[Congressional Record Volume 165, Number 86 (Wednesday, May 22, 2019)]
[Senate]
[Pages S3033-S3035]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         The Federalist Society

  Mr. WHITEHOUSE. Mr. President, on Tuesday, the Washington Post 
published an important piece of investigative journalism. The 
journalists looked into a very narrow, very wealthy group of special 
interests seeking to control our Federal judiciary. It was a revealing 
story, one that matters a great deal to the Senate and to the people we 
serve. I come to the floor today to discuss that tightening special 
interest grip on our courts.
  The central operative in this court-fixing scheme is Leonard Leo of 
the Federalist Society, the organization at the center of this effort. 
As I described here on the Senate floor several weeks ago, there are 
three incarnations of the Federalist Society.
  The first is a debating society for conservatives at law schools. 
They convene panels and forums for like-minded, aspiring lawyers to 
talk about conservative ideas and judicial doctrine. That is all fine.
  The second is a flashy Washington, DC, think tank. They attract big-
name lawyers, scholars, and politicians--even Supreme Court Justices--
to their events. They publish and podcast. They hold black tie galas. I 
don't agree with the work they do, but I don't question their right to 
do it.
  The third Federalist Society is what was exposed in the Post article. 
It is something much, much darker, both in its funding and in its 
function. It is a vehicle for powerful interests seeking to ``reorder'' 
the judiciary under their control so as to benefit their corporate 
rightwing purposes. It seeks to accomplish by judicial power grab what 
the Republican Party has been unable to accomplish through the open 
Democratic process.
  This third, dark Federalist Society understands the fundamental power 
through the Federal judiciary to rig the system in favor of special 
interests.
  So what did the Post find out about how our judges on the most 
important courts in the country are selected? It found a network of 
front groups. It found shell entities with no employees. It found 
shared post office mail drops, common contractors and officers across 
nominally separate entities, even common presidents of nominally 
separate entities. In these characteristics, it has some resemblance to 
money laundering and crime syndicates.
  What else did they find? They found dark money funders, anonymous 
advertising, enormous pay packages for the operatives, and judicial 
lists prepared secretly. It found $250 million in dark money flowing 
through this apparatus.
  The story turns up familiar dark money political funders like the 
Mercers and the National Rifle Association, but it also exposes groups 
that are harder to spot, which may not have garnered much attention 
before but serve central functions in Leonard Leo's court-fixing 
apparatus.
  A few weeks ago I delivered remarks on the Senate floor about the 
sweeping influence of Leonard Leo and the Federalist Society court-
fixing scheme. I touched on one Federalist Society product of this 
scheme in particular: the newly confirmed DC Court of Appeals judge, 
Neomi Rao. I described some pretty straightforward facts about Rao. Her 
connection to the Federalist Society is no secret. Sitting on the DC 
Circuit right now, her bio still appears on the Federalist Society 
website along with the list of 26 times she has been featured--26 times 
she has been featured at Federalist Society events.
  Before being nominated for one of the most influential courts in the 
country, which some call the second highest court in the land, she had 
never been a judge, she had never tried a case. Instead, she had served 
as the Trump administration's point person for helping big Republican 
donors tear down Federal safety regulations. She did this as the head 
of the White House's Office of Information and Regulatory Affairs, 
OIRA. That is not disputed.
  Before that, she founded something provocatively called the Center 
for the Study of the Administrative State at George Mason University's 
Antonin Scalia Law School. Her center is a cog in Leonard Leo's 
machine.
  Let's revisit Rao's testimony before the Senate Judiciary Committee 
about the funding for the Center for the Study of the Administrative 
State. She testified that neither the Koch Foundation nor any anonymous 
donors had funded her center. Well, a trove of documents obtained by 
me, the New York Times, and others showed that was not true. A Virginia 
open records request had revealed that an anonymous donor funneling its 
dark money donation through Leonard Leo and the Charles Koch Foundation 
in fact donated $30 million intended to flow to her organization, her 
Center for the Study of the Administrative State.
  Well, my remarks drew quite a reaction. The center's current director 
took to Medium to post a 2,500-word rebuttal. He claimed I was all 
wrong about the center's funding--that none of its money came from 
those anonymous and Koch brothers' donations.
  The National Review jumped into the fray and noted the Medium post on 
its website. The nub of their criticism was that although I was right, 
the Scalia Law School had indeed received millions in anonymous and 
Koch brothers' money. That money had gone to fund scholarships, not to 
the anti-regulatory Center for the Study of the Administrative State.
  Let's start by assuming that is true. I will tell you, if I gave $30 
million to my alma mater ``for scholarships,'' I would expect a thank-
you. I expect they would see a gift of $30 million in scholarships as a 
benefit to the school. If they were asked ``Has Senator Whitehouse ever 
given you a gift?'' I would expect them to say ``Yes, he gave us a $30 
million scholarship fund.'' I might even expect a nice press release. 
So I don't buy the ``this was just scholarships money'' dodge around 
telling the truth to the Judiciary Committee.
  But look a little more. In 2016, George Mason University, indeed, 
received a $10 million donation from the Charles Koch Foundation and, 
indeed, did receive a $20 million donation from an anonymous donor. 
Both gifts came with grant agreements, and these grant agreements were 
among the Virginia open records documents. So we can learn a little bit 
more.
  The grant agreements stipulate that the money was intended to fund 
``scholarships'' but also specify that gifts were conditioned on the 
school's providing ``funding . . . and support for''--you guessed it--
Neomi Rao's Center for the Study of the Administrative State.
  That is not all we found. Private communications revealed with the 
grant agreements show that the Koch Foundation and their handpicked law 
school administrators viewed all of this money as fungible.
  I earlier said that if I gave $30 million, I might expect a press 
release. The Antonin Scalia Law School did a press release. Its 
announcement of this funding stated: ``The scholarship money will also 
benefit the institution because it frees up resources that can be 
allocated for other priorities, including additional faculty hires and 
support for academic programs.''
  It didn't end there. The documents keep telling us more. They include 
a progress report--a progress report--to the Koch Foundation. Under the 
heading ``most pressing needs,'' Dean Henry Butler wrote to the Koch 
Foundation: ``Cash is King (scholarships are cash).'' In that same memo 
to the Koch Foundation--which, by the way, is kind of a bizarre 
document to exist in the first place, unless this is kind of a front 
for Koch brothers' political activities--Dean Butler also made clear 
that Rao's center had indeed received hundreds of thousands in funding 
from an anonymous donor, just as I charged, and further made clear that 
Rao's center was

[[Page S3034]]

being funded with $400,000 from ``naming-gifts scholarship revenue''--
the Koch brothers' ``scholarships'' money that was earmarked for Neomi 
Rao's center. It was being rerouted to fund Leonard Leo and Neomi Rao's 
project to gut public protections in this country on behalf of those 
donors. The dark plot thickened.
  Here is the most interesting part of all. The open records documents 
also show that the law school dean, Henry Butler, regularly reported to 
Leonard Leo on developments at Neomi Rao's center, including faculty 
hiring and other Federalist Society priorities. The emails are very 
cozy. The dean is deferential. There is even a calendar entry for lunch 
at a Washington, DC, restaurant for Neomi Rao, Henry Butler, and 
Leonard Leo. Cozier still is that another condition of the Koch 
Foundation's massive gift was that Henry Butler be protected as dean 
because they viewed him--specifically him--as ``critical to advancing 
the school's mission.'' That mission? Doing the Koch Foundation and 
Leonard Leo's bidding to help cripple public interest protections in 
this country for big special interests funding Leo, funding the center, 
and funding the Federalist Society.

  Neomi Rao's defenders were quick to push back on this point and 
argued that my criticisms of her center's work was stifling their 
academic inquiry. They pointed to the center's research roundtables and 
public policy conferences as evidence of its fair and independent 
academic bona fides.
  Sorry, but it is tough to buy when, in one private fundraising email, 
Dean Butler was revealed to have asked one wealthy donor for a $1.5 
million gift ``to entice Neomi [Rao] to return home to Scalia Law after 
she dismantles the administrative state.''
  Tell me, who is the real threat to academic inquiry here?
  Perhaps more to the point, now that she is a judge: Who is a present 
threat to judicial independence on the DC Circuit Court of Appeals?
  Fancy lunches and weird, cozy relationships between public law school 
deans and DC power brokers can seem a bit in the weeds, so let's not 
lose sight of the bigger picture here. This stuff matters because 
Americans are now seeing their courts fill with judges, like Neomi Rao, 
who are expected and chosen to reliably rule for big corporate and 
Republican partisan special interests--the ones funding the Federalist 
Society's selection of these judges, the ones funding the Judicial 
Crisis Network's confirmation of these judges, the ones funding Amici, 
the front group Amici that shows up to argue in court.
  I recently looked at the numbers for the Federalist Society-dominated 
Supreme Court. Under Chief Justice Roberts' tenure, through the end of 
the October term of 2017 to 2018, Republican appointees delivered 
partisan 5-to-4 rulings that favored corporate or Republican partisan 
special interests, not three or four times, not even a dozen or two 
dozen times, but 73 times. If you look at the Court's cases during 
Chief Justice Roberts' tenure and look at the 5-to-4 decisions and look 
at the 5-to-4 decisions wherein the breakdown between the five and the 
four was partisan and look at those 5-to-4 partisan decisions, for the 
ones in which there was a clearly apparent, big Republican donor 
interest, you will find that every single one of those 73 decisions was 
won--was decided--in favor of the big Republican donor interest. There 
were 73 victories delivered for big Republican interests with there 
being no Democratic appointee who joined the majority.
  Here is one case study--a recent decision after the 73. It is Lamps 
Plus v. Varela. The plaintiff, Frank Varela, sued his employer, Lamps 
Plus, after a company data breach led to a fraudulent tax return being 
filed in his name. An appellate court looked at the case and relied on 
a State contract principle to agree with plaintiff Varela. That is a 
traditionally conservative principle--deferring to State laws. Along 
came the Supreme Court in this case, and it ditched the conservative 
principle to rule in favor of the corporation in a 5-to-4 partisan 
decision.
  There is another case study pending before the Court now--Kisor v. 
Wilkie. On its face, Kisor addresses an obscure administrative law 
doctrine about judicial deference to Federal Agencies, but Kisor has 
been described as a ``stalking horse for much larger game.'' The larger 
purpose is to strip away judicial deference to administrative Agencies' 
capacity to regulate independently in the public's interest.
  You have to understand that if you are a mighty corporation, you come 
to an administrative Agency from a position of terrific advantage 
ordinarily, and where administrative Agencies are willing to stand up, 
that is important, but if you can get your judges on a court and strip 
away that deference, now you can put the fix in through the courts.
  Imagine a world in which Federal Agencies get virtually no judicial 
deference and in which Leonard Leo's special interest, handpicked 
judges rule on Americans' disputes with big corporations. If these big 
special interests are sick of protections for workers in the workplace, 
let the judges get rid of them. Dismantle the administrative state. If 
a big special interest is sick of safeguards for our air and water or 
dangers in toys our children play with, dismantle the administrative 
state. Tear down the safety regulations. They will have the judges to 
do that. If corporations are sick of a guardrail that keeps our 
financial system from dragging down millions of Americans' financial 
security, these judges stand ready to dismantle the administrative 
state that protects investors.
  Leonard Leo's dark Federalist Society element is installing judges 
who are poised to systematically and relentlessly dismantle government 
Agencies that are sworn to keep us safe and secure.
  How do you push back on this machine wherein the big-money special 
interests select a nominee by contributing to the Federalist Society 
and Leonard Leo's secretive judicial lists and judge-picking process? 
They spend money campaigning for their selected judge's confirmation 
through the Judicial Crisis Network. They then spend money through 
amicus briefs and argue before the judges on whom they have spent money 
to select and confirm. Sure enough--bingo--it is 73 to 0 in the 
important decisions in which they can get the Republican appointees to 
gang up in a group of five and deliver and deliver for the interests of 
the center of this, which you can't properly identify because it is not 
transparent.
  The Federalist Society doesn't disclose its donors. The Judicial 
Crisis Network doesn't disclose its donors. The Supreme Court rule 
doesn't get at who the real donors are to this phony front group, 
Amici. You find out later on who the winners are--73 to nothing.
  How do you push back on that machine? You push back with sunlight, 
with transparency. We must have transparency in our campaign finance 
system. We must have transparency in this special interest conveyor 
belt that is filling our courts. We should also have transparency in 
the courts. Right now, the dark money-funded front groups behind 
Leonard Leo and behind the Federalist Society's judge-picking operation 
are probably also behind those amicus briefs. With a little 
transparency, we would know. It is through these amicus briefs that the 
judges who were selected and confirmed by these folks get instructed on 
how they should rule. This is a recipe for corruption.
  The Court itself should require real transparency from so-called 
friends of the Court. These amicus groups come in under a Supreme Court 
rule. The Supreme Court rule only requires them to disclose who paid 
for the brief. Yet who is really behind the group? We don't know. The 
Supreme Court could correct that. It could correct it like that, but 
then it would start to expose who is here.
  If the Court will not, Congress must. Democracy dies in darkness, it 
has been said, and so does judicial independence. The American people 
deserve to know when powerful special interests are paying to sway 
Federal judges with self-serving legal advice. If those same interests 
paid to get those judges selected and paid to campaign for their 
confirmations and then paid to have the amicus briefs put before the 
Court, the need for the American people to understand what is going on 
becomes even more profound.
  I close with a big thank-you to the Washington Post for its 
reporting. Thanks to its careful investigative work of its pouring 
through tax records and interviews, we now know a lot

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more about the Federalist Society's court-fixing operation.
  Our President likes to describe investigative journalism that pokes 
and probes at the mischief of his administration as fake news. There is 
nothing fake about this news. This is in the best traditions of 
investigative journalism, and I am grateful for its work to illustrate 
how our courts are being captured by corporations and runaway 
partisanship that is fueled by dark money.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.