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.

17 comments:

David Ricardo said...

Great post, thanks for illuminating an issue many of us had put on the back burner as we were past our saturation point on political advertising.

And we wonder how Jane will feel when Judge Gorsuch is the deciding vote to end abortion rights, to eliminate any and all controls on political advertising and spending, to deny transgender individuals any protection under the law, to allow any company to pollute at will, etc, etc, etc. Of course maybe she was never what she appeared to be, and is really a sheep in Ivanka Trump's clothing line.

Joe said...

Concurring Opinions had a post about Gorsuch's clerks and I noticed the Sotomayor connection & found the NYT wedding announcement. And now this!

Thanks for the discussion. It is a troubling precedent, I think, different from let's say Gregory Peck's ad against Bork. DR's reference to abortion reminds me of this:

https://en.wikipedia.org/wiki/Jane_Collective

And, yes, full disclosure is important. Without comment, the Supreme Court just today summarily confirmed a lower court opinion upholding a disclosure regulation. Even in the post-Citizens United world, there's that. And, Chief Justice Roberts wrote an opinion not too long ago upholding special concern for judges.

I wonder how Justice Sotomayor feels about this.

Shag from Brookline said...

As a child of the '30s, '40s movie-goer, this ad reminded me of the serialized Tarzan movies, picturing the scene where Tarzan thumps his chest, saying "Me Tarzan," then thumping his significant other's chest, "You Jane." So I picture the invisible "Tarzan" in the ad as Judge Gorsuch. Query: Is Jane's endorsement of Gorsuch a backdoor knock on Justice Sotomayor? And while the post doesn't focus on foreign policy, might it be appropriate with Trump as President to look back at Paul Nitze's contributions to foreign policy post WW II since Trump nominated Gorsuch?

By the way, the commentary on drug ads is appreciated. Does one ask one's doctor with a telephone or email conversation? Or will the doctor respond only if paid? While the drug ad as required informs the viewer of side effect, it is usually accomplished via a lilting voice with a peppy musical beat background that seniors have been versed in. And what seniors don't have double bathtubs on the beach? Back in '54 when I began my law practice, the FTC had some bite.

Joe said...

Back in Shag's day, we had doctors cited in ads praising the medical value of cigarettes.

Shag from Brookline said...

I remember Old Gold ads: "Not a cough in a carload." back in the late '30s, early '40s. On radio, reference would be made to a doctor saying this, the public assumption being that the speaker was a medical doctor and not a PhD. Back in those days, the popular "Hit Parade" was sponsored by a cigarette maker, I think it was Lucky Strike brand. How patriotic it was when Lucky Strike green had "gone to war" with WW II. The FDA was proscribed from addressing the drug effects of smoking tobacco.

David Ricardo said...

If the Nitze ad is comparable to ads for prescription drugs maybe they should include a similar disclaimer, like

"Call your Senator to support Judge Gorsuch. Side effects include loss of voting rights if you are black or Hispanic, unlimited anonymous campaign contributions, itchy watery eyes from increased air pollution, jail time if you are a member of the LGBT Community, loss of health insurance or Medicaid, death from your neighbor's concealed AK 47, lead in your water if your town has a large minority population, a slow and agonizing death because physician assisted suicide in Unconstitutional and long term decline in decency and democracy."

The above is not meant to detract from the seriousness of the original post, which illustrates a very important point with respect to 501(c)(4) organizations.

Shag from Brookline said...

David, it doesn't detract But keep in mind that a physician, unlike a Senator, is obliged to "First, do no harm."

Joseph Simmons said...

It seems the proper response to speech one doesn't like is more speech, like this blog post.

Primed by Prof Segall's post which referenced Citizen United, I am reminded of that case here.

It comes to mind most acutely at the end: "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."

I don't think it should make a difference; but maybe Professor Michael McConnell's article in the Yale Law Review, "Reconsidering Citizens United as a Press Clause Case," provides the "analytical clarity," as he describes it, by viewing the matter as a freedom of press. (I think McConnell oversells the advantages of his approach but I am persuaded it is more accurate and clarifying.)

Joe said...

"It seems the proper response to speech one doesn't like is more speech, like this blog post."

Full disclosure is a concern of the blog post, which I'm sure is seen by tens of people. Compare the number who see a t.v. ad.

The difference between a quick ad and a more substantive opinion piece a difference beyond likely audience numbers too. Advertising and articles have differences.

Anyway, I think a documentary like the one at issue in "Citizens United" is different from a quick ad shown on MSNBC, especially if the documentary is video on demand. But, there is overlap of some nature.

CJColucci said...

Thanks for this. I was curious about the ad myself. And, by the way, how am I supposed to tell me doctor if I have been to places where certain fungal infections are common? I don't know much of anything about fungal infections, let alone where they are common.

Joseph Simmons said...

Anonymous speech/press has been recognized as protected by the First Amendment. I see nothing to indicate why this ad would not merit such protection. I also don't see a constitutional difference between a 30 second ad and a "more substantive opinion piece." Whether the Federalist Papers, one page advocacy of a candidate/issue, 30 second video advocacy, 1.5 hour video advocacy, or website, the different method of publication shouldn't change the constitutional analysis. Excluding some political speech (like this Gorsuch commercial) from the same protection as other speech by terming it an "advertisement" doesn't seem defensible.

Diane Klein said...

Joseph Simmons - yes, anonymous speech has been recognized as protected - but NOT speech advocating for a candidate, which is a little more complicated (remember those, "I'm so-and-so, and I approved this message" statements?). Here, Gorsuch is not a "candidate" (and so his approval isn't required), and we are also dealing with the Russian-doll situation of 501(c)(4)'s inside other 501(c)(4)'s, etc.

Shag from Brookline said...

Joseph may be running a close second to President Trump who recently said this:

“I love the First Amendment. Nobody loves it better than me. I mean, who uses it more than I do? But the First Amendment gives all of us…the right to speak our minds freely. It gives you the right and me the right to criticize fake news and criticize it strongly.”

Joseph Simmons said...

Prof Klein, I appreciate the response. You're right of course that speech advocating a political candidate can be more complicated, though it's hardly a categorical exception. Even if Gorsuch were a "candidate," since this commercial was not issued by him, his stamp of approval would not be needed. The objection to the 501(c)(4) matryoshka appears to be an objection to anonymous speech, or at least one method of exercising it. There may be a constitutionally defensible way of requiring identification of those behind 501(c)(4)'s, but at the end of the day there is a right to anonymous speech. Jane Nitze clearly chose not to speak anonymously and your questions can be put to her.

As for the ad's purpose to urge inaction - or that everything is copacetic - I appreciate your objection as persuasion itself. It shouldn't make a legal difference to requiring disclosure but I appreciate it.

I'm not sure why Shag would not rather quote Brandeis, with whom he is better acquainted.

Shag from Brookline said...

I'm alright with sunlight as disinfectant, transparency, per Brandeis, and very appreciative of his efforts towards a right of privacy. But are lies and misinformation disinfectants or transparencies other than revealing the transparency regarding the speaker of such? Unfortunately exposing such lies and misinformation may have less effect. And Trump could lie on Fifth Avenue and his base would still believe him. By the way, I particularly like that Brandeis got Holmes to shift views on speech.

Joe said...
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Joe said...

My namesake's opinion is duly noted but as noted by the professor, when dealing with case law, Citizens United upheld disclosure rules in certain contexts. Gorsuch not being a "candidate" adds complexity but realistically he is a candidate. That is, if we are thinking of this in a big picture sort of way, moving past the requirements of a certain statute or whatnot.

The concern furthermore is who funded the ad and so forth. This is often not fully clear, especially when the average person doesn't spend time researching the quick disclosure that is present in such things.

Finally, even if protected, as a matter of prudence, disclosure is important and blog posts like this ("more speech") is of limited value v. let's say the papers themselves etc. like providing information as to op-ed writers etc. if there are institutional connections etc. that would be important to know.