Whitehouse’s Blacklist: Why Does Senator Whitehouse Keep Lying About Neomi Rao?

Either Senator Whitehouse or one of his predecessors.

Senator Sheldon Whitehouse keeps launching false attacks on Judge Neomi Rao and the academic research center that she founded. It’s tiresome, and it’s beneath the dignity of the Senate, but it’s also a dangerous threat to democratic discourse and academic inquiry.

But now that it’s clear that Senator Whitehouse will continue his vendetta against her and against the Center even after her confirmation to the federal bench, I’m going to spell out in detail why Whitehouse is wrong, and why his aggressive political vendetta directly threatens the vibrant, diverse, and independent academic discussions that the Center for the Study of the Administrative State convenes and supports.

Last week, in the middle of his latest McCarthyite attack on the Federalist Society, Senator Whitehouse re-launched a similar attack on a federal judge: Neomi Rao, whom the Senate recently confirmed to the U.S. Court of Appeals for the D.C. Circuit. Whitehouse conjured conspiracy theories about Rao and the academic research center that she founded, the Center for the Study of the Administrative State at the George Mason University’s Antonin Scalia Law School.

I now run that Center. The law school hired me two years ago, when President Trump appointed then-Professor Rao to administer the White House’s Office of Information and Regulatory Affairs. I’m proud of the Center and the work that we do, supporting and convening legal scholars from all perspectives to discuss and write about questions of law and policy that arise in our modern administrative state.

And so, I took notice of not just Whitehouse’s personal attack on Judge Rao, but also his attack on the Center that I inherited from her. We should all be concerned whenever a government official singles out someone for personal attack—especially an attack as inaccurate as Whitehouse’s.

Let me begin by describing what the Center actually is and what it actually does; then I’ll recount Senator Whitehouse’s conspiracy theory. Then I’ll explain why his conspiracy theory is factually inaccurate (which already has been explained to him at least once before), and finally I’ll explain why his conspiracy theory is so dangerous to the kinds of civil discourse that we need more today than ever.

1. What “The Center for the Study of the Administrative State” Does

So far we have incubated more than sixty law review articles. We post them as “working papers” on our web site once we get to the eventual public policy conference for a given topic. (Thus, the papers we’ve workshopped this spring will appear online in the fall.)

In addition to those research roundtables and public policy conferences, we co-host an annual symposium with the George Mason Law Review, we host other conferences in Virginia or DC (such as last week’s conference on “Political Polarization and the Administrative State”), and we host events for law students. We videotape our events and post them online, in case anyone wants to watch them.

If Senator Whitehouse wanted to see the work that we do, he could have read our papers and watched our events. Or even just skimmed our web site. But instead he decided to just mischaracterize the Center’s work and attack its founder.

2. Whitehouse’s False Attack on Judge Rao and the Center

The Senate just confirmed Neomi Rao to the D.C. Circuit Court of Appeals. Rao comes right out of the deep bog of special interest dark money …

Rao also founded the so-called Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, which is devoted to conjuring ways to roll back as many regulations affecting these corporations as possible, and is funded by these same secretive groups.

I asked Ms. Rao about the funders of her center at the Scalia Law School. She claimed in her answers, and by the way I will add that these were questions for the record, written questions that she had time to consider, review and respond to. This was not a surprise attack of an unprepared witness at a hearing. She had weeks to answer. She claimed in her answers that, “to the best of her knowledge,” her organization had not received any money from the Federalist Society, from Koch family foundations, or from anonymous funders.

Well, that was simply not true. A Virginia open records request revealed that an anonymous donor and the Charles Koch Foundation donated $30 million earmarked specially for her organization. Guess whose interests she’s has been conveyed on to the D.C. Court of Appeals to protect?

I’ll be blunt: Whitehouse’s entire conspiracy theory is wrong. I don’t know whether his wrongness reflects either ignorance or malice—maybe both—but in any event, his conspiracy theory about Neomi Rao and the Center that she founded is utterly wrong.

3. The Facts: The Center for the Study of the Administrative State Has Never Received Money from the Koch Foundation or the Federalist Society

In his questions to her, Whitehouse inaccurately asserted that Judge Rao founded the Center for the Study of the Administrative State with the funds that were donated to George Mason University’s law school in 2016, by the Koch Foundation and an anonymous donor, in conjunction with the school’s renaming as the Antonin Scalia Law School.

Rao’s answer was straightforward: the Center was not founded with funds from the Koch Foundation and the anonymous 2016 donor to the law school. First of all, the Center was founded in 2015, the year before the Koch Foundation and anonymous donor made their generous gifts to the law school. And second, the Center for the Study of the Administrative State has never received any funding from the Koch Foundation, or from the law school’s generous 2016 anonymous benefactor, or from the Federalist Society. Whitehouse’s assertions were wrong; Rao’s answers were right.

I’ll stress from the outset, there is nothing wrong with a research program like the Center receiving foundation funds from the Koch Foundation or any similar philanthropic foundation or benefactor, so long as financial support does not compromise the research program’s academic independence. Whitehouse’s conspiracy theory seems to be twofold: that Neomi was wrong when she disclaimed these particular funders (she’s not wrong), and that the Center’s work is dictated by those who have donated money to it (it’s not).

Whitehouse’s twofold conspiracy theory is doubly wrong. Neomi told the truth, and the Center’s work is independent, diverse scholarship.

From its founding, the Center’s operations have been supported in full by a variety of generous foundations and private donors (including grassroots donations in amounts of hundreds of dollars or less from local lawyers and policy wonks interested in our work). We are so grateful for the support that has made our work possible.

As Rao noted in one of her written answers, Whitehouse’s persistently wrong assertions seem to parrot press coverage of the Koch Foundation’s and anonymous donor’s combined $30 million donation in 2016. Those press accounts, in turn, drew the wrong conclusions from university documents released under the Virginia Freedom of Information Act.

As the FOIA’d documents show, the school earmarked all $30 million for student scholarships. The documents further show that school officials noted the possibility that the school might increase support for research programs like the Center for the Study of the Administrative State. (See, e.g., pp. 285–286 of this big PDF file from the FOIA results.)

But that hypothetical possibility never came to pass because, in actual reality, the Center succeeded in fully funding itself through the support of other foundations and private donors, which is why Judge Rao repeatedly stated during her confirmation process that the Center never received funding from the Koch Foundation or the anonymous donor.

The real question, then, is why does Senator Whitehouse keep falsely attacking Judge Rao, even after she explained to him why he was wrong?

4. “The Paranoid Style in American Politics”—Then and Now

But Whitehouse’s approach—conjuring up conspiracy theories about omnipotent and perceived political enemies—has still deeper roots. It exemplifies what mid-20th century scholar Richard Hofstadter famously identified as “The Paranoid Style in American Politics.” As Hofstadter observed, in the opening pages of his classic 1965 book on the “uncommonly angry minds” that attempt to swamp democratic discourse in waves of conspiracy theories aimed at a particular political target:

Behind such movements there is a style of mind, not always right-wing in its affiliations, that has a long and varied history. I call it the paranoid style simply because no other word adequately evokes the qualities of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind.

Hofstadter was writing then about Senator Joe McCarthy but, as he stressed even then, the “paranoid mind” is not exclusively a right-wing phenomenon. In our own time, paranoid minds like Whitehouse’s do precisely what Hofstadter highlighted: they try to delegitimize those with whom they disagree by trying to paint them not as ordinary scholars and citizens but as “a vast and sinister conspiracy, a gigantic and yet subtle machinery of influence set in motion to destroy a way of life.”

As McCarthy did then, Whitehouse does now: instead of recognizing Judge Rao as simply a legal scholar with whom he disagrees, Whitehouse attempts to paint her as the puppet of shadowy corporate interests secretly supporting the evil deeds of . . . a small forum at a law school, where scholars discuss law review article drafts?

On their face, Whitehouse’s breathless allegations are self-evidently silly—I especially chuckled at his accusation that the Koch Foundation and 2016 benefactor had a sum of $30 million “specially earmarked” for the Center. But to the paranoid mind like Whitehouse’s, such conspiracy theories make sense—because he wants them to make sense, in order to delegitimize Judge Rao and the small research forum that she founded.

Whitehouse’s dark conspiracy theories about Rao and the Center for the Study of the Administrative State are even weirder when you consider that all of the Center’s work — the broadly diverse working papers that it helps to incubate, and the public policy conferences that it hosts to discuss those papers — is freely available on the Center’s web site.

In the end, Whitehouse’s obsessive conspiracy theories about people like Judge Rao (and about the Federalist Society and its members in the academy), denigrating their scholarly work as simply the puppetry of deep-pocketed powers-that-be, also exemplifies a particularly partisan variant of what Hofstadter described in Anti-Intellectualism in American Life (1963): the reflexive hatred of intellectuals with whom one disagrees—an instinct that, as Hofstadter recognized, threatens to “gravely inhibit or impoverish intellectual and cultural life.” This leads to my final point.

5. Senator Whitehouse’s Attacks and Conspiracy Theories Are Dangerous, Because They Threaten to Squash Serious Scholarship and Civil Debate

In his attack last week, Whitehouse sneered that the Center “is devoted to conjuring ways to roll back as many regulations affecting these corporations as possible, and is funded by these same secretive groups.” That’s not true, and it takes only a passing glance at the Center’s web site — where we list the papers we’ve helped to incubate, and the conferences that we’ve hosted—to realize it.

I couldn’t be prouder of the work that the Center does, and the work that it continues to do. And frankly, I worry that demagogic attacks on the Center, from people like Whitehouse who do not actually care to know our work, will undermine the Center’s ability to continue to be a home for energetic, bipartisan debates and scholarship.

We need these kinds of forums now more than ever. At a moment when the political parties are increasingly polarized, and the nation’s discourse is increasingly uncivil, we need institutions that reinforce civility and open-mindedness—we need to build them up, not tear them down, in the public interest.

I hope that Whitehouse doesn’t succeed in demagoguing the Center and intimidating the diverse assortments of scholars who participate in our programs.

I will continue to ask foundations and others to support the Center’s work, while also preserving the Center’s academic independence and the independence of the diverse array of scholars whose work we’ve helped to support. To continue to grow the Center’s work, I would love to have the support of the Koch Foundation and any other foundation, from any political perspective, that wants to support our independent research. George Mason University’s president, Angél Cabrera, put the point well in his own statement last year on philanthropic support and academic independence:

Other critics go beyond the demand for transparency and disapprove of the university’s accepting gifts from donors of a specific political ideology. Some, most notably the supporters of the “UnKoch My Campus” movement, are explicit about their goal. These demands are troubling. The idea that we ought to apply an ideological litmus test to determine who may or may not donate to the university would run counter to the tenets of academic freedom. The suggestion that we should keep certain conservative donors away only helps intensify the growing concern that colleges are ideologically one-sided. We must stand firm against internal and external pressures to reject gifts for ideological reasons and be proud of our diversity and inclusion, not only of people, but also of ideas.

For all of his attacks on Judge Rao and the Center that she founded, Senator Whitehouse is utterly ignorant of the work that we’ve done and continue to do. I wish he were more interested in the diversity of our ideas, rather than his own single-minded hatchet jobs.

Adam J. White is an assistant professor of law at George Mason University’s Antonin Scalia Law School, where he directs the law school’s C. Boyden Gray Center for the Study of the Administrative State.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.