[Congressional Record Volume 169, Number 171 (Wednesday, October 18, 2023)]
[Senate]
[Pages S5078-S5080]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. SUPREME COURT
Mr. WHITEHOUSE. Mr. President, I am rising today for the 25th time to
address the multifaceted dark money scheme to capture and control our
Supreme Court. We will look today at how the creepy billionaires who
captured the Supreme Court get their message through to the Justices
they helped plant there.
That, of course, is the last leg of the capture operation. First, you
have the so-called Federalist Society list, purportedly created by the
Federalist Society for former President Donald Trump to pick Supreme
Court Justices from. Bad enough if that were true--a secretive,
anonymously funded, private group picking Supreme Court Justices while
accepting big, secret contributions. What could possibly go wrong? But
it is actually worse. The Federalist Society can show no official
process to cook up the list--no agenda item, no vote, no nothing. It
was done in some back room secretly by the Federalist Society's Leonard
Leo, the operative of the creepy billionaires who fund this endeavor.
The Federalist Society did let Trump use the ``Federalist Society''
name for cover on the list, as if it was their list, but it wasn't.
After that step, the fake list, came the billionaire-funded campaign
to get the Senate to confirm the Federalist Society Justices. This part
of the operation ran through another dark money front group, the
Judicial Crisis Network, conveniently located just down the hall--in
the same building, on the same floor--from the Federalist Society.
``Judicial Crisis Network'' is the fictitious name for yet another dark
money front group. And, of course, millions in dark money were poured
into Senate Republican political coffers from the same billionaires,
and--no surprise--Republican Senators voted to confirm even deeply
troubled Justices, and now there they sit on the Court.
So let's say you are a billionaire who funded all of this. You have
your handpicked Justices on the Supreme Court. How are they supposed to
remember what you want? Well, easy--you tell them.
Queue the front groups that file briefs at the Supreme Court as amici
curiae--Latin for ``friends of the court.'' They file them in
coordinated flotillas, usually of about a dozen. But where it is a
really big deal to the dark money billionaires, they have sent in more
than 50 of these briefs.
In the case where it was over 50, it was at the certiorari stage,
early in the proceedings, to make sure the chosen Justices got the
message. That case was Americans for Prosperity Foundation v. Bonta. It
was about disclosing donors behind dark money front groups. After the
deluge of over 50 front group amici, the Federalist Society Justices
let nonprofits--known as 501(c)(3)s--hide their donors even from
sovereign States where they operate and which have a responsibility to
police them for fraudulent abuse of the tax system.
This decision added more secrecy to the latest and greatest secret
political influence technique, which is to pair a dark money 501(c)(3)
with a dark money 501(c)(4) entity. This is--no surprise--precisely the
secretive influence technique that the creepy billionaires deployed to
get those chosen Justices on the Court.
Well, we have all witnessed the sordid saga of theatrically grotesque
gifts and free travel that rightwing billionaires have bestowed on
certain Supreme Court Justices. That is connected here. The
billionaires who fund the Justices' gifts and entertainment also fund
front groups that come in to tell the Justices what to do.
So the backdrop of the capture apparatus is that billionaires choose
the Justices, fund the campaigns for their confirmations, and then send
in flotillas of billionaire-funded front groups to give instructions.
With that backdrop, let's look at recent and coming cases and how those
front groups are doing.
Last term, the Federalist Society Justices handed several major wins
to the front groups and their backers. One of these wins came in a case
called Sackett v. EPA. It was the latest assault on the EPA's power to
clean up our environment and hold polluters accountable.
Many of the big-spending, rightwing billionaires owe their fortunes
to the polluting fossil fuel industry, so it is no surprise that their
front groups are out to weaken the EPA.
The EPA has responsibility under the Clean Water Act to make sure
that our country's water remains safe and clean. Naturally, the
polluters and their front groups hate this, so in Sackett, they asked
the Court to narrow as much as possible which waters the EPA could
protect under the Clean Water Act.
The front groups had their fingerprints all over this case. To start,
the attorneys who brought the case came from the Pacific Legal
Foundation. Because it is a dark money group, it is impossible to know
exactly who funds the Pacific Legal Foundation, but in the past, it has
received money from the likes of ExxonMobil, the Koch Brothers'
political apparatus, and other groups who fund climate denial.
A great many of these cases that bring in the flotillas of
billionaire-funded amici are not brought up through regular litigation;
they are brought by these front groups, teed up by front groups who
bring in plaintiffs of convenience to bring a particular question up
before the captured Court.
At the Supreme Court, at least 10 other far-right, front group amici
all urged the Court to undermine the Clean Water Act. These amici
included groups like the U.S. Chamber of Commerce, one of the biggest
mouthpieces for the fossil fuel industry, and the Americans for
Prosperity Foundation, which we just spoke about, part of the Koch
Industries' fossil fuel political operation.
I went over some of the briefs this morning in the Environment and
Public Works Committee when we took a look at the Sackett case, and I
will just do a brief summary right now.
The Pacific Legal Foundation has received money from Exxon, various
Koch political foundations, DonorsTrust, the Bradley Foundation, and
the Sarah Scaife Foundation.
Also in the case was the Americans for Prosperity Foundation, which
has been funded by the Koch political operation, DonorsTrust, the
Bradley Foundation, and the Sarah Scaife Foundation.
The Cato Institute was in the case with funding by the Koch political
operation, Donors Capital, DonorsTrust, and the Bradley Foundation.
Something called the Claremont Center for Constitutional
Jurisprudence chimed in with funding from Donors Capital, DonorsTrust,
the Bradley Foundation, and the Sarah Scaife Foundation.
Liberty Justice Center came in with funding from DonorsTrust and the
Bradley Foundation.
NFIB Small Business Legal Center came in with funding from Donors
Capital, DonorsTrust, and the Bradley Foundation.
Atlantic Legal Foundation came in with funding from the Bradley
Foundation and the Sarah Scaife Foundation.
Mountain States Legal Foundation came in with funding from the Koch
political operation, DonorsTrust, Donors Capital, the Bradley
Foundation, and the Sarah Scaife Foundation.
Southeastern Legal Foundation came in with funding from DonorsTrust,
Bradley Foundation, and Sarah Scaife Foundation.
The Washington Legal Foundation came in with funding from the Koch
political operation, Donors Capital, DonorsTrust, the Bradley
Foundation, and the Sarah Scaife Foundation.
So the litigant and nine amici were all funded by the Kochs, by
DonorsTrust and Donors Capital, and by the Bradley Foundation and the
Scaife Foundation. They could just as easily have filed briefs in the
name of the Koch political operation, DonorsTrust and Donors Capital,
and the Bradley Foundation and the Sarah Scaife Foundation or even
filed one brief filed by all of those entities, but instead they
created this fake machinery of front groups, creating the illusion of
multiplicity and the illusion of independence, when, in fact, these
things are played like piano keys on a piano.
[[Page S5079]]
By the way, if they had actually tried to file a brief in the name of
DonorsTrust and Donors Capital, it would have been a little bit weird
because those are not entities that have any real role in the world
other than to scrub the identities off of dark money donations to
rightwing groups. So if you don't want your name on an expenditure, you
give it to Donors Capital, and they then pass it on to the group. The
group reports that they got it from Donors Capital, and you get to walk
away hands-free, without any attribution or accountability.
So not only are these multiple players; they tend to switch around in
this scheme. So let me add that Americans for Prosperity Foundation was
the petitioner in the case with the 50-plus dark money amici that came
in. There, the scheme was to get the chosen Justices to protect dark
money for 501(c)(3)s, and needless to say, it worked.
But back to Sackett. Five of the six Republican-appointed Justices
got the message sent by these front groups and adopted the narrowest
interpretation of the Clean Water Act that they could get away with.
Millions of acres of wetlands are no longer protected by the EPA--
another win for polluter interests; another loss for the American
people; another successful direction by a rightwing, dark money, front
group flotilla.
Sackett wasn't the only case where the creepy billionaires scored big
at the Court last term. Another win came in the student loans case,
where the Federalist Society Justices threw out President Biden's plan
to cancel student loan debt for millions of struggling borrowers.
Showing up in that case was another double-digit flotilla of far-
right and industry-funded front group amici, with customary repeat
players like the Kochs' Americans for Prosperity Foundation, the
Chamber of Commerce, and the Buckeye Institute.
In this scheme, even the front groups have front groups. So Leonard
Leo's Judicial Crisis Network is actually the fictitious name of
another front group called the Concord Fund, and the Judicial Crisis
Network, which is the same group that Leo used to help confirm the
handpicked Justices, in turn propped up a new front group led by Mike
Pence, funding it with more than $1 million. So the front group's front
group's front group filed a brief in the student loans case.
You cannot make this stuff up.
Well, naturally, the Federalist Society Justices delivered what these
groups were asking for on behalf of their billionaire benefactors, but
the real victory for the front group amici in this case was how the
Justices struck down the plan.
The Federalist Society Justices relied on something called the major
questions doctrine--a doctrine they first deployed 2 years ago at the
behest of fossil fuel groups in a case called West Virginia v. EPA. The
basic idea is that if a judge thinks an Agency regulation is too big or
too important, the judge gets to strike it down. It is the perfect tool
for billionaires to use billionaire-picked Justices rather than Agency
subject-matter expertise to stop regulations they don't like.
A whole separate scheme speech could be devoted to the hothouse
``doctrine factories'' in which notions like the so-called major
questions doctrine are seeded, fertilized, watered, and grown.
In West Virginia v. EPA and in the student loans case, the Federalist
Society Justices took the doctrine from dark money-funded hothouses
like the Federalist Society itself and replanted it into American law.
It is now law. The front groups, of course, with that opening, then
began challenging even more regulations left and right using this
supposed doctrine. And, no surprise, the Agency they targeted the most
is the EPA.
That brings me to the pending wave of front group action at the
Supreme Court. One case that has received a lot of attention is Moore
v. United States. That case centers on a narrow legal issue related to
the Republicans' 2017 tax cuts for the rich. But the billionaires'
front groups want far more. They want the chosen Justices to shield the
billionaire elite from paying taxes by preemptively declaring
unconstitutional taxes that would more directly target the
billionaires' massive fortunes.
Well, given what a boon that would be for the creepy billionaires, as
you can imagine, the amicus flotilla is out in full force. At least 14
far-right billionaire front groups have surfaced in Moore. And like in
Sackett, a front group is litigating the case: the Competitive
Enterprise Institute, it is called, which has a long history of
rightwing, billionaire funding.
One side note about this case, remember when I said there was overlap
between the rightwing billionaires who fund these groups and the
rightwing billionaires who lavished Justices Thomas and Alito with
luxury gifts? This case is exhibit A, with multiple rightwing front
groups funded by billionaires Paul Singer, Harlan Crow, and the Kochs,
who are billionaires at the center of the ethics mess of secret
freebies for certain Justices at the Court.
It actually gets worse. In Moore, the lawyer litigating on behalf of
the billionaires' cause is the same lawyer who conducted the so-called
interview with Justice Alito in the Wall Street Journal editorial page
about my Supreme Court ethics bill and our Senate investigations on
Judiciary and Finance into the undisclosed gifts to certain Justices.
That interview propped up for the lawyer's client Leonard Leo the
argument that we could not investigate gifts Leo orchestrated to
Justice Alito.
You need a diagram. You cannot make this stuff up.
Litigant in Moore, lawyer to Leo, interviewer of Alito--that is a
whole lot of hats for that one lawyer's head. The more you look at this
operation, the more you see it as a big shell game with multiple front
groups that can be moved around and multiple operatives switching
around to deliver results for this billionaire elite. It is a scheme.
Another case the billionaires are targeting this term is Loper Bright
Enterprises v. Raimondo with, yep, another attack on the basic
foundations of Agency regulation. It is not enough that their home-
brewed major questions doctrine has just been made law by their chosen
Justices. They want more. And, of course, a flotilla of front group
amici has been marshaled to urge on the Federalist Society Justices.
I filed a brief in that case with several colleagues documenting
these amici's industry connections. Many have received hundreds of
thousands--even millions--of dollars from far-right and polluter
interests that would benefit from weaker regulations. As usual, they
are repeat performers who show up in case after case to feed the Court
arguments propagated in rightwing hothouses.
That is the Court capture process: Billionaire-funded groups cook up
legal theories to help the billionaires; billionaire-funded litigation
propped up by billionaire-funded flotillas of front groups tees up the
Justices to adopt the hothouse theory. And then, after the Justices
adopt the hothouse theory, the front groups bring more cases to attack
more regulations. Rinse and repeat, until you have tied up or knocked
down every regulation in your polluting way.
As with a lot of the mess at the Supreme Court right now, the
Justices could do a lot to clean this up by themselves. They could
require real disclosure of who is behind these flotillas of phony front
groups. They could turn away cases that look like faux litigation
brought by political front groups behind plaintiffs of convenience.
They could adopt ethics procedures that allowed basic factfinding into
the swampy mess of billionaires, front groups, free secret gifts, and
the ubiquitous fixer Leonard Leo. And, of course, they could stop
granting the front groups' wishes time after time after time.
A new term of Court presents a new opportunity for the Court to
recommit itself to deciding law and not just doing the bidding of
creepy billionaires and their phony front groups. We too often fixate
on the awful decisions that have come out of this Federalist Society
majority. When we do, we overlook the nasty little web of front groups
lurking behind those awful decisions.
But the front group web is an important part of the story, an
essential element of the Court capture apparatus, and a key element of
the scheme. The web should not be allowed to hide in plain view simply
because we don't
[[Page S5080]]
bother to keep track and connect the dots.
To be continued.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CRUZ. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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