[Congressional Record Volume 167, Number 122 (Tuesday, July 13, 2021)]
[Senate]
[Pages S4858-S4860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. SUPREME COURT
Mr. WHITEHOUSE. Mr. President, this series of ``Scheme'' speeches is
designed to chronicle a long-running, covert scheme to capture the
Supreme Court. Regulatory Agencies have often and notoriously been
captured by regulated interests. There is a whole doctrine of
regulatory capture found in economics and administrative law that
revolves around this history of the regulatory capture of
administrative Agencies. So, if you can capture administrative Agencies
to serve special interests, why not capture a court?
The trajectory of these ``Scheme'' speeches has been through time,
beginning with the Lewis Powell strategy report to the U.S. Chamber of
Commerce and then his enabling of that strategy as a Justice of the
Supreme Court and then how the rightwing fringe was brought into
organized alignment by the Koch brothers and then, of course, the link
to this regulatory capture apparatus and its willing band of mercenary
lawyers and witnesses.
Tonight, I interrupt that time trajectory to discuss two decisions
just delivered by the Supreme Court, decisions that clearly reflect the
patterns and purposes of the Court capture effort.
Let me start by saying that the single most important goal of this
covert scheme is to protect itself. The apparatus behind the scheme may
be put to innumerable political uses, but none of those political uses
will be effectuated unless the underlying apparatus protects itself and
stays operational. Survival of this operation is job one, and a core
strategy for protecting its covert operations is camouflage.
To camouflage this scheme you need anonymity for the donors behind
the operation. The scheme is blown if there is transparency. The
clandestine connections among front groups become apparent, and the
manipulating hands of the string pullers behind the surreptitious
scheme become visible. Voters then see the scheme, understand the
players and the motives, get the joke, so to speak, and the operation
is blown. So anonymity--donor anonymity--is essential. Voters may hate
big, anonymous donors, but big, anonymous donors need anonymity.
The term for this anonymous funding, now pouring by the billions of
dollars into our politics, is ``dark money.'' This is a dark money
operation, and if you are out to capture a court, you will want to make
sure that court will protect your dark money--the camouflage for all of
your covert operations. That is job one, which brings us to the
Americans for Prosperity Foundation case.
The Americans for Prosperity Foundation is a central front group of
the Koch brothers' political influence operation. It sued to prevent
California from getting access to donor information of the so-called
nonprofits, like itself, that, since Citizens United, have provided
screening, anonymity for the megadonors behind their political efforts.
For these political groups, donor anonymity is vital for the scheme to
function.
Now, one of the ways the dark money operation signals its desires to
the Court is through little flotillas of dark money groups that show up
as what are called friends of the Court--``amicus curiae,'' to use the
legal term--to provide guidance to the Justices. Little flotillas of
dark money groups showed up in Cedar Point, in Seila Law v. CFPB, in
Rucho v. Common Cause, in Knick v. Township of Scott, in Lamps Plus, in
Epic Systems, in Janus v. AFSCME, in Husted v. Randolph Institute, and
in a host of other cases. In each case, the little signaling flotilla
showed up. In each case, the Court delivered a partisan win for the
little flotilla. They usually number a dozen or so, and it is happening
in plain view, except that what is not in plain view is who is funding
the little orchestrated flotillas. That, the Court helps to keep
secret.
So these signaling flotillas that appear in these cases and generate
these partisan victories usually number about a dozen but not in the
Americans for Prosperity Foundation case, not in this case. In this
case, 50 of them showed up--50. I think that is a record, kind of a
personal best for the dark money armada, and they showed up early on,
at the certiorari stage, at the stage when the Court decides whether or
not to take the case--50 dark money groups showing up at the certiorari
stage.
This was a blaring red alert to the Republicans on the Supreme Court
as to how important this case was to the dark money operation. Sure
enough, just like in all of the other cases I mentioned, the Court
delivered. The Republican Justices on the Supreme Court just
established a new constitutional right to donor secrecy, and they did
so for a group, the Americans for Prosperity Foundation, that is
flagrantly involved in rightwing political mischief and manipulation--
flagrantly involved.
The Americans for Prosperity Foundation group's operating entity had
actually even spent millions of dollars just last year to help get
Justice Barrett confirmed. They are so brazen about this that they
actually used the Americans for Prosperity Foundation as the named
party, not some benign, nonpolitical entity that they could have
dredged up. No, they took the bet that this precedent of a politically
active manipulator being the named party would not faze the Republicans
on the Court, and they would be able, with that partisan majority, to
gain a legal foothold for their dark money political spending.
There are few things that enrage the American public more than
crooked, dark money political spending. If you tried to get a dark
money political spending bill through the Senate, you couldn't do it.
If you tried to get it through the House, you couldn't do it. If you
put the Senate and House under Republican control, you still couldn't
do it, but if you have captured the Supreme Court and have sent 50 dark
money groups in a big signaling armada and have told them what you
want, then a decision that is as unpopular and enraging as this
decision comes your way, and they pulled it off in plain daylight.
Justice Barrett even declined to recuse herself--that is how brazen
this
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is--despite the Caperton case precedent of recusing in cases involving
parties who spent millions to get you on the Court. Not a peep about
that conflict of interest. Not a peep about that effective repeal of
the Caperton case.
This Republican majority completely ignored the assertions of the
Republican majority that gave us Citizens United: that transparency and
political spending is our protection against corruption. That was the
hook for Citizens United: Don't worry, folks. We can let unlimited
amounts of special interest money pour into politics, and it won't be
corrupting because it will be transparent. Everybody will see or hear
at the end of the ad: ``I am ExxonMobil, and I approve this message.''
That was the trick of Citizens United.
I suppose you could say that it was a safe bet that this Republican
majority would not be concerned about donor transparency the way the
Citizens United Republican majority was, because the Republicans on the
Court, after Citizens United, turned a completely blind eye to billions
of dark money dollars that poured into our politics.
They had said that was corrupting, but every chance they got to
impose their own decision and clean up the dark money corruption, they
scrupulously refused to do it. They did not or pretended not to see it.
So if you are this apparatus and you think you have captured the
Court and you look at the blind eye that had turned to these flagrant,
constant, massive violations of the supposed Citizens United
transparency principle, you take your shot, and they did. And what it
looks like now is that it was window dressing in Citizens United to
pretend to care about transparency, and what it looks like now is that
this new Republican majority has tossed even that window dressing into
the dumpster.
This Americans for Prosperity Foundation decision looks totally
outcome driven--not applying the law, but changing the law to favor
dark money--and the decision was on a purely partisan basis, all the
Republicans.
The end result here is that this dark money empire that spends
billions of dollars in our politics has just been given by the
Republican Justices a legal tool to fight disclosure, stall exposure,
and protect the clandestine nature of its covert political operations.
Remember what I said, job one? This is job one. This is the dark
money apparatus's pearl beyond price, and the Court--at least the
Republicans on the Court--delivered.
And it is notable that this dark money-funded operation that just got
this big and novel win had a big hand in putting the last three
Justices on the Court. Much of how they did it is hidden behind dark
money screens, but what we do know is chilling.
The Federalist Society took in tens of millions of dollars in dark
money while it was being used as the private political turnstile to
control who got nominated to the Court. The Judicial Crisis Network
took dark money donations, some as big as $17 million, to fund ad
campaigns for the nominees selected by the Federalist Society's special
interest turnstile to get them confirmed to the Court. Who writes a $17
million check for that?
And, of course, floods of dark money poured into the Republican Party
as Leader McConnell smashed and crashed his way through any rule, any
precedent, or any practice of the Senate that stood in the confirmation
path of these dark money nominees. Truly, this Court is, today, the
Supreme Court that dark money built, and it just delivered for the dark
money interests.
The dark money link to the Republican Party brings us to the second
case. This case, Brnovich v. DNC--Democratic National Committee--
involved voter suppression laws passed to discourage minorities from
voting. Why would anybody want to do that? Because today's Republican
Party has settled on voter suppression as its path to power. Across the
country, you see it. Republican-controlled legislatures have swiveled
in unison to pass voter suppression laws in their States all at once,
as if on signal. And guess what. Dark money groups have been caught
taking credit for this coordinated swivel, describing how they worked
through local sentinels, describing how they drafted the legislation
for the local Republicans, and describing how they were able to do so
surreptitiously.
The voter suppression fixation of Republicans in all these State
legislative bodies is quite plainly a coordinated activity, and equally
plainly it has the dark money apparatus behind it.
Here is another example: After a Washington Post expose blew his
cover, the operative at the center of the dark money Court-packing
scheme vacated that role. The article was pretty tough. He got burned
pretty good. So he fled. And where did he go? He moved straight from
Court packing to voter suppression.
Don't worry, he didn't have to go very far from his Court-packing
roots. The group he went to is called, in fine Orwellian fashion, the
Honest Elections Project. What is the Honest Elections Project? It is a
corporate rebranding of something called the Judicial Education
Project, which is, in turn, the corporate sibling of--yup, you guessed
it--the Judicial Crisis Network, the group that was getting the $17
million checks to run the Court-capture dark money advertising
campaigns. The former Court-packing group is the corporate kin of the
honest elections voter suppression group, and the same guy just hopped
from the one to the other.
The Washington Post expose, by the way, chronicled $250 million in
funding for this dark money Court-capture operation through its network
of groups. So whoever is behind this, they are not playing around, and
$250 million is an immense sum.
So when Mr. Court Capture shows up as Mr. Voter Suppression in a
repaint of one of his Court capture vehicles, you can guess that his
voter suppression effort will have plenty of dark money too.
So with this as the background, the Republicans on the Court served
up yet another blow to the Voting Rights Act. They allowed States to
pass even more voter suppression laws. They allowed them to pass even
voting laws conceded to impede minority voting. The purpose of the
Voting Rights Act is to protect voters' rights to the polls and
particularly minority voters' rights to the polls because of decades of
discrimination and suppression that kept minority voters away from the
polls.
In this case, they said: No, it is OK. If the decision is conceded to
fall unfairly on minority voters, still good. The author of this
partisan majority decision, even for good measure, threw in the totally
unsupported and perhaps even fraudulent Republican political talking
point that voter fraud is presently a big hazard demanding our
attention.
So it was a very big week of very big rewards for a very big dark
money apparatus. When those two decisions came down, the upshot was
simple. The dark money apparatus that put the last three Justices on
the Court desperately needs dark money to function. And the Court that
dark money built just built dark money a new home in our Constitution.
And the dark money apparatus that put the last three Justices on the
Supreme Court desperately needs Republicans to win elections to work
its political will, and the No. 1 Republican strategy going into 2022
is voter suppression. And the Court that dark money built just kicked
into the Voting Rights Act another hole allowing more voter
suppression.
It has been said that these Justices up on the Supreme Court are
there just calling balls and strikes. Yeah, right. They are not just
calling balls and strikes. In case after case, over and over, in a
consistent and predictable pattern, they are changing the shape of the
ballfield. They are tilting the ballfield steeply to help one side, and
they are doing grave damage to important safeguards of democracy in the
process.
These two cases, ignoring precedent and delivering big political wins
to the dark money apparatus through a partisan Republican majority,
show the game in play and the Republican Justices as players.
To be continued.
I yield the floor.
The PRESIDING OFFICER (Mr. Peters). The Senator from Rhode Island.
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