[Congressional Record Volume 170, Number 13 (Wednesday, January 24, 2024)]
[Senate]
[Pages S237-S240]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Madam President, let me get to the point at hand. I

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am back now for the 27th time to call attention to the rightwing 
billionaires' scheme to capture and control our Supreme Court and 
connect it to things that are going on at the Court right now.
  The billionaire elite that captured our Supreme Court wants to use it 
to attack Americans' ability--our ability as a people--through 
regulation, to protect our own health and safety, and the goal, mostly, 
is to benefit the big polluters in their midst.
  A word on regulation: As modern innovations have raised the standard 
of living in the United States and around the world and corporations 
have grown to international behemoths and billionaires have claimed for 
themselves a larger and larger share of the world's wealth, regulation 
has come to have a very important role.
  Big corporations' well-known motive to maximize profits, I should 
say, inevitably causes dangers to society. If you think of a big 
industrial plant that without oversight would leach chemical byproducts 
into the soil and water, poison wells, and spread cancer, you have got 
an idea of why regulation is needed.
  Over many decades, Congress created administrative Agencies to 
perform this task, staffed by scientists and other experts to use their 
expertise to manage and rein in these industrial dangers. The American 
system of regulation made our society safer and more prosperous. 
Period.
  As heavy equipment and dangerous chemicals came to mines and 
factories and construction sites, regulators implemented workplace 
safety standards. The meatpacking jungle led to sanitation requirements 
in production facilities. Automobile highway carnage produced seatbelts 
and airbags. Stockjobbing ``boiler rooms'' and insurance fraud provoked 
regulations to protect investors and insureds.
  What has been the result? Workplace illnesses, injuries, and deaths 
declined. Foodborne illnesses that used to kill thousands of people per 
year have been practically wiped out. Highways are no longer carnage; 
boilers rarely explode; and medications and stock offerings and 
insurance policies are all safer for consumers.
  And, by the way, in this environment of safety, corporate profits 
soared. The S&P 500 has returned an excess of 7,800 percent. Clean air 
and clean water and safe food and cars are actually good for business. 
Regulation is good. Regulation is a public good.
  But a gang of recalcitrant polluters is in the crew that captured the 
Supreme Court. And they want not only to pollute for free, they want to 
pollute without expert regulation.
  Well, even Republican Congresses wouldn't go for that so they turned 
to their captured, unaccountable Court.
  First, they got the Court to create a brandnew, so-called major 
questions doctrine, basically a too-big-to-regulate escape hatch for 
big polluters. And now they are using their captured Court to attack 
another precedent, the legal doctrine known as Chevron deference, which 
is pretty simple: Unless the law is clear, on technical matters courts 
defer to the Agency experts.
  This arrangement makes sense. Congress isn't suited and usually 
hasn't the expertise to make fine, technical determinations. So to prop 
up their attack on this commonsense principle, polluters have invented 
some fake arguments.
  A few years ago, these industries and their rightwing front groups 
began arguing that Chevron deference has a separation-of-powers 
problem. It may make all the sense in the world, but it has a 
separation-of-powers problem that courts must attend to because they 
say it gives unchecked and disproportionate power to the executive 
branch.

  The problem with that argument is that it is just not true. It is 
flatout false. Congress's legislative grant of administrative authority 
to Agencies comes with significant checks and balances. I am not going 
to go into all the details, but for starters, Agency heads are 
appointed by an elected President and confirmed by an elected Senate. 
And Agencies may not promulgate rules willy-nilly; they have to take 
public notice and comments.
  And Agency rules are subject to judicial review to make sure they are 
consistent with the rules and the Administrative Procedures Act and the 
public information and comment and the evidence. That helps make sure 
that regulations by law have to be both reasonable and consistent with 
the evidence and the facts.
  And in Congress, when all that is going on, we exercised direct 
oversight over these administrative Agencies. We do it through our 
oversight committees that have specific jurisdiction on specific 
Agencies. We do it through the appropriations process. Very often you 
see appropriations riders to control Agency behavior.
  And we do it through the expedited review of the Congressional Review 
Act, which we are seeing a lot of now in the Senate, and it allows for 
a very quick review by Congress of a challenged Agency rule. And, in 
fact, Congress has used that process to overturn Agency rules 20 times 
since 2001.
  The legal vehicle for the polluters' attack on Chevron comes in a 
case called Loper Bright Enterprises. As usual, where polluter 
interests are involved, this case brought out a rogue's gallery of what 
I would call the ``usual suspects''--front groups that have spent 
decades trying to dismantle the government's ability to regulate the 
big industries that secretly fund the front groups.
  They arrived at the captured Court at the end of a long process that 
began with industry-funded think tanks that reverse-engineered fringe 
ideas and legal theories that will serve rightwing donor interests. 
Then those fringe ideas and legal theories cooked up in the doctrine 
factories get taken into other think tanks and around captured trade 
associations and bounced around and put more and more into the public 
debate and, ultimately, once they have been credentialed by this echo 
chamber of front groups, they get pushed--these manufactured legal 
theories get pushed into courtrooms around the country, very often, 
through coordinated flotillas of secretly funded amicus briefs.
  There is a whole ecosystem of secretly funded corporate front groups 
that manage this whole process. It seems complicated, but it is less 
complicated than a piano and people know how to play pianos.
  Now, much of this is funded by the Koch Brothers--now one is 
deceased--but the Koch Industries, a political influence operation, 
which is a powerful, rightwing, dark money political network.
  Look at this Loper case. The lawyers who represent the petitioners in 
this case are working for free--supposedly--ostensibly for a public 
interest law firm called Cause of Action.
  This supposed public interest law firm discloses no donors and does 
not report any employees. As the New York Times discovered in this 
article, those lawyers actually work for Americans for Prosperity, the 
central battleship of the Koch Brothers' political front group armada.
  That armada, by the way, is very cozy with some of the far-right 
Justices of the Supreme Court. Indeed, ProPublica has reported that 
Justice Clarence Thomas has repeatedly flown out to serve as the 
celebrity draw for the Koch political operations fundraisers, including 
funding that landed at Americans for Prosperity. As is now standard 
practice in these cases, a flotilla of dark money front groups appeared 
as amici curiae--purporting to be independent but actually with 
enormous common funding and orchestration. These front groups are 
frequent flyers that spout anti-regulation arguments before the Supreme 
Court regularly, like, for instance, the major questions doctrine I 
mentioned earlier. From the creation of these doctrines in rightwing 
hothouses, through their amplification via rightwing front groups, to 
their insertion into legal arguments by rightwing amici, the common 
thread through the whole process is massive, secret funding from 
billionaire special interests.

  The amici supporting petitioners in the Loper case include the 
Buckeye Institute, the Cato Institute, the Competitive Enterprise 
Institute, the Landmark Legal Foundation, the Mountain States Legal 
Foundation, the National Right to Work Legal Defense Foundation, the 
New Civil Liberties Alliance, the Pacific Legal Foundation, and, of 
course, our friends at the U.S. Chamber of Commerce. All of them have 
received hundreds of thousands, sometimes millions of dollars from 
these rightwing donors--from DonorsTrust,

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from Donors Capital Fund, from the Koch family foundations, from the 
Bradley Foundation, and in some cases, from good old ExxonMobil itself.
  These two--DonorsTrust and Donors Capital Fund--are donor-advised 
funds that allow ultrawealthy interests to direct funding anonymously 
to their pet projects. They are essentially identity laundering 
operations. The money comes in from the donor who wants to be secret. 
It lands at DonorsTrust. They in turn give it under their own name. The 
recipient gets it, and there is no record of who the true donor was.
  DonorsTrust has been described as the ``dark-money ATM of the 
right,'' and, with Donors Capital, it has laundered over a third of a 
trillion dollars--a third of a trillion dollars--into climate denial 
operations.
  Many of these same amici also received Koch Family Foundation funding 
and Bradley Foundation funding. Those are two other top-10 funders of 
climate denial. Fossil fuel corporations like ExxonMobil have also 
directly funded some of these amici.
  This is an operation. This is a part of a scheme.
  ExxonMobil has given significant money to the Cato Institute, the 
Competitive Enterprise Institute, the Landmark Legal Foundation, and 
the Mountain States Legal Foundation, as well as the Pacific Legal 
Foundation--and that is what we know. There could be other money that 
went through DonorsTrust, for instance, and into these groups and the 
ExxonMobil name was laundered off the funding.
  Some of these amici also received funding from groups affiliated with 
Leonard Leo. Leonard Leo has been the operative for the billionaires in 
the Court-capture operation.
  This is a chart of some--some--of the front groups that Leo 
coordinates.
  This question of capturing the Court in order to undermine public 
safety regulations? Trump White House Counsel Don McGahn actually 
called these two operations ``two sides of the same coin.'' We have it 
from inside the White House that these schemes are coordinated.
  The Loper amicus, Advancing American Freedom, received $1.5 million 
from Leonard Leo's Concord Fund--this group--between 2020 and 2021. 
Leo's Concord Fund operates under the fictitious name Judicial Crisis 
Network and, operating under that fictitious name, spent millions of 
dollars on Court capture--for instance, on advertisements for the 
rightwing nominees to flood the airwaves with TV ads supporting them.
  By the way, it also supports Republican State attorneys general, who 
then challenge Federal regulations the billionaires don't like before 
the sympathetic judges who were put on courts through this operation.
  Just to give you an idea, the Concord Fund and the 85 Fund are the 
two kind of base entities. They operate out of the same location with 
overlapping staff and funders and directors. I would argue that the 
corporate veil between the two could be pierced with a banana.
  The operation of these two entities--a conjoined 501(c)(3) and 
501(c)4--then has these different legs. Each one of these six legs is a 
fictitious name--a fictitious name filed under Virginia corporate law--
through which these entities operate. It is not a separate thing. It is 
just a fictitious name for--in this case, Judicial Education Project 
for the 85 Fund.
  So these eight organizations are, in effect, the same organization, 
and out of it, money gets pumped up to these entities, which are 
Leonard Leo's means of extracting wealth for himself for his services 
provided in making sure that this piece of his operation can go forward 
and help capture the Court.
  So that is the background of all of this.
  So when the Judicial Crisis Network shows up here, it is a pretty 
significant tell that there is more going on here than just independent 
organizations bringing their views to the Supreme Court.
  It is not enough to flood the Supreme Court with this fake onslaught 
of coordinated amici curiae; there has also been a coordinated 
editorial campaign. In fact, it has been hard to miss the editorial 
campaign launched to create favorable ideological terrain for the 
captured Court's Justices to end Chevron deference.
  The rightwing apparatus has cranked out op-eds in just about every 
major publication across the country in the past week. It has been a 
surge of propaganda pushing that falsehood about unaccountable 
bureaucrats.
  One particularly odious editorial appeared in the pro-polluter Wall 
Street Journal editorial page. I refer to it just generally as ``the 
polluter page'' because that is its reason for being. It was written in 
the Wall Street Journal editorial page by Mr. David Rivkin.
  Mr. Rivkin is described as follows by the Wall Street Journal:

       Mr. Rivkin served at the Justice Department and the White 
     House Counsel's Office in the Reagan and George H.W. Bush 
     administrations.

  But he has done so much more. For instance, he is Leonard Leo's 
personal lawyer. This guy, with what my office refers to as the ``Leo 
bug'' of phony front groups, has this guy, who authored the Wall Street 
Journal editorial, as his personal lawyer.
  By the way, Rivkin is the same guy who several months back gave 
Justice Alito a very friendly interview right in this Wall Street 
Journal editorial page to justify Alito's undisclosed travel on a 
private jet on a freebie trip accompanied by--oh--Leonard Leo, no less. 
He is the same guy who, in a current case before the Supreme Court, 
before Alito, who has not recused himself, is attempting to secure an 
enormous tax giveaway for billionaires.
  Rivkin's cosigner, Mr. Grossman, Andrew Grossman, is described as ``a 
senior legal fellow at the Buckeye Institute and an adjunct scholar at 
the Cato Institute.'' OK, that is a pretty fair description.
  By the way, if you go back here--there is the Buckeye Institute, and 
there is the Cato Institute. They have already briefed the case. The 
lawyer who writes the brief is now just pumping his own amicus brief in 
the Wall Street Journal editorial page with the lawyer for Leonard Leo, 
who did Justice Alito the big favor of trying to head off a Senate 
investigation into Alito's travels. So it is a pretty rich mix.
  If you look at all of this, what you discover is that this whole 
scheme is actually pulled off by a very small number of people on the 
billionaires' payroll. They are very busy constantly switching hats and 
running multiple front groups out of the same enterprise so that it 
looks like there is more, filing multiple briefs in a Supreme Court 
case so it looks like there is more, but it is actually a pretty small, 
billionaire-funded operation. It has just been diabolically effective, 
and it has begun to pay off for the billionaires.
  In West Virginia v. EPA, the Supreme Court hobbled Agency authority 
to regulate for our public health and safety by adopting what they 
called the major questions doctrine--the same one I mentioned earlier--
and that in turn has prompted an onslaught of challenges to 
administrative regulatory authority from which the administrative law 
legal landscape is still reeling. There is enormous upheaval from that 
novel doctrine imported by the billionaire-selected Justices of the 
Supreme Court into American law.
  It would actually add insult to that injury for the Court to break 
even more precedent by attacking Chevron. Frankly, they may not really 
even need to because the major questions doctrine is such a powerful 
weapon in their hands against administrative safety regulation that 
they may not actually need to do much damage to Chevron. They have a 
weapon. But it looks from the argument like the Court is actually 
poised to attack Chevron deference. If it does, it not only will add to 
the dangers to Americans' health and safety, against which regulation 
protects, but it will also move the unaccountable Supreme Court further 
into the policymaking function properly left under the American system 
of government to the elected political branches.
  In short, it is a power grab by the unelected judicial branch at the 
behest of and for the benefit of polluter billionaires, and they have 
done this on the specious grounds--the false grounds--that these 
administrative Agencies are unaccountable.
  Well, even if that claim were true, it is hardly solved by moving the 
locus of decision to the least accountable part of the government--to 
the U.S. Supreme Court. If your problem is that

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decisions are being made in unaccountable fashion by bureaucrats, then 
moving it to even less accountable judges is not a solution to the 
problem.
  But the fact of the matter is that they are wrong about the 
bureaucrats because of the CRA, because of the Administrative 
Procedures Act, because of the appropriations process, because of 
congressional oversight, and because of executive appointment to the 
control of these Agencies. It just ain't so, but it is a lie that is 
repeated and repeated and repeated and begins to be echoed by the 
Justices of the captured Court.
  To sum up, by all appearances, a Koch operation-funded legal theory 
supported by Koch operation-funded amici is about to be deployed by 
Koch operation-funded lawyers to convince Koch operation-funded 
Justices to achieve a longstanding goal of Koch industries: the ability 
to pollute more easily and more cheaply.
  To twist American law through those techniques for that purpose is a 
deeply degraded thing. It would be a tragedy for the American people. 
But do you know what? It is the scheme in a nutshell. It is why all the 
effort was put together--the hundreds of millions of dollars were 
spent--to capture and control the U.S. Supreme Court for the benefit of 
a small cabal of creepy billionaires.
  To be continued.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEE. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.