[Congressional Record Volume 167, Number 199 (Tuesday, November 16, 2021)]
[Senate]
[Pages S8314-S8316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. WHITEHOUSE. Mr. President, I rise today for now the ninth time to 
unmask the rightwing, dark money scheme to capture our Supreme Court. I 
say ``capture'' in the sense of regulatory capture, an Agency capture--
a well-known phenomenon.
  Today, I turn to an important tool of the scheme's apparatus: the 
orchestrated amicus curiae brief.
  So, first things first, amicus--or friend of the court--briefs are an 
important instrument in our judicial system. They help those who aren't 
parties to a case to share their expertise, insight, or advocacy with 
the Court. I file them myself. ``Friend of the court'' briefs are 
necessary and useful, usually.
  However, in recent years, the Court has had a lot more friends than 
it used to. Amici filed 781 briefs in the 2014 Supreme Court term--a 
more than 800-percent increase from the 1950s and a 95-percent increase 
just from 1995. In the 2010 term, 715 amicus briefs were filed in 78 
cases. By 2019, that number had swelled to 911 briefs in just 57 cases. 
The average number of briefs per argued case almost doubled--from 9 in 
2010 to 16 in 2019.
  There is another odd feature to this uptick of amicus briefs. Most of 
the time, you file an amicus brief when the Justices have taken a case 
and are poised to actually decide the outcome of that case, at the so-
called merits stage of the case, which makes sense because this is when 
the rulings actually become law. But these days, more and more amici 
arrive when the Court considers whether to take up the case, when the 
Justices are deciding whether to grant certiorari, or cert. Between 
1982 and 2014, the percentage of petitions with at least one cert-stage 
amicus more than doubled.
  Justices pay attention to amicus briefs. The Court cited amicus 
briefs 606 times in 417 opinions from 2008 to 2013--far more than in 
the past. These briefs don't always add value, and top appellate judges 
are beginning to sound that alarm.
  Seventh Circuit Judge Michael Scudder said in 2020: ``Too many amicus 
briefs do not even pretend to offer value and instead merely repeat . . 
. a party's position'' and ``serve only as a show of hands on what 
interest groups are rooting for what outcome.''
  OK. So what does this have to do with the scheme?
  Well, what happens if the Justices whom dark money forces ushered 
onto the Court are looking for that show of hands?
  I doubt it is just a coincidence that the rightwing donor machine 
that set out to capture the Court has also kicked into gear flotillas 
of amici that

[[Page S8315]]

inundate the Court with briefs, signaling their desire for a certain 
outcome--a showing of hands that is orchestrated.
  Now, the scheme is, by design, hard to make out. It runs on anonymous 
dark money for a reason. It works through front groups, some with 
multiple fictitious names. It works hard and spends plenty to hide its 
hand. Still, look carefully, and the scheme's hand is there to see. 
Like eddies swirling the water's surface as a creature moves beneath, 
signs of rightwing donor influence swirl around the Court.
  One of the strongest signs is that there is a pattern--a pattern of 
success when orchestrated flotillas of dark money amici, funded by a 
small number of wealthy rightwing donors, show up: they win. This 
Court, the Court that dark money built, delivers in their 
favor. Exhibit A is probably the U.S. Chamber of Commerce, where the 
idea for this scheme first bubble up years ago with the Powell memo.

  Over the past 15 years or so, the chamber has filed more amicus 
briefs at the Supreme Court than almost anyone else and has gotten its 
preferred result 70 percent of the time. And no one knows what company 
or what interest the chamber may be fronting for. That is hidden from 
the Court and from the other parties.
  The chamber can even hide if one of its members wrote or funded the 
chamber's amicus brief in that member's own case. So the members of the 
party and the chamber on behalf of the member file an amicus brief, and 
no one is the wiser.
  So it is no surprise that the chamber is trying very hard to block 
the Judicial Conference from bringing more transparency and daylight 
into the funding of these amicus briefs.
  It is not just the chamber in this deep racket here. If you take the 
recent anti-union cases--Janus v. AFSCME, Cedar Point Nursery v. 
Hassid, and Freidrichs v. California Teachers Association, each case 
drew 10 or more amicus filers connected to these scheme donors.
  In both Freidrichs and Janus, scheme megadonor the Bradley Foundation 
funded the law groups representing the anti-union plaintiffs and also 
funded a dozen supporting amici. The front groups even swapped seats 
with a group representing plaintiffs in one case, turning up as an 
amicus in the other case and vice versa. It is a front-group, pea-and-
shell game that the Court, for some reason, indulges. It is no surprise 
that all of these cases delivered big wins for corporate interests out 
to weaken organized labor.
  Or you could look at the scheme's attack on the Consumer Financial 
Protection Bureau. The CFPB has long been a target of rightwing 
interests. The Center for Media and Democracy reported that 16--16--
rightwing foundations, including the Bradley Foundation and Donors 
Trust, had donated almost $70 million to 11 amici who opposed the 
Consumer Financial Protection Bureau.
  I did a brief in that case, an amicus brief of my own, and I put this 
graphic in my amicus brief as an appendix to show the Court the common 
funding of all of these groups that purported to come in as 
independent, unassociated amicus filers.
  So here are the donors across the top--Donors Trust, Bradley 
Foundation, Scaife Foundation, Searle Trust, Charles Koch Foundation, 
Kirby Foundation, and the DONNA Foundation--and here are the groups 
that filed briefs. Every single one got money from Donors Trust, which 
is called the Koch brothers' ATM. It is the entity that hides who the 
real donor is, and it just shows up as Donors Trust.
  Here is the Bradley Foundation--all but one, two, three. Here is the 
Scaife Foundation--all but one, two, three, four, five, and so on. So 
there is an enormous amount of overlap that I was able to figure out, 
as pointed out in my brief, and then the Center for Media and Democracy 
came through with a more complete report and did an even better job of 
researching that.
  So remember from my previous speeches how it was the Federalist 
Society that was home to the dark money turnstile that selected all 
three of Trump's Supreme Court appointees. Eleven amici supporting the 
challenge to the CFPB received funding from entities that also funded 
the Federalist Society. So it is a pea-and-shell game of funded amici 
with a lot of shells.
  And then there is the biggest scheme case of them all. You might call 
it the scheme-a-palooza. The case was called Americans for Prosperity 
Foundation v. Bonta. In this case, more than 50 dark money 
organizations filed amicus briefs at the cert stage, when the question 
is, Do we take the case, before it is even being argued on the merits? 
Fifty dark money groups appeared at the cert stage, and another 45 
turned up at the merit stage, all to support the Americans for 
Prosperity Foundation, which you will recognize as the Koch-backed twin 
to Americans for Prosperity, which is the front group at the heart of 
the Koch brothers' political operation. It is the center of the 
rightwing political dark money web.
  Essentially, the Americans for Prosperity Foundation and Americans 
for Prosperity are the same organization. In current, state-of-the-art, 
dark money politics, you twin a 501(c)(3) and a 501(c)(4) and work them 
as a pair.
  Sure enough, if you look at Americans for Prosperity and Americans 
for Prosperity Foundation, they share quite a lot. They share the exact 
same address, for instance: 1310 North Courthouse Road, Suite 700, 
Arlington, VA. They share the same CEO. They share the same senior vice 
president of grassroots in Americans for Prosperity and senior vice 
president for State operations in Americans for Prosperity Foundation. 
They share the same senior vice president of policy. They share the 
same chairman of the board. They share the same president. If you were 
to do a piercing of the corporate veil analysis, you would be hard-
pressed to show that these are not essentially the same organization.

  And that armada of amici that came into the Americans for Prosperity 
Foundation case, all of them received funding from the Koch political 
network or the Koch identity laundering group, Donors Trust.
  At least eleven prominent rightwing groups gave close to $222 
million, spread across 69 of those amici who came in to support their 
fellow Americans for Prosperity Foundation.
  If the little flotillas of a dozen or so in the CFPB case and in the 
anti-labor cases were sending a signal to the Court, this turnout was a 
screaming alarm--a megaphone--in the Court's face.
  So what made the AFPF case such a big deal for the scheme? Well, this 
case gave ``the Court that dark money built'' an opportunity to do 
something that dark money donors desperately wanted. It gave the Court 
the opportunity to create for the dark money donors a new 
constitutional right--a new constitutional right to dark money, the 
essential political weapon for the scheme. And the Court did it. The 
Republican Justices, six to three, did it.
  ``The Court that dark money built'' struck down a State rule 
requiring limited disclosure of nonprofit donor information from a very 
political nonprofit and went on to cast a shadow of doubt on the 
constitutionality of disclosure requirements of any kind.
  The amicus mischief at the Court continues. Look at the gun case 
before the Court right now, New York State Rifle & Pistol Association 
v. Bruen. This case is priority No. 1 for the NRA and its gun industry 
backers. It has been a centerpiece of the scheme for a very long time 
to have the Court create gun rights that even a Republican Congress 
won't give to the firearms industry. So in this case, the amicus signal 
flags are flying.
  Sixty-five organizations filed briefs supporting the NRA affiliate 
that brought the challenge. At least 13 of those groups have ties to 
the scheme's dark money funding network.
  Several amici are arms of other amici; that is, the fundraising or 
lobbying arm of an organization that itself also filed a brief in the 
case. At least five amici are NRA affiliates, and they were joined by 
the NRA's ``Civil Rights Defense Fund.'' And, believe it or not, thanks 
to leaks by Russian hackers, we have seen that the NRA paid a lawyer at 
one of the amicus groups hundreds of thousands of dollars to file pro-
NRA briefs in this case, none of which was disclosed to the Court, none 
of which was disclosed to the parties, none of which was disclosed to 
the public. It took Russian hackers to find out that the NRA was 
funneling money to an amicus for a brief.
  Well, it seems like the Justices got the signal from all of those 
dark-

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money-funded amici. Based on questioning from the Court Republicans at 
oral argument, this case looks almost certain to go in the scheme's 
favor.
  Pause to consider what this means. The NRA basically cloned itself to 
amplify its voice before the Court, just as other scheme front groups 
have done in other cases, in wave upon orchestrated wave of amicus 
briefs, washing into the cases that matter to the scheme's big donors.
  And when those little orchestrated flotillas or the big orchestrated 
armadas show up at the Court to signal what they want, they always get 
what they want from the dark money majority at the Court--always. Maybe 
not all they want always--some groups ask for more than others. Some 
signal where they want the Court to go in future cases, not just what 
they want in this case. But the response from the Republicans on ``the 
Court that dark money built'' is clear. They heed the dark money 
signals every single time.
  Our Supreme Court is awash in dark money influence, with flotillas of 
dark-money-funded front groups--front groups that don't bother to 
``offer value,'' that aren't even real, in the sense that they have no 
real business or function, that exist merely to signal their donors' 
desired outcomes, while hiding their donors' identities.
  It is an armada of fakery that the court indulges. This fakery lets a 
small, wealthy, donor elite manufacture sham allies to get themselves a 
bigger say at the Supreme Court than everyone else. They are out to get 
the Court to do stuff for them that Americans don't want and that 
Congress won't vote for. But with a captured Court, they can get what 
they want, and they do.
  The American people may not be able to see all of the rot, but they 
can see enough to know that something is rotten over there across First 
Street at that Court. We must set it right.
  To be continued.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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