[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

[[Page S4859]]

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.

[[Page S4860]]

  

                          ____________________