February 9, 2022

The Scheme 12: JCN’s Opening Salvo

Mr. President, I am here again today to discuss the scheme by big Republican donor interests to capture and control our Supreme Court. Today, I am going to put a little spotlight on ongoing scheme operations.

As we all know, Justice Stephen Breyer will retire at the end of this Supreme Court term. As the Biden administration selects a nominee, the scheme is shifting gears to attack her even before she has been named.

A dark money front group called the Judicial Crisis Network has already announced a multimillion-dollar ad blitz against Justice Breyer’s unnamed replacement, and its first ad is already up. The ad’s premise is that leftwing dark money is poised to capture our Supreme Court. I am not making that up. Think of a squid. When a squid senses danger, it squirts a jet of ink into the water. The squid ink creates confusion and distracts predators, and the squid sneaks off. This new ad from the Judicial Crisis Network is squid ink.

Let’s start with just a quick review of the facts. Rightwing donor interests captured our Supreme Court under Donald Trump. They did it with dark money. They used the front group Judicial Crisis Network to launder off identities of big rightwing contributors. The identified contributions funded political campaign ads against Merrick Garland and for Gorsuch, Kavanaugh, and Barrett. Those are the facts. The road onto the Supreme Court for those three Justices was paved with dark money.

By the way, the checks were big. Four of the checks to Judicial Crisis Network were for $15 million or more. That is a big check. Because we don’t know who those donors are or who that donor is—it could all be one donor—we don’t know what business they had before the Court or why it was so worth it to them or him to spend $60 million to influence the makeup of the Court.

This new Judicial Crisis Network ad—the squid ink ad—is designed to confuse those rather conspicuous facts. They can hide who funded them, but they can’t hide what they did; so, squid ink—distraction, misdirection. Their accusations of dark money corruption are a projection of the very scheme they themselves hatched and executed. As I have discussed previously in these speeches, this is a classic propaganda technique: You accuse your adversary of what you yourself have been doing.

Yes, it is maddening to have a phony front group use dark money to capture and corrupt our Supreme Court and turn it into the Court that dark money built. It is devilish, Vladimir Putinstyle propaganda for that phony front group to then accuse others of exactly what it did—a false mirror of its own behavior.

By the way, that Judicial Crisis Network ad accusing a not-yet-chosen Supreme Court nominee of being a dark money stooge? Paid for with dark money. You can’t make this stuff up.

Let’s look at the Judicial Crisis Network. Start with the fact that ‘‘Judicial Crisis Network’’ does not exist. It is, legally speaking, a fiction. Who knew, right—an entity selling fiction that is itself a fiction. ‘‘Judicial Crisis Network’’ is actually a ‘‘fictitious name’’—that is a term under Virginia incorporation law—a fictitious name, one of several filed by an organization, a completely different organization, called the Concord Fund.

It gets even more tangled, as dark money schemes tend to be—they are a lot like a covert operation—so let’s keep digging.

The Judicial Crisis Network actually used to exist. It was once the 501(c)(4) twin of a 501(c)(3) called the Judicial Education Project. That is the state of the art these days for dark money political mischief, a twinned 501(c)(3) and 501(c)(4). Tax records list the same address for both entities—conveniently an address which happens to be just right down the hall, on the same floor, in the same building, as the Federalist Society.

This twinned organization trick allows donors to shift money in and out of different shady operations with zero disclosure, and it even gives donors a tax deduction to the 501(c)(3). You could pierce that corporate veil pretty easily.

All this schemery hides the donors behind the operation. It fools members of the press who don’t bother to figure it out, and it helps dark money operatives like Leonard Leo, the central organizer of the scheme—the operative for the big dark money donors— to hide their hands and shuffle money secretly around.

Leonard Leo, you will recall, ran the donor turnstile at the Federalist Society that picked Justices Gorsuch, Kavanaugh, and Barrett. Then, at the tail end of the Trump administration, with no more Supreme Court appointments likely, Leo scuttled off to a new venture: CRC Advisors.

CRC Advisors was designed, as Axios reported, to ‘‘funnel big money and expertise across the conservative movement.’’

As an aside, CRC Advisors has an affiliate called CRC Strategies, which, among other things, brought us the infamous swift boat campaign against John Kerry—classy bunch.

Along with the inception of CRC Advisors, Judicial Crisis Network was quietly renamed the ‘‘Concord Fund,’’ and the Judicial Education Project was quietly renamed the ‘‘85 Fund.’’

These became twin 501(c)(4) and 501(c)(3) political mischief operations. Concord, as a 501(c)(4), would handle attack ads and PR. The 85 Fund, the 501(c)(3), would help mask Concord’s operations and donors and provide tax deductibility.

So that was the original setup, the renaming. Then these newly named groups loaded up with all these fictitious names. They filed under Virginia law for permission to operate under fictitious names, and these are the fictitious names they registered to use.

First, Concord took its old name—its old name—and reregistered it as this new fictitious name. And so did 85 Fund, taking its old name, Judicial Education Project, and registering it as a fictitious name. Go figure why that was necessary.

Then they stood up new voter suppression projects under other fictitious names: Honest Elections Project Action and Honest Elections Project. Those two front groups—fictitious name front groups—are part of the dark money armada, along with Heritage Action and others, through which big rightwing donors orchestrated the anti-voting laws that have spread like a virus through Republican State legislatures. That didn’t just happen. That was done. And as a Heritage Action employee admitted in a leaked video, they did it, quietly, through sentinels.

Concord also added another fictitious name, Free to Learn Action, and 85 Fund created the twin Free to Learn. These fronts are presumably to whip up the rightwing about so-called critical race theory when the big donors want.

Gobs of money pours into this propaganda machine. The 85 Fund’s last tax filing shows $65 million in revenues, including one $48.5 million donation from a single, anonymous donor. If it is the same single, anonymous donor that contributed the over $15 million contributions to the Judicial Crisis Network before, that would put one donor over $100 million into this Court-capture scheme—and all that money for an organization with only one employee who draws a salary of over $100,000 per year.

So no surprise, then, that the 85 Fund channels lots of money back to the CRC mother ship. Its last tax filing shows over $12 million paid to Leo’s CRC Advisors for so-called consulting/ advertising services, and it distributed over $34 million to other unnamed groups, presumably in other areas of the scheme, in a big dark money shuffle.

We are still waiting for Concord Fund records for the most recent tax year, but the previous year’s filing proves the Axios reporting is spot on. Concord’s top independent contractor is CRC Advisors, paid over $4.2 million for consulting services. It is out of this pea-and-shell game switcheroo that the dark money Judicial Crisis Network ad emerges.

I have noticed recently—in fact, as recently as our last Judiciary Committee markup—that Republicans are currently reverting, often, to the same dark money line of attack as the Judicial Crisis Network. As we watch Republican Senators attack Democrat dark money, let’s remember a few things. First, Republicans created, protected, and defended—and defend to this day—dark money. Republicans block our efforts to get rid of dark money.

Republicans came first to the dark money game with billions of dark money dollars. Then, when we began to play by their rules—the rules they made, the rules they defend—they complained. I guess they hope that we will unilaterally disarm so they can pound us with dark money just as they did for years after their Republican Justices in Citizens United let the big money flow.

Well, unilateral disarmament isn’t going to happen, but that is not the only reason for the squid ink. The falsehood of this ad serves to damn us all in the eyes of the public. The rightwing scheme reckons that Americans, frustrated and cynical about a slimy, dark money battle purportedly involving both sides, will tune out and turn away from what Justice Sotomayor has called the ‘‘stench’’ of partisanship emerging at the Supreme Court. All this misdirection—squid ink—can then distract from their captured Court’s record for the big scheme’s donors. The ‘‘Roberts Five’’ have a pattern now, a pattern of 80—80—partisan 5-to-4 decisions, all benefiting easily identified Republican donor interests— an 80-to-0 record. It is a heck of a pattern.

And now they have a new rightwing, dark money supermajority to amp it up even further. It is no wonder polling shows that Americans believe the six Justice Republican majority is motivated mainly by politics and that the Court’s approval rating just hit an all-time low.

So a little distraction is in order. Cue the squid ink. Meanwhile, the Senate minority leader is reportedly urging his caucus to keep a low profile on Biden’s nominee. I get it. When you have got your burglars inside merrily ransacking a house, the last thing you want is a noisy ruckus out on the front lawn. One liberal Justice exchanged for another isn’t worth a fuss when the loot is being shoveled out the window to your gang.

If there was any honest concern about dark money on the Republican side, there is a really, really easy way to show it: support legislation to clean it up; put an end to it.

I have a bill, the DISCLOSE Act. It will end dark money in our politics and in our judiciary. Every single Senate Democrat has voted in favor of this DISCLOSE Act. Even the liberal groups that Judicial Crisis Network complains about are backing that bill.

So, my Republican friends, support it, pass the law, end the slimy, political, dark money era we now live in. They could do that, but I will make you a bet that they won’t. Dark money power is too important a weapon for rightwing donors to abandon.

So, instead, Republicans in this Chamber filibuster that legislation— filibuster it—and dark money continues to corrupt our politics.

Brace yourselves, folks. Squid ink will flow in the weeks and months ahead. For the dark money forces squirting out the squid ink, the aim is defense, defense of their mighty prize: the Court that dark money built and that dances to their dark money tune.

To be continued.

I yield the floor.