much of the world continue to do so for many of the same reasons: any "educational" value for consumers is outweighed by the likelihood of deception, misinformation, and confusion, resulting from the advertisers' actual motive: selling drugs. and making money. Some argue that the cost of advertising actually contributes to the high cost of drugs.  Even the American Medical Association opposes DTC advertising, because of the way it alters the relationship between doctor and patient.  What purports to educate and inform is only intended to persuade and sell.

The concerns about the Gorsuch ad, though related, are distinct.  After all, when Pfizer advertises Viagra, there's no mystery about who is paying for the ad, or why.  It's much less obvious who paid for "Jane," or what their agenda is (other than Gorsuch's confirmation, obviously).

If Jane Nitze were hawking legal pads or Legal Zoom, the Federal Trade Commission would regulate the advertisement. When it comes to product and service endorsements, the FTC rules first state that "An advertiser may use an endorsement of an expert or celebrity only so long as it has good reason to believe that the endorser continues to subscribe to the views presented."  That's no problem - there is no reason to think Nitze will change her mind about her former boss.  But the FTC also demands, in 16 C.F.R. Section 255.5, that "When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed."

We know the connection between Jane Nitze and Neil Gorsuch.  But what is the connection, if any, between either of them and the people who funded this ad? We have no idea.

Jane Nitze's credentials are as solid-gold as Trump's toilet fixtures (we imagine), if not more so.  She earned a physics and statistics degree at Harvard College, and then a law degree from Harvard Law School, where (like Barack Obama) she served on the Law Review.  In fact, her liberal establishmentarian cred is even better than advertised - after clerking for Gorsuch at the Tenth Circuit, she was a Supreme Court clerk, to Justice Sonia Sotomayor, who officiated at the former Jane Kucera's 2013 wedding to Paul Kendall Nitze, son of a former assistant administrator of the EPA (under Clinton), and grandson of Paul H. Nitze, a secretary of the Navy and founder of the School of Advanced International Studies at Johns Hopkins.  Jane then went to the Office of Legal Counsel at the Obama DOJ (as advertised), and is now a Climenko Fellow and Lecturer at the Harvard Law School.

Most of this can be learned from her CV and her New York Times wedding announcement. But it's much harder to find out about the folks behind the TV commercial.  Because political advertisements are not regulated by the FTC, it takes a little more digging to figure out who put this on the air.  As the ad ends, the words "ConfirmGorsuch.com" appear in bold black letters, while nearly-illegibly at the bottom of the screen, it says "Paid For By Judicial Crisis Network" (which also holds the copyright on the webpage ConfirmGorsuch.com).

The Judicial Crisis Network (JCN), a 501(c)(4) entity, was founded in 2005 as the "Judicial Confirmation Network."  Back then, its goal was to support Bush's nominees (now Justices Roberts and Alito).  Over time, funded by the Koch Brothers, it morphed into an entity dedicated to blocking Merrick Garland's nomination, spending millions in that effort, but not before becoming deeply involved in judicial races all over the country.  JCN's money mostly comes from the Wellspring Committee, also a 501(c)(4) "dark money" operation, that is not required to disclose its donors, and can spend effectively without limits.  Secretive but influential right-wing activists Ann Corkery and Robin Arkley are central figures, as are Corkery's family members. The funders of the Wellspring Committee take full advantage of the tax laws, and consider their judicial spending - $10 million for Gorsuch, more than $2 million of which is for the televison ad buy - nonpolitical "social welfare" spending (as is required for entities of that type).

Though it is far from clear, the real purpose of "Jane" seems to be not so much to induce action - but rather, inaction.  It says to the liberal, middle-aged viewer, the Obama voter, the woman, the Hillary voter (do you imagine a female former Gorsuch clerk was chosen by accident?), that there's nothing to worry about with Gorsuch.  It's not so much "ask your doctor about Viagra," as it is, "Don't bother writing to your Senator about Gorsuch."  Like all political tactics designed to reduce participation in the new Trump Era, that should give us pause.  It's not so much the drug, as it is the side effects.

Does Jane Nitze know, or care, who paid to produce the advertisement in which she appears, and to put it on the air?  Or about the other causes in which they have been involved?  Does she believe that the way the Merrick Garland nomination was handled, and JCN's role in that, was proper?  We don't know.  Had she chosen to write an opinion piece in support of Gorsuch, she would have joined a wide-ranging coalition of scholars, lawyers, and Court-watchers who similarly endorse him.  This television ad feels different.  Given JCN's history, as a lawyer, a law professor, and a fellow Harvard College alum, I don't much like Nitze in the role of Tom Hagen to Gorsuch's Johnny Fontane.