[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
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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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