[Congressional Record Volume 168, Number 115 (Wednesday, July 13, 2022)]
[Senate]
[Pages S3263-S3265]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Madam President, I rise today now for the 16th time to call out the 
dark

[[Page S3264]]

money scheme to capture and control our Supreme Court.
  The last time I rose to shine a light on this scheme, I sounded a 
warning about a case then pending at the Supreme Court called West 
Virginia v. EPA. I discussed how the Court the dark money built was 
primed to smash through precedent and weaponize fringe legal theories 
to deliver for the scheme's big donors. I am sorry but not surprised to 
report that the Supreme Court's Federalist Society Six did exactly what 
the polluters asked. Not only did the Court deliver for polluters, it 
delivered big.
  Before we dive into that, let's recap what we knew going into this 
case.
  First, the case never should have made it this far in the first 
place. A handful of States, with fossil fuel-funded attorneys general 
and an armada of rightwing front groups that were propped up by dark 
money from the fossil fuel industry, asked the Supreme Court to strike 
down an EPA rule regulating greenhouse gas emissions from existing 
coal-fired powerplants. The problem was that the rule no longer 
existed. So there wasn't actually an operating EPA rule to challenge, 
meaning there was no constitutional case or controversy and no reason 
for a legitimate Court to entertain the industry's invitation.
  But this is the Court that dark money built, and it wasn't going to 
let this constitutional guardrail stand in its way of pleasing the big 
donors who packed the Court.
  Supreme Court precedent had repeatedly rejected the polluters' 
arguments outright. The polluters argued that Congress, not the EPA and 
the so-called administrative state, needed to do the regulating here. 
It is a matter of common sense that Congress delegates authorities to 
the EPA. It is also well known that polluters want to knock questions 
away from expert regulators and over to Congress, where their dark 
money political power--also a creature of the Court that dark money 
built--can be brought to bear to buy delay and obstruction. The power 
of Congress to legislate broadly and let Agency experts fill in the 
gaps has been upheld for decades against persistent attacks from 
regulated industries.
  Well, no more. No matters of law or fact had changed since the last 
time similar questions were answered by the Court. The thing that 
changed is who is on the Court: a majority, selected by polluters, 
using hundreds of millions in dark money, which brings us to the 
decision itself. There is good news, and there is very, very bad news.
  The good news is that the Court's ruling is actually very narrow as 
to the EPA's authority to regulate greenhouse gases in the power 
sector. It is limited to deliberate generation shifting. So there is 
lots left to work with, and the EPA needs to pull up its socks and get 
to work on regulating carbon emissions and other forms of air 
pollution. So far, in 18 months of the Biden administration, the EPA 
has managed to produce one carbon emissions regulation and not a very 
strong one at that. The EPA needs to move now as fast as possible. 
There is not a second to waste. That is the good news.
  The bad news, however, is grim. The Federalist Society's Justices 
loaded up their opinions with polluter talking points and hothouse-
grown polluter legal doctrines, paving the way for polluters to block 
or delay regulations for years to come.
  Start with the polluter talking points, rife throughout Justice 
Gorsuch's concurrence, which spends 20 pages decrying the dangers of 
government regulation. He calls regulators a ``ruling class of largely 
unaccountable `ministers.' '' This is not even remotely true. If there 
is an unaccountable ruling class in America right now, it is the Court 
that dark money built and the dark money forces behind it.
  Compare that to the EPA. The EPA's leadership is selected by the 
President, approved by the Senate, and can be fired at will should they 
deviate from the elected President's priorities. They are all directly 
accountable, and the White House's Office of Management and Budget 
reviews every EPA regulation to make sure it is consistent with the 
elected President's priorities.
  Congress retains complete control over the EPA's funding and has 
entire committees dedicated to oversight. It is Congress that provided 
the EPA with its instructions through laws like the Clean Air Act and 
the Clean Water Acts. Congress also created the Administrative 
Procedure Act to assure that Agencies like the EPA carry out their 
duties fairly, according to the facts, under proper procedure, and 
under rigorous judicial supervision, and we passed the Congressional 
Review Act so Congress is able to swiftly undo any rules that it 
doesn't like.

  In actuality, in the real world, there is direct accountability and 
oversight over the EPA by all three branches--by all three branches--
over the supposedly unaccountable ruling class. By comparison, Justice 
Gorsuch and his colleagues wield their unaccountable power without even 
the bare minimum of an enforceable ethics code.
  This argument by Justice Gorsuch may not be founded in fact, but it 
has a foundation. The idea that the biggest threat to freedom is an 
administrative state full of unaccountable bureaucrats is a 
longstanding talking point of the fossil fuel industry constantly 
trotted out by Republican politicians and fossil fuel front groups. 
Here is just a taste of what I mean.
  Here is the Heritage Foundation--a key fossil fuel front group:

       [T]he administrative state's functionaries are powerful. . 
     . . They are unelected, unknown, and, for all practical 
     purposes often unaccountable.

  Sound familiar?
  Here is the minority leader himself responding to a speech by a 
Republican Senator who is decrying unelected bureaucrats. The minority 
leader called this the ``single biggest problem confronting our country 
. . . the single biggest thing holding this country back from reaching 
its potential.'' And in the wake of this very decision, he went back to 
their go-to talking point: ``unelected, unaccountable bureaucrats.''
  It just is not true. The foundation of Gorsuch's screed is not fact; 
it is political fossil fuel talking points, and we should not be 
surprised that those talking points made their way into an opinion by a 
Supreme Court Justice. That is exactly what the Court that dark money 
built was built for.
  Aside from the talking points are legal doctrines hatched in 
polluter-funded hothouse doctrine factories, a web of phony think 
tanks, scheme-friendly scholars, and conservative conferences designed 
to cultivate and legitimize fringe legal theories--reverse engineered 
to produce the results the polluters want.
  One of these is the so-called major questions doctrine, which--guess 
what--makes its maiden appearance in West Virginia v. EPA.
  Let's look at how the major questions doctrine traveled from the 
doctrine factory into a Supreme Court decision.
  The Trump administration, fully in tow to the fossil fuel industry, 
took this rare specimen of legal theory and pumped it up into a 
powerful weapon against the functioning of the Federal Government. From 
day one, Trump's top adviser, Steve Bannon, vowed that the Trump 
administration would carry out the ``deconstruction of the 
administrative state.'' Trump's White House Counsel Don McGahn--the 
same Don McGahn who oversaw the confirmation of the scheme's hand-
picked Justices--admitted that the ``judicial selection and the 
deregulation effort are really the flip side of the same coin.''
  Think about that. In his own words, the Trump White House had a 
``larger plan'' to wipe out government regulations by using judges.
  For 4 years, the Trump lawyers argued in court for this major 
questions doctrine that had been previously unmentioned in any Supreme 
Court decision. The Trump team urged courts to deploy the doctrine to 
strike down Agency laws, including in this case, West Virginia v. EPA. 
Now, while the Court had never mentioned the doctrine, it had been 
mentioned. Brett Kavanaugh, on the DC Circuit, did while he was 
auditioning himself for a seat on the Supreme Court, to catch the eye 
of the scheme donors and to telegraph to them how eager he was to do 
their bidding. Kavanaugh wrote a dissent in a case about net 
neutrality--a case with many of the scheme's dark money front groups--
Cato, Competitive Enterprise Institute, Pacific Legal Foundation--
present as amici. They were the right audience for Kavanaugh's ``major 
questions'' audition tape, and he aimed to please.

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  Payday for scheme donors came in West Virginia v. EPA. At least 14 
polluter front group amici showed up to push in chorus for their major 
questions doctrine--the usual suspects--funded by fossil fuel dark 
money, like Cato, the Koch flagship Americans for Prosperity, and the 
Competitive Enterprise Institute.
  Justice Gorsuch's concurrence is rife with citations legitimizing 
doctrine factory ``scholarship.'' He cites articles written by the 
founder and president of the Free State Foundation, a member of the 
dark money State Policy Network; by a member of the dark money 
Federalist Society's Administrative Law Group executive committee; and 
by the former president of the Koch-funded American Enterprise 
Institute.
  The scheme is all about boosting corporate power and rolling back 
government regulations. It is not just about building a dark money 
Court; it is about front groups by the dozen which operate in 
coordinated flotillas; it is about faux scholarship--reverse-engineered 
in a parallel universe of faux academia--to give polluters power over 
government; and it is about more than a half a billion dollars in dark 
money spent to set up and run the whole sham enterprise.

  The attack on regulation began with an effort to revive the so-called 
nondelegation doctrine discarded by the Supreme Court almost 100 years 
ago. Like the major questions doctrine, the nondelegation doctrine 
allowed courts to strike down Agency rules when Congress wasn't 
explicit enough in delegating power. Polluters loved it. Scheme front 
groups like the Cato Institute--propped up by the dark money from the 
fossil fuel billionaire Koch family and from companies like 
ExxonMobil--sponsored research that argued for reviving the 
nondelegation doctrine. They organized conferences and seminars, 
lobbied legislators, and funded law groups designed to spread the idea 
far and wide.
  But ``major questions'' had one advantage. Years ago, on the DC 
Circuit Court of Appeals, Justice Breyer had used those two words once, 
in passing, in a lengthy law review article. They could seize that 
camouflage. And guess what. ``Major questions'' is just 
``nondelegation'' in disguise. If you don't believe me, let's go back 
to Justice Gorsuch in a concurrence from another case earlier this 
year:

       [T]he major questions doctrine is closely related to what 
     is sometimes called the nondelegation doctrine. Indeed, for 
     decades, courts have cited the nondelegation doctrine as a 
     reason to apply the major questions doctrine. . . . Whichever 
     the doctrine, the point is the same.

  Indeed. The point is that a Court captured by polluter interests will 
find any way it can to import polluter doctrine--cooked up in polluter-
funded doctrine factories--into the law of the land, and that is just 
what they just did in West Virginia v. EPA. For the polluters, mission 
accomplished.
  The Court that dark money built had already wreaked havoc in our law. 
Even before they got to six, they had run up 80 5-to-4 partisan 
decisions benefiting big Republican donor interests--80 5-to-4 partisan 
decisions benefiting big Republican donor interests. Now with six 
Justices, they have set about destroying precedent left and right, 
taking away the constitutional right of women to control their own 
reproductive decisions, blocking efforts to reduce gun violence, and 
now adopting new theories to empower polluters against public health 
regulation.
  The FedSoc Six's hatred for regulation isn't shared much outside the 
polluter-funded parallel universe. Most Americans appreciate 
regulations. They appreciate regulations that help make sure food and 
water are safe, that their air is clean to breathe, that medicines 
actually work, that markets operate honestly, that investors have real 
information, and that car seats protect you in a car wreck. The 
American people are right to sense that something is deeply amiss at 
the U.S. Supreme Court.
  A captured Court presents an unprecedented challenge to the other 
branches of government, but we aren't helpless.
  First, we need to start telling the truth about what is going on. The 
pattern is unmistakable, and people across the country need to 
understand this is not right; this is not normal. We can also pass laws 
like my DISCLOSE Act, which I hope will be coming up for a vote 
shortly, to shine light on the dark money donors who captured our Court 
in a long scheme.
  We can require real ethics requirements for Supreme Court Justices, 
just like all other Federal judges already have. Remember the ongoing 
ethics investigations against Judge Kavanaugh? They were dropped, not 
because they were resolved, not because they ended, not because he was 
found not culpable; they were dropped against Judge Kavanaugh because 
he escaped to the Supreme Court, where ethics investigations don't 
exist, so they had to shut down the ongoing investigations. That is a 
terrible signal.
  We can also require Justices to report gifts and hospitality, as all 
other judges do and all senior government officials do in the executive 
and legislative branches.
  There are many ways to push back against the new ``ruling class'' of 
``unaccountable ministers'' occupying the captured Court and to assure 
the American people that fairness and justice, and not the Court's 
deep-pocketed special interest friends, are what drives Court 
decisions.
  There is a lot to be done, and we need to begin. To be continued.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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