[Congressional Record Volume 170, Number 115 (Thursday, July 11, 2024)]
[Senate]
[Pages S4541-S4543]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am back now for the 33rd time to 
keep shining a little light on the rightwing billionaires' covert 
scheme to capture and control our Supreme Court.
  As a result of that scheme, the Court's rightwing just took a 
wrecking ball to the government's ability to protect Americans from big 
polluters and corporate cheaters.
  This year's billionaire bonanza came through four decisions that 
gutted administrative Agencies' ability to do their job--perfect 
payback to the polluter billionaires who helped foot the bill to get 
these Justices onto the Court in the first place.
  The first decision is Ohio v. EPA, where the Supreme Court undermined 
the Environmental Protection Administration's ability to enforce the 
``good neighbor'' provision of the Clean Air Act, the provision that 
defends the air quality of ``downwind'' States like mine, Rhode Island, 
from powerplants and industrial facilities in ``upwind'' States, where 
sometimes they build the smokestacks extra high so that the pollution 
doesn't hit the polluting State, but it floats over and comes down and 
hits us in Rhode Island.
  Without even full briefing on the merits, industry litigants 
succeeded in getting the Court to stall proposed clean air regulations 
and place a thumb on the scales in favor of polluters. At the hands of 
the Federalist Society Justices, the right of polluters to pollute beat 
the right of Rhode Islanders to breathe clean air.
  Then came SEC v. Jarkesy, where the rightwing Justices undercut the 
ability of Federal Agencies to hold fraudsters accountable through 
administrative enforcement proceedings.
  The Court held that civil penalties for securities fraud required a 
jury trial under the Seventh Amendment, undermining administrative 
adjudication in all sorts of civil enforcement proceedings across the 
Federal Government--protecting consumers from predatory financial 
institutions, workers from unsafe conditions, and the environment 
against polluters.
  I am angry that the Court picked this case to express concern about 
the right to a civil jury while it has been busily eroding that same 
civil jury right when doing so favored big corporations over regular 
people.
  If you are a fraudster on the losing end of a regulatory violation, 
they are all about the Seventh Amendment. If you are a consumer or 
employee injured by a big business, off you go to private, secret, 
mandatory arbitration.
  At the hands of the Federalist Society Justices, the right of 
fraudsters to commit fraud defeated the right of people to be protected 
from fraud.
  In Loper Bright Enterprises v. Raimondo, the Court overruled 40 years 
of precedent granting what is called Chevron deference to Federal 
Agencies when they are implementing laws that protect health, safety, 
and the environment.
  Chevron recognized that courts should defer to an executive Agency's 
reasonable interpretation of a statute it is charged with 
administering. Just reading that sentence tells you how eminently 
reasonable the rule was. Plus, Congress can't be expected to make fine-
grained determinations in technical areas that are best left to experts 
with decades of training and experience.
  In Loper, the rightwing Justices removed that deference to expertise. 
The result? Look at this Washington Post headline: ``Corporate 
lobbyists eye new lawsuits after supreme court limits federal power''--
more ways for polluters to stall regulations with delays that could 
save polluters billions.
  Just to read this text:

       Mere hours after the Supreme Court sharply curbed the power 
     of federal agencies, conservative and corporate lobbyists 
     began plotting how to harness the favorable ruling in a 
     redoubled quest to whittle down climate, finance, health, 
     labor and technology regulations in Washington.

  These cases are a power grab by a captured Court, transferring 
regulatory authority from an elected Congress and an elected executive 
to an unaccountable judiciary ill-suited to make such technical 
determinations.
  Almost laughably, as they did this, Justice Gorsuch had to amend his 
opinion in that Ohio v. EPA case because he confused ``nitrous 
oxide''--laughing gas--with ``nitrogen oxides'' that were the subject 
of that case. So much for judges knowing technical stuff better than 
the experts.
  The right of Federalist Society judges to make up fake science for 
billionaires triumphed over the right of regular people to have real 
experts defend them.
  Finally, in Corner Post v. Federal Reserve, the Court held that the 
6-year statute of limitations to challenge a Federal Agency's action 
begins when a person or entity challenging a rule is allegedly 
injured--maybe decades after the rule became law.
  Every regulation can now be litigated for eternity. Agencies will be 
perpetually vulnerable to litigation on every rulemaking stalled by 
deep-pocketed litigants armed with exotic legal theories and the 
backing of this captured Court.
  As Justice Jackson wrote in her dissent in Corner Post:

       The tsunami of lawsuits against agencies . . . has the 
     potential to devastate the functioning of the Federal 
     Government. Even more to the present point, that result 
     simply cannot be what Congress intended when it enacted 
     legislation that stood up and funded federal agencies and 
     vested them with authority to set the ground rules for the 
     individuals and entities that participate in our economy and 
     our society.

  At the hands of the Federalist Society Justices, the power of special 
interests to tangle up regulatory Agencies has defeated the right of 
taxpayers to protection from those special interests.
  Here is how I explained that protection in my amicus brief in the 
Loper case:

       Over the last century, our society has advanced remarkably. 
     As industries and corporations grew, their motive to maximize 
     profits caused social harms and threatened

[[Page S4542]]

     consumer safety. Regulation responded. Heavy equipment and 
     dangerous chemicals came to mines, factories, and 
     construction sites; regulators implemented workplace safety 
     standards. Meatpacking and mass production . . . ballooned; 
     regulators implemented sanitation requirements in production 
     facilities. Americans widely adopted automobiles; regulators 
     required seat belts and air bags.
       The modern economy necessitated a modernization of the U.S. 
     regulatory framework. Congress responded to the complexities 
     of the modern world by ensuring that administrative agencies 
     have the capacity, flexibility, and expertise to respond to 
     new developments. Part of that project was delegating clear 
     and broad authority to executive agencies and allowing those 
     agencies to adopt and adapt regulations to respond to new 
     hazards.
       As a result, daily life in the United States is safer. 
     Workplace illnesses, injuries, and deaths declined. Children 
     on average have lower levels of lead in their blood. 
     Foodborne illnesses that used to kill thousands of people per 
     year have been practically wiped out. Highways are no longer 
     ``carnage,'' and air travel is even safer than highway 
     travel.

  So why tear down what has worked so well for generations? Well, the 
billionaire-funded think tanks say it is to strip power from so-called 
``unaccountable bureaucrats.'' They love to talk about unaccountable 
bureaucrats--except that Federal Agencies are not unaccountable. 
Indeed, they are way more accountable than judges.
  Again from my Loper brief:

       Agency experts report to politically appointed executive 
     agency heads nominated by the President and confirmed by the 
     Senate.

  Accountable.

       These agency heads serve at the pleasure of the president, 
     who is accountable to the people. If the public is unhappy 
     with how agencies are implementing Congress's policies, 
     voters can make that known at the ballot box.
       Congress oversees agency actions through legislative 
     committees dedicated to agency oversight, and regularly 
     conducts oversight hearings where heads of agencies are 
     called to account. Congress retains the power to enact 
     legislation to limit or reverse agency rulemakings if it 
     disagrees with the agency's actions, in some cases on an 
     expedited calendar. Furthermore, Congress holds the power of 
     the purse; every appropriations bill presents an opportunity 
     to expand, correct, or contract agency authorities. If the 
     public is unhappy with how Congress is holding agencies 
     accountable, voters can make that known at the ballot box.
       Finally, agencies are accountable to the judiciary, which 
     has the authority to review an agency's 
statutory interpretations and actions to ensure the agency's decisions 
are reasonable and follow appropriate processes and procedures.

  The myth of unaccountable administrative Agencies is a fake. The real 
objection is that career Agency employees are experts and can go toe-
to-toe with industry trickery. And worse, for polluters, they can't put 
the fix in politically with a big campaign contribution or a couple of 
million dollars to a super PAC because Agencies are forbidden to take 
political considerations into account, and they are forbidden to self-
deal.
  All of this wreckage of the longstanding protections of our 
administrative process was done by polluters who fund the Republican 
Party and paid to stack the Court that dark money built, and this is 
the polluters' payday.
  A whole smelly ecosystem of secretly fronted front groups is 
involved. Anti-regulation doctrines get cooked up in rightwing 
hothouses funded by polluters. The doctrines get amplified by rightwing 
front groups funded by polluters. They then get fed to the Court via 
little flotillas of rightwing amici funded by polluters. Secret, dark 
money funding from billionaire special interests underpins the entire 
operation. Much of this is the Koch Industries' political influence 
operation--a powerful, rightwing, dark money political polluter 
network.
  Look at that Loper case. The lawyers who represented the petitioners 
in that case worked for free--supposedly--for a public interest law 
firm supposedly called Cause of Action. Interesting law firm: It 
discloses no donors, and it does not report any employees. In fact, the 
New York Times discovered the group's lawyers who supposedly work for 
Cause of Action actually work for Americans for Prosperity, the main 
battleship of the Koch political front group armada--an operation that 
is so cozy with the far-right Justices it helped put on the Supreme 
Court that Justice Thomas has repeatedly flown out to join fundraisers 
for Koch political operations, including Americans for Prosperity.
  Here is the flotilla of front groups that appeared in Loper as amici 
curiae: 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 dear friends the U.S. Chamber of 
Commerce--a proper murderers' row of polluter mischief. And who are 
they funded by? Oh, let's look. DonorsTrust, the Donors Capital Fund, 
Koch family foundations, the Bradley Foundation, and ExxonMobil itself.
  DonorsTrust and Donors Capital Fund are so-called donor-advised 
funds. They don't actually do anything. They don't actually produce 
anything, build anything. What they do is provide rightwing identity-
laundering services. DonorsTrust has been described as the ``dark-money 
ATM of the right'' and, with Donors Capital, has laundered over a third 
of a trillion dollars into climate denial operations.
  If you are ExxonMobil or a billionaire polluter and you want to 
support climate denial but you don't want your name on the phony front 
group that is doing the climate denial work, you send your check to 
DonorsTrust, and they take it and they send the money where you tell 
them--to the other group--only it is disclosed by them as coming from 
DonorsTrust. It is an identity-laundering operation for dark money 
political influence.
  Some amici also were funded by front groups affiliated with Leonard 
Leo, whom we know as the billionaires' operative in the Court capture 
operation. The Loper amicus Advancing American Freedom received $1.5 
million from Leonard Leo's Concord Fund between 2020 and 2021--$1.5 
million. Leo's Concord Fund, which is this operation on this graphic, 
operates also under the fictitious name of the ``Judicial Crisis 
Network.''
  When I say ``fictitious name,'' I mean that under Virginia corporate 
law, Concord Fund has filed ``Judicial Crisis Network'' as a fictitious 
name--term of art in the law--under which it is allowed to operate 
without disclosing that it is actually the Concord Fund.
  Through the Judicial Crisis Network, Leo and his confederates spent 
millions of dollars on the Court capture operation: TV ads, barrages of 
TV ads, huge checks in for $15 million and $17 million from undisclosed 
donors to pump the rightwing Justices that they had chosen through 
confirmation.
  So this same group that helped push the Justices from the Federalist 
Society lists onto the Supreme Court then files a brief through 
Advancing American Freedom--$1.5 million from Concord into Advancing 
American Freedom.
  This whole thing is a billionaire-backed shell game in which the 
Court willingly participates.
  The connection between Court capture and regulation destruction--that 
is not even in dispute. The Court capture operation and the anti-
regulatory operation were admitted by Trump's White House Counsel, Don 
McGahn, to be--and I am quoting him here--``two sides of the same 
coin.'' You stack the Court to tear down the regulations so your 
polluters are happy and they fund your effort to stack the Court and 
support Republican power. And about this slate of recent decisions I 
have just discussed, he proudly told the New York Times--and I am 
quoting him again--``None of this was an accident.'' ``None of this was 
an accident.'' Indeed. It was bought and paid for.

  There is considerable literature about a phenomenon called regulatory 
capture, sometimes called Agency capture. It is the capture of 
regulatory Agencies by industry to corrupt government decisionmaking. 
You can imagine railroad barons taking over a railroad commission whose 
job it is to set the rates for their railroads.
  Well, the Supreme Court has been captured in the same way. This was 
no small or incidental undertaking. True North Research estimates that 
at least $580 million has been spent on the Court capture operation. 
These groups were a significant part of it, and these groups enjoy the 
benefit of it.
  Now, $580 million is a lot of money, but just these four decisions 
are payback for the polluters that makes that $580 million a cheap 
investment. And

[[Page S4543]]

the public will pay the price, but that is a price that this captured 
Court is happy to have the public pay.
  I am going to conclude with Justice Kagan's dissent in the Loper 
case. She pointed out--because she saw this game play out right in 
front of her. She is over there on the Court watching this game play 
out. She pointed out that the polluters' Justices stopped applying the 
Chevron doctrine back in 2016 as part of a plan because, she said, they 
were--and I am quoting her here--``preparing to overrule Chevron since 
around that time''--an 8-year-long plot to take out a precedent that 
bothers polluters. Forget calling balls and strikes; these Justices 
were on a multiyear billionaire polluters' mission.
  It is not just Chevron; this is a pattern.
  As Justice Kagan went on to say:

       That kind of self-help on the way to reversing precedent 
     has become almost routine at this Court. And here is how she 
describes it: ``Stop applying a decision where one should; throw some 
gratuitous criticisms into a couple of opinions; issue a few separate 
writings questioning the decision's premises; give the whole process a 
few years . . . and voila!--you have a justification for overruling the 
decision,'' something she called an ``overruling-through-enfeeblement 
technique [that] mock[s] stare decisis.''

  As she described it, this captured Court, at the big donors' 
direction, stalks for years and then kills off precedent that the 
billionaires don't like, precedent that interferes with their polluting 
or interferes with their cheating.
  That stalking and killing plan may be a lot of things, Mr. President, 
but I will tell you what it is not: What it is not is judging.
  To be continued.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Rhode Island.
  Mr. WHITEHOUSE. That would be Senator Reed, Mr. President. Am I 
recognized?
  The PRESIDING OFFICER. Would the Senator forgive me for my mistake?
  The junior Senator from Rhode Island.

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