[Congressional Record Volume 170, Number 50 (Thursday, March 21, 2024)]
[Senate]
[Pages S2502-S2504]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am here for what is No. 30 in my 
series of ``Scheme'' speeches, about the scheme to capture the Supreme 
Court. And I thought this would be a good time to give sort of a quick 
overview of where we have been since most of my speeches have been 
rifle-shot speeches at individual issues that the Court has caused us 
to have to face up to.
  So the fundamental problem here is that we have a Supreme Court that 
has been captured by rightwing special interests, and we see this in 
decision after decision after decision. And it is affecting the lives 
of ordinary Americans all over.
  When I say that this is a Court that has been captured by rightwing 
special interests, what do I mean? Well, there is considerable research 
out there and considerable literature out there about a phenomenon that 
is sometimes called Agency capture, and it is sometimes called 
regulatory capture. It is the same thing. It is the capture of 
regulatory Agencies. And you can look it up in your library. You can 
look it up on the internet, and you can get a sense of the extent to 
which this is recognized in the economic literature, recognized in the 
administrative law literature. And it is a frequent avenue, 
unfortunately, of corruption into government decision making.
  And if you want an example to think about, you could imagine a 
railroad commission whose job is to set rates for the railroad, back in 
the era of the railroad barons, and the railroad barons have chosen who 
is on the railroad commission. So the railroad commission isn't serving 
the public. It is doing exactly what the railroad barons want. That, in 
a nutshell, is what ``Agency for regulatory capture'' is all about.
  And one of the things that we have discovered in the course of this 
is that the effort to capture the Court has been a very expensive 
effort. This is no small or casual thing.
  True North Research has done a lot of this research. And so far, they 
are up to finding $580 million that have been spent on this Court 
capture operation. It is not always easy to figure out because the 
money flows from one place to another through indirect sources and into 
entities that obscure who the original donor is. It is complicated. But 
$580 million is a lot of money, and even very, very, very rich 
rightwing billionaires aren't going spend that much money on a whim. 
They are going to spend that kind of money because they are going to 
get a return on their $580 million investment.
  So that is the fundamental problem we are facing--a Court captured by 
special interests in the same way that, in the old days, Agencies and 
Commissions were captured. But that technique jumped the rails and was 
applied to our Supreme Court and with a very, very robust scheme behind 
it, with at least $580 million spent to accomplish these goals.
  So there you go. You have got your captured Court. You have spent 
your $580 million. But can you really expect the judges that you helped 
put on the Court to remember exactly what it is they are supposed to do 
in every case? No. That is pretty hard, even for very bright judges.
  So the next thing you have to do is figure out how you get the Court 
to do what it is told and pass on the message of what it is that you 
want. You have captured a Court. How are you going to tell it what the 
outcome is that you want?
  So this is a Court that is doing what it is told, and the manner in 
which it is told is actually fairly plain view, in some respects, 
because what happens is that the dark money billionaires fund groups 
that file briefs. And it is not just one brief. They file briefs in 
little flotillas. Usually the number is 10 or 12. In a case really 
important to them, we have seen the number get as high as 50. But that 
is pretty rare. So amici curiae--Latin for ``friends of the court''--
are groups that are allowed to file briefs in the Supreme Court, even 
though they are not a party to the case.
  And they come in. And let's say that there is a dozen of them. They 
are coordinated. They send the same common message, and that way the 
Justices who have been put on the Court through this Court capture 
scheme are kept up to date on precisely what it is that their big 
donors want.
  Now, when I say ``fake amici,'' I mean that these are groups that 
don't very well disclose who is behind them. It doesn't say: We are 
here from Koch Industries. We are here from ExxonMobil.
  It is intermediating groups that have mysterious sounding names. I 
will give you one example right here. This is a group of organizations 
managed by a guy named Leonard Leo, who was basically the fixer--the 
factotum--of the rightwing billionaires who spent the $580 million to 
capture the Court.
  You need an organizer. You need the orchestrator. You need a guy who 
runs around and does this stuff, and Leonard Leo is the guy. And he has 
his own little group up here of companies that report to him and pay 
him. This is how he gets money out of this scheme.
  But down here, he has this array of front groups that he and his 
allies control. So 85 Fund and Concord Fund actually exist. They are 
corporate entities under Virginia corporate law.
  These other entities--Judicial Education Project, Honest Elections 
Project, Free to Learn, Free to Learn Action, Honest Elections Project 
Action, and the Judicial Crisis Network--actually don't exist. What 
they are, under Virginia law, is fictitious names. That is the legal 
term for what they are--fictitious names for these entities.
  So in one of the cases in which these phony front group amici 
appeared to tell the captured Justices what it was that their donors 
wanted, Honest Elections Project filed the brief.
  It did not identify itself in its brief as being a mere fictitious 
name. It did not identify itself as being a mere fictitious name of 
this 85 Fund group. It did not identify that 85 Fund group as a

[[Page S2503]]

corporate twin to this Concord Fund group. The 85 Fund is what is 
called a 501(c)(3) group. The Concord Fund is a 501(c)(4) group. It is 
customary in political influence operations to have a twin 501(c)(3) 
and 501(c)(4) sharing office space, sharing personnel, sharing donors, 
sharing board members. It is very hard to find a corporate veil between 
the two that is actually real.
  What they also did not disclose is that the ``Honest Elections 
Project,'' as a fictitious name of the 85 Fund, tied it to the Concord 
Fund, which operates under the fictitious name ``Judicial Crisis 
Network.'' It is through this fictitious name that the billionaires 
spent huge amounts of money on TV advertising to stop the nomination of 
Judge Merrick Garland to the Supreme Court and to push for the 
confirmation of Justices Gorsuch and then Kavanaugh and then Barrett 
under the Supreme Court, with individual checks written to support the 
campaign as big as $15 million and $17 million.
  These are serious people who are writing serious checks to try to 
have a serious effect on the Court, and they have, but it is hidden. 
Judicial Crisis Network ran ads for Justices who were reading Honest 
Elections Project briefs without explaining the connection between the 
two. So the whole thing is very slippery, and that is why I use the 
word ``fake'' about it.
  Here is another thing about it. This is the appendix that I added to 
a brief that I wrote in the Seila Law v. Consumer Financial Protection 
Bureau case. It shows individual entities that filed amicus briefs in 
that case, and it showed their funders. If you look at it, it is 
basically one big blob through which billionaires send money from these 
entities into these entities.
  Donors Trust has really no purpose in life other than to hide the 
identity of donors. It is an identity laundering machine to give to all 
of these things so that the Court doesn't know and the public doesn't 
know that, in effect, it is the same people behind this array of front 
groups. It makes it look like there are a whole bunch of different 
things.
  New Civil Liberties Alliance and the Buckeye Institute and the 
Southeastern Legal Foundation, Pacific Legal Foundation--oh my gosh, 
they must be from all over the country. Not so much. They are fund 
groups for the funders who run money through these outfits to prop up 
these outfits.
  So you have your captured Court, and you have your front groups to 
tell the captured Court what it is to do. What you end up with is that 
these fake amici propose a whole lot of factual findings for the Court, 
and you end up with fake factfinding.
  If you look at some of the worst decisions that the Supreme Court has 
rendered--Citizens United and Shelby County--both of them stood on fake 
factfinding. They asserted things to be true that were not true, and 
those things were essential to the logic of the decision. The Court 
couldn't have gotten to the outcome it wanted to get to without those 
pylons, if you will, of fake fact.
  They have opened up a whole new arena for fake factinding with a new 
so-called history and tradition analysis they brought to bear in Dobbs 
on reproductive rights cases and in Bruen on gun rights cases, because 
you can fake your way through history and tradition very easily. You 
just go back into history, and you cherry-pick the facts you like. Real 
historians will come in and say ``Well, that was ridiculous,'' but it 
doesn't matter--you got what you wanted. The ability to do that fake 
factfinding is going to get worse, not better.
  Citizens United and Shelby County are the worst of all. These two 
decisions have really hammered our democracy--Citizens United by 
letting unlimited amounts of dark money into our elections. We are up 
to $1 billion in dark money now. Don't tell me those people are 
spending money just for the sake of the goodness of the country. No. 
They have specific things they want out of politics, and they are 
willing to spend $1 billion to get them and ordinary citizens be 
damned.
  Shelby County basically gutted the key enforcement provision of the 
Voting Rights Act, and a flood of legislation in formerly protected 
States flowed through, shutting down access to the ballot on behalf of 
mostly minority voters--in fact, in one case, targeting minority voters 
with what the Court said was surgical precision.
  What are we doing about all that? That is a hell of a problem set. 
What are we doing to try to get to the bottom of that? Well, we are 
doing a couple of things.
  First, we are trying to educate the public. We are trying to let 
people know what is going on. This is not a normal Court. This is not 
the way courts ordinarily behave, and this is certainly not the way the 
Supreme Court should be behaving.
  Second, we are trying to investigate, trying to figure out what the 
heck is going on, to get to the bottom of this mess. How did this 
happen, and what are the problems?
  Third, we are legislating. My bill to clean up the mess at the 
Supreme Court has cleared the Judiciary Committee, and we are hoping 
for a vote on that in this Congress. I doubt it will get much support 
on that side, but I think it is very important to have a recorded vote 
that shows who is on the side of the billionaires behind the Court 
capture operation and who would like to have a little bit of clarity 
and transparency and have Justices meet the same ethics standards that 
other Federal judges meet. It is not a peculiar standard; it is what is 
required of other Federal judges.
  So the education piece is working tolerably well, I would say. People 
get it. I think we are down to 18 percent of Americans who have real 
confidence in the integrity of the Court.
  I put a lot of work out there to document what is going on, and if 
anybody is interested, you can look up my name as an author in the 
Harvard Law & Policy Review and find my article there. You can look up 
my article that the American Constitution Society published. You can 
look up my Harvard Journal on Legislation article. You can look up my 
Yale Law Journal article. My most recent one was in the Ohio State Law 
Journal on this whole scheme of fake factfinding propping up Supreme 
Court cases and how they violated the rules of factfinding in order to 
violate factfinding.

  There is a lot of research out there. These are all publications that 
get reviewed. They have all been cleared by the publisher, so it is not 
like I am making crazy stuff up. These have been out there in some 
cases for years, and everybody who wants to criticize them has had 
every chance. They seem to have stood up very well on their facts.
  What are we doing on investigation? Well, the Finance and Judiciary 
Committees are looking into the problems with the Court.
  Chairman Wyden of the Finance Committee has developed evidence that 
the motor coach loan to Justice Thomas was never paid back. In fact, 
not a dollar of principal was ever paid on that loan. For a period of 
time, Justice Thomas paid interest to the individual who made the 
quarter-of-a-million-dollar loan to him, and then he stopped paying 
interest, and he never paid any principal. So we are looking into what 
that means. What does that mean from the point of view of Justice 
Thomas's disclosure about gifts and income? What does that mean with 
respect to his tax filings because under American law, the forgiveness 
of a debt is income that needs to be declared. Was that done? That is 
what the investigation is looking to find out.
  The second has to do with Harlan Crow's yacht--also famous from 
Justice Thomas's vacations. This is the yacht that took Thomas around 
Indonesia for 10 days or so in what has been valued at a quarter-of-a-
million-dollar vacation. Not bad.
  Well, it turns out that the Crow yacht has been going around the 
world declaring itself to be a pleasure yacht in some places and in 
other places, declaring itself to be a yacht for charter. Well, the 
difference between a pleasure yacht and a yacht for charter is that a 
yacht for charter gets to deduct expenses. Sure enough, it looks like 
Mr. Crow has deducted $8 million--$8 million--in tax deductions off 
what he often says and what the boat's shell corporation often says is 
just a pleasure yacht. You don't get to deduct the expense of your 
pleasure yacht. So it is an important distinction. They say both 
things, and we are investigating which is true and whether false 
statements were made.
  Then in the Judiciary Committee, under the leadership of Senator 
Durbin, we had the authority to obtain

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subpoenas. We were able to subpoena the shell corporation that owns the 
yacht. We were able to subpoena the shell corporation that owns the 
private jet. We were able to subpoena the shell corporation that owns 
the Adirondack estate where that famous painting was made of Harlan 
Crow, Justice Thomas, Leonard Leo, and the rest of the little crew 
hanging out together.
  So that is all under active investigation, and that is not going to 
stop, I can assure you.
  As I mentioned, the legislation passed the committee. It passed it on 
July 20, 2023. We are looking forward to having a robust discussion 
about Supreme Court ethics when this is brought up on the Senate floor 
for a vote in Congress.
  Finally, we have had an interesting set of successes, I guess I would 
call them, at this point with the Judicial Conference. The Judicial 
Conference is the body that runs the judicial branch of government. It 
is its own sort of board of directors. It is made up of the chief 
judges of all the different circuit courts of appeals and a chief judge 
from a district court in each circuit. It is a very august body.
  Here are some of the things they looked at. They looked at what I 
call the ``Scalia trick.'' The ``Scalia trick'' was to get someone to 
tell a resort owner to invite Scalia on a free vacation with a personal 
invitation on the free vacation and then not disclose it as a gift 
because it was ``personal hospitality.''

  Well, when that was pointed out to the Judicial Conference, they blew 
that scheme to smithereens because it is obvious that arranging a 
personal invitation to a resort owned by somebody you don't even know 
does not amount to the kind of personal hospitality--like family 
trips--that is the basis for allowing nondisclosure of big gifts.
  The question before them now is, when they did that, was that a 
clarification of the law or was that a new rule? It took Scalia's 
lawyers about a nanosecond to jump in and say: Oh, this is a new rule, 
and we are going to comply with it.
  He doesn't usually talk about this stuff, so you think about, why did 
the lawyers pop up with that? Well, the reason they popped up with that 
is they wanted to say it was a new rule because if it was a 
clarification, which is what the Judicial Conference said it was, they 
would have to go back and amend all his previous filings that were 
filed in violation. That would be a fine mess.
  So Justice Thomas has a lot at stake in that determination, and that 
determination is before the Judicial Conference right now.
  You are looking at this problem of fake amici that I described. They 
have agreed that the rule is inadequate and that it is not appropriate 
for parties and the public not to know who is really in the courtroom 
but to have these masks--these front groups, these fakes--showing up 
without disclosing who is really behind them.
  They are still investigating what I call Thomas-Crow 2.0. There was a 
first round of billionaire gifts from Harlan Crow to Justice Thomas 
back in sort of 2009, 2010, 2011 for yacht and jet travel. That was 
investigated by the Judicial Conference, and then the matter was 
closed. Then he went back and did it all over again. So they are still 
investigating the Thomas gifts from Harlan Crow, second round, 2.0.
  Then I have asked them to look at something Justice Alito did, which 
was to offer an opinion in the Wall Street Journal editorial page about 
a matter that was not only likely to come before the Court but was 
virtually certainly headed to the Court. He offered an opinion, which 
is something they say in their confirmation hearings they are not 
allowed to do, but he did.
  Worse still, it wasn't just about some free-range topic; it was about 
a specific dispute, an ongoing dispute. He took sides in an ongoing 
dispute. Worse still, he took sides in that ongoing dispute at the 
behest of a lawyer on the other side in that dispute. By the way, that 
lawyer represented his friend Leonard Leo, so there was a personal 
connection, and the gravamen of the dispute was our ability to find out 
about free gifts of travel to Justice Alito. So at the end of the day, 
his improper opinion protected him from public scrutiny for gifts he 
should not have been receiving.
  So all of that is before the Judicial Conference. I want to express 
my appreciation to the Judicial Conference for their diligence in doing 
this. Obviously, this is not the way they would like to spend their 
time, but the Supreme Court has not given them much choice by 
continuing to engage in all of this bad behavior, and it is all 
related, and it is all part of the scheme.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.