[Congressional Record Volume 167, Number 131 (Tuesday, July 27, 2021)]
[Senate]
[Pages S5094-S5096]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am here once again to shed a little 
light on the dark money scheme to capture and control our Supreme 
Court.
  As folks may recall, my first two speeches covered the early 
foundation of this scheme--a prominent conservative lawyer Lewis 
Powell's detailed strategy memo for the corporate U.S. Chamber of 
Commerce and then Justice Lewis Powell's work on the Court to assure 
his corporate power strategy's success.
  From there, I turned to what historian Richard Hofstetter called the 
paranoid style in American politics and how extreme anti-government 
megadonors like the Kochs harness that rightwing fringe and how, at the 
same time, they had at their disposal the polished mercenaries of 
corporate administrative agency warfare.
  Then I discussed the scheme's two big recent dark money wins at the 
Supreme Court--the AFPF dark money case and the Brnovich voter 
suppression case.
  The nutshell overview of all of this is that it is a short jump for 
big donors from regulatory capture, which is a well-understood and 
broadly observed phenomenon, to applying known techniques of regulatory 
capture to capture a court.
  As the big donors had this realization and made this jump, one of 
their most important players in applying capture techniques to the 
judiciary has been the Federalist Society.
  I will start with some very straightforward observations. Every 
member of the Court's six-Justice Republican majority is a current or 
former member of the Federalist Society.
  Justices regularly headline Federalist Society fundraisers, like the 
gala Brett Kavanaugh chose for his first major public speaking 
engagement after his disastrous confirmation, and they boast of their 
association with the group. The Federalist Society is a dark money 
organization. It receives millions in anonymous donations.

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  The Federalist Society carefully vetted and promoted each member of 
the current Court majority. Each member rose to the top of the group's 
donor-approved slates of nominees. Each was backed by the Federalist 
Society's extended network of satellite groups.
  For the dark money forces behind the capture of the Court, the 
Federalist Society became their nomination's gatekeeper.
  The Federalist Society has three component efforts. The first is 
basically a law school debate club. At more or less every law school in 
the country, they organize seminars and invite academics, judges, 
attorneys to speak. It is pretty standard law school stuff.
  The second is a fairly run-of-the-mill Washington think tank. They 
issue newsletters, host podcasts, convene events with conservative 
legal luminaries. This think tank's mission is to ``reorder priorities 
within the legal system'' and to create a network of members that 
``extends to all levels of the legal community.''
  Then there is the third Federalist Society operation. This is the 
gatekeeper. It doesn't really care about fostering young legal minds. 
It doesn't care about galas or podcasts either. It cares about one 
thing: the allegiance of Republican-appointed Justices to rightwing 
donors' interests. And the dark money sluice gates into the Federalist 
Society provide the perfect means of influence. Money talks. Dark money 
whispers.
  The Federalist Society gatekeeper role began with the hiring of a 
Cornell Law graduate named Leonard Leo, fresh from a clerkship in 1991.
  Leo's first task was building the lawyers division to serve as a 
pipeline for rightwing lawyers to rise through the Federalist Society 
ranks toward the Federal courts.
  Observers say the Federalist Society didn't hire Leo for his skill as 
an attorney. What they saw in him was a savvy networker and fundraiser
  Johns Hopkins professor Steven Teles, who has written extensively on 
Leo and the Federalist Society, says the idea was to build what he 
called ``a network . . . with Leonard Leo at the center . . . [to] give 
conservatives a chance to meet one another and check one another out.''
  Under Leo's new system, ``the one thing all the lawyers [would] have 
in common is that they all know Leonard, and he knows all of them.''
  Big rightwing donors recognized the opportunity that Leo's Federalist 
Society operation presented: a trusted broker to sift through eager 
legal talent and pluck out adherents to donor-friendly, rightwing legal 
doctrines and then push the most promising adherents toward judgeships, 
where they could advance the scheme's ultimate goal of courts that will 
reliably rule in the donors' favor.
  As the New Yorker's Jeffrey Toobin has written, Leo quickly attracted 
the preeminent scheme funders, including the foundations of rightwing 
megadonors John Olin, Lynde and Harry Bradley, Richard Scaife, and, of 
course, the perennially mischievous and malign Koch brothers.
  The scheme also raked in anonymous funding through Donors Trust--what 
has been called the dark money ATM of the right.
  As another observer of the conservative legal movement Professor 
Amanda Hollis-Brusky said, ``The funders all got the idea right away--
that you can win elections, you can have mass mobilizations, but unless 
you can change . . . the courts, there are limits to what you can do.''
  The second Bush administration, the Federalist Society quietly became 
the big donors' nominations turnstile.
  Bush and his team welcomed Leo's help. It made things easy. Need 
someone to pay for public relations cavalry to rescue a struggling 
circuit court nominee? Leo's donors made it happen.
  According to a 2003 email from a White House staffer to the then-
Presidential Staff Secretary, a young guy by the name of Brett 
Kavanaugh, Leo coordinated ``all outside coalition activity regarding 
judicial nominations.''
  In another email uncovered by the Washington Post, Bush aides 
referred to Leo explicitly as their judicial nominations cash machine.
  ``Leonard Leo will know,'' they said, ``where to find money to hold a 
presser for a failing nominee.'' That is from one Bush aide to another.
  They go on: ``We probably don't want the fed soc''--Federalist 
Society--``paying for it, but he might know some generous donor.''
  Leo's official fed soc bio, still online today, boasts that he 
``organized the outside coalition efforts in support of the Roberts and 
Alito U.S. Supreme Court confirmations.'' The goal, of course, was to 
change the Court. The Court changed.
  Under Chief Justice Roberts, the Court's Republican-appointed 
majority served up scores of partisan 5-to-4 decisions, delivering 
partisan win after partisan win to identifiable Republican donor 
interests.
  Even before the Republican majority expanded to 6, that run of wins 
reached 80--80 partisan 5-to-4 decisions--a judicial rout favoring very 
happy rightwing donors.
  When Donald Trump assumed office, the Federalist Society gatekeeper 
role became even more obvious and even more toxic.
  You may recall that dark money emperor Charles Koch made waves when 
he told his rightwing network he could support neither Hillary Clinton 
nor Donald Trump in 2016.
  But the house of Koch and the house of Trump soon reached an 
accommodation. The house of Koch decided on a grand Trump gesture for 
their scheme donors--let their operative, Leonard Leo, handpick a list 
of Supreme Court nominees for Trump to announce early in the general 
campaign. For the price of known, scheme-approved Supreme Court 
prospects, peace might be acquired between house of Koch and house of 
Trump. Trump announced the list.
  For what it is worth, I think the rest of the accommodation was for 
house of Trump to turn over all energy and environmental positions in 
government to climate change deniers approved by house of Koch, and at 
the end of the day, it was probably a lot of the same dark money behind 
both of those accommodations.
  Anyway, rewind to 2016 and recall how large the Supreme Court loomed 
over that Presidential campaign.
  Justice Scalia died suddenly during a hunting trip. Mitch McConnell 
broke with all Senate norms and denied President Obama any hearing or 
vote for President Obama's pick to replace Scalia, Judge Merrick 
Garland.
  This vacancy would decide the partisan balance of the Court, which 
meant the 2016 election would determine whether the 5-to-4 rightwing 
majority that had delivered so abundantly for the donors would end or 
be renewed for years or even generations.
  Remember Lewis Powell's memo to the Chamber, ``The judiciary may be 
the most important instrument for social, economic, and political 
change'' in all of government. Well, nothing could focus the scheme's 
donors on the stakes of that election more clearly than that vacancy.

  With Scalia's sudden death, the scheme was at risk. So scheme donors' 
dark money flowed in ever-larger amounts to the Federalist Society, to 
Leonard Leo, and to Donald Trump.
  Ambitious judges noticed. A court of appeals judge described to me 
the conduct of some of its colleagues as auditioning--auditioning. They 
weren't just deciding cases for the parties before them, they had 
another audience beyond the courtroom. You don't audition without 
someone to audition to. These judges knew they were being assessed, and 
they auditioned. And no one auditioned harder than Brett Kavanaugh. He 
filled his court of appeals decisions with signaling, and even set the 
record for speeches to the Federalist Society. I think it was over 50. 
He knew who he was auditioning for.
  When Trump took the White House, the Federalist Society assumed 
control of judicial nominations, at least the important ones. Trump 
said so himself. He wasn't even subtle about it. House of Trump had 
peace to keep with House of Koch. This was no time for subtlety. 
Trump's new White House Counsel, Don McGahn, even joked about this 
role, of course, at a 2017 Federalist Society event. He said:

       Our opponents of judicial nominees frequently claim the 
     President has outsourced his selection of judges. That is 
     completely false. I have been a Member of the Federalist 
     Society since law school. Still am. So, frankly, it seems 
     like it's been in-sourced.

  Leo became the gatekeeper in chief, actually taking leaves of absence 
from

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the Federalist Society to advise Trump directly on Supreme Court 
nominations.
  Now, there are unanswered questions about whether this was even 
legal, but the point was clear. Virtually all major Trump nominees 
would be scheme-chosen, donor-approved FedSoc members. And, indeed, 86 
percent of Trump's Supreme Court and appellate court nominees were or 
are members.
  Leo and the Federalist Society's control ran deep. In Leo, the donors 
controlled an agent to orchestrate every aspect of Supreme Court 
judicial battles, and they provisioned him with dark money beyond 
imagining, and with a devious structure of front groups to hide behind 
while effectuating their scheme.
  We are still learning about the scope of Leo's covert funding and 
influence, but a 2019 Washington Post expose painted a remarkable 
picture: a vast network of Leo-affiliated front groups; shell entities 
with no employees and vague connections to Leo cutouts; shared post 
office boxes; common contractors and officers across nominally separate 
entities, even some sharing Presidents; dark money funders, anonymous 
advertising, and enormous pay packages for operatives.
  It has the earmarks of a covert operation of the sort that is run by 
hostile countries in the intelligence arena. But this covert operation 
was run in America against America by Americans. By the Post's 
reckoning, $250 million in dark money flowed through this apparatus. 
Testimony before the Senate Judiciary Committee's Courts Subcommittee, 
which I chair, has since updated that number to $400 million. Groups in 
this apparatus have gorged on dark money, their coffers swelling by 
orders of magnitude as Leo's influence grew.
  For example, in 2002, DonorsTrust, the scheme's dark money ATM, had 
contributed $5,000 to the Federalist Society. Scroll forward to the 
most recent year on record: It contributed $7 million.
  Before 2010, the Federalist Society received an occasional anonymous 
gift of $1,000 or more, at most one per year. Over the last decade, it 
averaged more than a dozen each and every year. Donors were not kidding 
around, not with that kind of money--$400 million. The scheme to 
capture the Court was deadly serious.
  Eleven days after Donald Trump was sworn into office, he announced 
Neil Gorsuch--a name from the Federalist Society's infamous list--to 
fill Scalia's former seat. Then Brett Kavanaugh was hand-walked by 
Leonard Leo to the top of the list, after all his ardent auditioning 
from his court of appeals seat. And 7 days before Donald Trump lost the 
2020 election, Amy Coney Barrett--a Federalist Society member and 
regular feature speaker at Federalist Society events--filled Ruth Bader 
Ginsburg's seat. The scheme's Federalist Society gatekeeper operation 
had delivered to its big donors a complete overhaul of the Court in 
less than 4 years.
  One man, his secretive array of front groups, and hundreds of 
millions of scheme donors' money, delivered a donor-approved six-
Justice majority to the Court.
  The Federalist Society was the turnstile that controlled the 
appointments, and dark money was the inducement that controlled the 
turnstile.
  To be continued.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, as I give the closing remarks, I want 
to alert everyone listening that, at the conclusion of the closing, 
Senator Inhofe will hold the floor for his remarks, and his remarks 
will be regarding our common friend, Senator Enzi.

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