12.09.21

The Scheme 10: Climate Obstruction and The Scheme

Mr. WHITEHOUSE. Madam President, it is a pleasure, and I appreciate my friend, Senator BLUNT.

I am here today to rise for the 10th time to talk about the rightwing scheme to capture our Supreme Court.

As the Presiding Officer knows, I have delivered a lot of speeches on the Senate floor, and a majority of them— 279 of them, to be precise—addressed climate change. These were my ‘‘Time to Wake Up’’ speeches, many of which focused on the network of phony front groups and trade associations used by the fossil fuel industry to block any meaningful climate legislation.

That vast web of climate denial and climate obstruction is one of the main reasons that we are in the climate crisis we face today. I am here today to report that there is common technique behind that smelly climate denial operation and the rightwing donor operation to capture the Court.

They both rely on massive amounts of dark money. They both rely on a small number of ultrawealthy donors who supply that dark money. And they both rely on an armada of front groups and phony corporate entities, funded by those big donors, to hide their hands. At this point, it is, actually, depressingly, familiar.

But it is worse than just common technique. It is the same entities: the Koch operation, Americans for Prosperity, DonorsTrust, the Bradley Foundation, the Scaife Foundation, the Competitive Enterprise Institute, the U.S. Chamber of Commerce. The list goes on and on and on. These are the exact same players on both sides of the operation—on the climate-denying web and on the Court-capturing scheme.

My colleagues and I showed in a number of Web of Denial climate speeches how a few ultrawealthy, rightwing foundations, corporate trade groups, and so-called donor-advised funds supply the bulk of the dark money for modern-day climate denial.

Big oil companies used to do that directly, but they got burned and learned that it is bad for their public image, and I suspect they are hiding now behind those anonymizing entities and trade groups. The big funding guns included the Koch network; the Lynde and Harry Bradley Foundation; the Searle Freedom Trust; the Sarah Scaife Foundation; Donors Capital; and DonorsTrust, which has been called the rightwing’s ‘‘dark money ATM.’’

This is the Web of Denial graphic that we used in many of those Web of Denial speeches, and you will see these groups turning up over and over again. They are central in the web of climate denial.

Now, if you look at the big funders behind the scheme to capture the Court, you will see this—in my last scheme speech, I talked about the flotillas of amici curiae—or ‘‘friends of the court’’—who come in and orchestrate phalanxes to file briefs for the rightwing in cases of significance to the scheme’s big donors. Well, it turns out that those funders also inhabit the web of denial.

This is an appendix that I filed in the case of Seila Law v. Consumer Financial Protection Bureau—a case that was the rightwing’s shot at weakening a consumer watchdog agency they hate. This appendix—a first of its kind in the Supreme Court, which was attached to my amicus brief—looked at some of the other amici who had filed briefs and cross-referenced where their funding had come from.

My point then was that the Court was not told that there was this huge overlap of funding. Each brief came in as if it were independent rather than part of an orchestrated cascade. So nearly every one of these groups is part of the web of denial: DonorsTrust, Donors Capital, the Charles Koch Foundation, the Sarah Scaife Foundation, the Bradley Foundation, the Searle Foundation.

But the overlay isn’t just with the phony amicus flotillas that are orchestrated up at the Supreme Court; it is right in the cases themselves. Take the notorious anti-labor cases of Friedrichs and Janus. According to a trove of documents uncovered in 2016, legal groups funded by the Bradley Foundation brought those cases. They weren’t just amici filing briefs; they were the litigating law group in those cases. The law group went out and found the plaintiffs—plaintiffs of convenience, and they paid the plaintiffs’ legal expenses. Those same donors, Bradley has shown in this, funded that whole boatload of amici who came in to support their also-funded group that was bringing the case on behalf of a nominal plaintiff. By the way, they funded a flotilla of amici in Janus. Seventeen Supreme Court amicus briefs came from groups funded by DonorsTrust, Donors Capital, and Bradley.

The front groups in those labor cases actually played a little bit of switcheroo amongst themselves. Think of the pea-and-shell game. The group that brought the case in Friedrichs became an amicus supporting the plaintiff in Janus. The group that brought the case in Janus had been an amicus supporting the plaintiff in Friedrichs. All of those groups—the ones that brought the two cases and the groups that chimed in as amici—were funded by the same organizations. It is a little bit like that pea-and-shell game except, if you know the parties, it is being played with transparent shells; but for some reason, the Court is incapable of noticing this scheme that is being pulled in plain view, in their presence.

Now, some front groups are invented shells—purpose built—just to hide whoever is behind them. Others are preexisting, captured, and co-opted. The key common characteristic, whether invented or captured and co-opted, is that they got to hide the donors. The U.S. Chamber of Commerce is the easy example of a captured and co-opted group.

According to the watchdog group InfluenceMap, the Chamber is one of the biggest climate obstructors in Washington.

Why?

The Chamber has lots of members who don’t support climate obstruction, but someone—someone—gave the Chamber enough money to become a worst climate obstructor. And guess what. The Chamber is also a major player in the scheme. It is the biggest filer of scheme amicus briefs; it campaigned hard for all three of Trump’s dark money-chosen Supreme Court Justices; and way back, it commissioned the Lewis Powell memo that launched the entire scheme.

Other major front groups serving both the web and the scheme include the Heritage Foundation, the Cato Institute, and the Competitive Enterprise.

Again, the common thread?

They all hide the donors so they can provide that vital screening, anonymizing function, which is key to the donors because they have to hide their identities and their motives in order to do their dark work.

On the scheme side, each one of these groups gets gobs of scheme dark money, helps hatch hot-house legal theories to present to scheme Justices, helps locate plaintiffs of convenience to bring cases for and/or joins the orchestrated flotillas of scheme amicus briefs. You see the same players over and over and over again, and how the Court manages not to notice or be curious is a mystery.

On the web side, each is also a central node in the web of denial. Here, for instance, is the Lynde and Harry Bradley Foundation. Here is the Donors Trust, Donors Capital. Here is Koch-affiliated foundations. Here is Searle Freedom Trust. Here is the Americans for Prosperity Foundation. These groups pretty notoriously represent the interests of Big Business and rightwing donors, so you at least know that much, if not the specific identity of who is funding the brief. But some of the web-scheme overlay gets a little bit harder to unravel, so let’s drill into one: the Independent Women’s Forum.

This group was founded by rightwing donors in the very early days of the scheme to prop up the troubled nomination of Justice Thomas. It has accepted millions of dollars from a who’s who of scheme and web-of-denial donors—Bradley, Scaife, Koch, Donors Trust. Its stated mission is to ‘‘improve the lives of Americans by increasing the number of women who value free markets and personal liberty,’’ but its real mission is to pop up anytime its dark money donors want to trot out a front group purporting to represent women. In practice, that means they pop up everywhere. They popped up in a pending Second Amendment case before the Court. They popped up in the Americans for Prosperity Foundation case that granted a constitutional right to dark money, signed off on by the dark money Justices. They popped up in the Little Sisters of the Poor contraception case. They popped up in a challenge to the EPA’s authority to regulate greenhouse gases.

The Independent Women’s Forum’s work in that EPA case brings the overlay between the web and the scheme into focus.

In 2016, the forum joined the dark money amicus flotilla asking the Supreme Court to strike down the EPA’s Clean Power Plan, along with other web-scheme front groups like the Competitive Enterprise Institute, the Texas Public Policy Institute, and other groups opposing the EPA. These parties asked the Robert Court to stop the Clean Power Plan before it went into effect. Just days before Antonin Scalia died and their 5-to-4 majority evaporated, the Republican Justices obliged.

This was ‘‘shadow docket’’ work, for those of you following the Texas abortion case ‘‘shadow docket’’ fiasco.

In the EPA case, for the first time, the Court stepped in to stay a regulation before it went into effect and before the lower court had a chance to weigh in.

By the way, it was a purely partisan decision, with all the Republicans behind it and none of the other Justices.

Fast-forward to today. The Trump administration replaced the Clean Power Plan in 2018 with a Trump donothing, polluter-friendly rule. When the Biden administration came in, it completely abandoned the Trump donothing, polluter-friendly rule, so right now, there is actually no regulation to challenge. But the scheme has replenished its dark money Court and supercharged it with a sixth Justice.

They are out to disable what they call the administrative state for the sake of their big donors, so they sued again, backed by familiar organizations—the Competitive Enterprise Institute, the Texas Public Policy Institute, and other web-scheme groups—to ask, as they put it in their brief, that the Court ‘‘finish what it started when it stayed the [Clean Power Plan].’’

There is no regulation to challenge. Yet the Republicans on the Court took the case—so much for the ‘‘case or controversy’’ principle of the Constitution. Now the Court, I guess, is going to make decisions based on what might happen. Where I come from, that is called an advisory opinion, which our Court is not supposed to do under the separation of powers. But the Federalist Society six on the Court are out for big game. The prize is to bring down the ‘‘regulatory state’’ altogether, and where better than where it most helps the fossil fuel industry—the industry lurking behind this web of denial and likely also working behind the dark money that put the last Justices on the Court and likely also lurking behind the dark money millions that fund the Republican election groups.

This Clean Power Plan challenge opens an avenue for scheme-appointed Justices to delight the donors behind both the scheme and the web. In the short term, it would hobble the EPA’s ability to combat climate change— something very much sought by vested interests in the fossil fuel industry. Over the long term, it would accomplish rightwing donors’ goal of kneecapping Federal Agency power across the board.

For Donors Trust, the Chamber of Commerce, the Independent Women’s Forum, and dozens of other groups that link the web and the scheme, winning cases like this one means big wins for their big secret donors.

To go back to my early speeches about the scheme, they are following Lewis Powell’s advice years ago to seize what he called the ‘‘most important instrument for social, economic, and political change’’—the Federal judiciary—and to control it with what he called ‘‘an activist-minded Supreme Court.’’ The scheme has captured the Court. The scheme’s captured Court will deliver for the web. It is the same donors and organizations behind both, and it has got to be cleaned up because this is not how courts are supposed to work.

To be continued.

I yield the floor.

Press Contact

Rich Davidson, (202) 228-6291