[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.
____________________