October 18, 2023

The Scheme 25: The Front Group Swarms

Mr. President, I am rising today for the 25th time to address the multifaceted dark money scheme to capture and control our Supreme Court. We will look today at how the creepy billionaires who captured the Supreme Court get their message through to the Justices they helped plant there.

That, of course, is the last leg of the capture operation. First, you have the so-called Federalist Society list, purportedly created by the Federalist Society for former President Donald Trump to pick Supreme Court Justices from. Bad enough if that were true—a secretive, anonymously funded, private group picking Supreme Court Justices while accepting big, secret contributions. What could possibly go wrong? But it is actually worse. The Federalist Society can show no official process to cook up the list—no agenda item, no vote, no nothing. It was done in some back room secretly by the Federalist Society’s Leonard Leo, the operative of the creepy billionaires who fund this endeavor. The Federalist Society did let Trump use the ‘‘Federalist Society’’ name for cover on the list, as if it was their list, but it wasn’t.

After that step, the fake list, came the billionaire-funded campaign to get the Senate to confirm the Federalist Society Justices. This part of the operation ran through another dark money front group, the Judicial Crisis Network, conveniently located just down the hall—in the same building, on the same floor—from the Federalist Society. ‘‘Judicial Crisis Network’’ is the fictitious name for yet another dark money front group. And, of course, millions in dark money were poured into Senate Republican political coffers from the same billionaires, and—no surprise—Republican Senators voted to confirm even deeply troubled Justices, and now there they sit on the Court.

So let’s say you are a billionaire who funded all of this. You have your handpicked Justices on the Supreme Court. How are they supposed to remember what you want? Well, easy—you tell them. Queue the front groups that file briefs at the Supreme Court as amici curiae—Latin for ‘‘friends of the court.’’ They file them in coordinated flotillas, usually of about a dozen. But where it is a really big deal to the dark money billionaires, they have sent in more than 50 of these briefs. In the case where it was over 50, it was at the certiorari stage, early in the proceedings, to make sure the chosen Justices got the message.

That case was Americans for Prosperity Foundation v. Bonta. It was about disclosing donors behind dark money front groups. After the deluge of over 50 front group amici, the Federalist Society Justices let nonprofits—known as 501(c)(3)s—hide their donors even from sovereign States where they operate and which have a responsibility to police them for fraudulent abuse of the tax system. This decision added more secrecy to the latest and greatest secret political influence technique, which is to pair a dark money 501(c)(3) with a dark money 501(c)(4) entity. This is—no surprise—precisely the secretive influence technique that the creepy billionaires deployed to get those chosen Justices on the Court.

Well, we have all witnessed the sordid saga of theatrically grotesque gifts and free travel that rightwing billionaires have bestowed on certain Supreme Court Justices. That is connected here. The billionaires who fund the Justices’ gifts and entertainment also fund front groups that come in to tell the Justices what to do. So the backdrop of the capture apparatus is that billionaires choose the Justices, fund the campaigns for their confirmations, and then send in flotillas of billionaire-funded front groups to give instructions.

With that backdrop, let’s look at recent and coming cases and how those front groups are doing.

Last term, the Federalist Society Justices handed several major wins to the front groups and their backers. One of these wins came in a case called Sackett v. EPA. It was the latest assault on the EPA’s power to clean up our environment and hold polluters accountable. Many of the big-spending, rightwing billionaires owe their fortunes to the polluting fossil fuel industry, so it is no surprise that their front groups are out to weaken the EPA.

The EPA has responsibility under the Clean Water Act to make sure that our country’s water remains safe and clean. Naturally, the polluters and their front groups hate this, so in Sackett, they asked the Court to narrow as much as possible which waters the EPA could protect under the Clean Water Act.

The front groups had their fingerprints all over this case. To start, the attorneys who brought the case came from the Pacific Legal Foundation. Because it is a dark money group, it is impossible to know exactly who funds the Pacific Legal Foundation, but in the past, it has received money from the likes of ExxonMobil, the Koch Brothers’ political apparatus, and other groups who fund climate denial. A great many of these cases that bring in the flotillas of billionaire-funded amici are not brought up through regular litigation; they are brought by these front groups, teed up by front groups who bring in plaintiffs of convenience to bring a particular question up before the captured Court.

At the Supreme Court, at least 10 other far-right, front group amici all urged the Court to undermine the Clean Water Act. These amici included groups like the U.S. Chamber of Commerce, one of the biggest mouthpieces for the fossil fuel industry, and the Americans for Prosperity Foundation, which we just spoke about, part of the Koch Industries’ fossil fuel political operation.

I went over some of the briefs this morning in the Environment and Public Works Committee when we took a look at the Sackett case, and I will just do a brief summary right now. The Pacific Legal Foundation has received money from Exxon, various Koch political foundations, DonorsTrust, the Bradley Foundation, and the Sarah Scaife Foundation. Also in the case was the Americans for Prosperity Foundation, which has been funded by the Koch political operation, DonorsTrust, the Bradley Foundation, and the Sarah Scaife Foundation. The Cato Institute was in the case with funding by the Koch political operation, Donors Capital, DonorsTrust, and the Bradley Foundation.

Something called the Claremont Center for Constitutional Jurisprudence chimed in with funding from Donors Capital, DonorsTrust, the Bradley Foundation, and the Sarah Scaife Foundation. Liberty Justice Center came in with funding from DonorsTrust and the Bradley Foundation. NFIB Small Business Legal Center came in with funding from Donors Capital, DonorsTrust, and the Bradley Foundation.

Atlantic Legal Foundation came in with funding from the Bradley Foundation and the Sarah Scaife Foundation. Mountain States Legal Foundation came in with funding from the Koch political operation, DonorsTrust, Donors Capital, the Bradley Foundation, and the Sarah Scaife Foundation. Southeastern Legal Foundation came in with funding from DonorsTrust, Bradley Foundation, and Sarah Scaife Foundation.

The Washington Legal Foundation came in with funding from the Koch political operation, Donors Capital, DonorsTrust, the Bradley Foundation, and the Sarah Scaife Foundation. So the litigant and nine amici were all funded by the Kochs, by DonorsTrust and Donors Capital, and by the Bradley Foundation and the Scaife Foundation. They could just as easily have filed briefs in the name of the Koch political operation, DonorsTrust and Donors Capital, and the Bradley Foundation and the Sarah Scaife Foundation or even filed one brief filed by all of those entities, but instead they created this fake machinery of front groups, creating the illusion of multiplicity and the illusion of independence, when, in fact, these things are played like piano keys on a piano.

By the way, if they had actually tried to file a brief in the name of DonorsTrust and Donors Capital, it would have been a little bit weird because those are not entities that have any real role in the world other than to scrub the identities off of dark money donations to rightwing groups. So if you don’t want your name on an expenditure, you give it to Donors Capital, and they then pass it on to the group. The group reports that they got it from Donors Capital, and you get to walk away hands-free, without any attribution or accountability.

So not only are these multiple players; they tend to switch around in this scheme. So let me add that Americans for Prosperity Foundation was the petitioner in the case with the 50-plus dark money amici that came in. There, the scheme was to get the chosen Justices to protect dark money for 501(c)(3)s, and needless to say, it worked.

But back to Sackett. Five of the six Republican-appointed Justices got the message sent by these front groups and adopted the narrowest interpretation of the Clean Water Act that they could get away with. Millions of acres of wetlands are no longer protected by the EPA—another win for polluter interests; another loss for the American people; another successful direction by a rightwing, dark money, front group flotilla.

Sackett wasn’t the only case where the creepy billionaires scored big at the Court last term. Another win came in the student loans case, where the Federalist Society Justices threw out President Biden’s plan to cancel student loan debt for millions of struggling borrowers. Showing up in that case was another double-digit flotilla of far-right and industry-funded front group amici, with customary repeat players like the Kochs’ Americans for Prosperity Foundation, the Chamber of Commerce, and the Buckeye Institute.

In this scheme, even the front groups have front groups. So Leonard Leo’s Judicial Crisis Network is actually the fictitious name of another front group called the Concord Fund, and the Judicial Crisis Network, which is the same group that Leo used to help confirm the handpicked Justices, in turn propped up a new front group led by Mike Pence, funding it with more than $1 million. So the front group’s front group’s front group filed a brief in the student loans case. You cannot make this stuff up.

Well, naturally, the Federalist Society Justices delivered what these groups were asking for on behalf of their billionaire benefactors, but the real victory for the front group amici in this case was how the Justices struck down the plan.

The Federalist Society Justices relied on something called the major questions doctrine—a doctrine they first deployed 2 years ago at the behest of fossil fuel groups in a case called West Virginia v. EPA. The basic idea is that if a judge thinks an Agency regulation is too big or too important, the judge gets to strike it down. It is the perfect tool for billionaires to use billionaire-picked Justices rather than Agency subject-matter expertise to stop regulations they don’t like.

A whole separate scheme speech could be devoted to the hothouse ‘‘doctrine factories’’ in which notions like the so-called major questions doctrine are seeded, fertilized, watered, and grown. In West Virginia v. EPA and in the student loans case, the Federalist Society Justices took the doctrine from dark money-funded hothouses like the Federalist Society itself and replanted it into American law. It is now law. The front groups, of course, with that opening, then began challenging even more regulations left and right using this supposed doctrine. And, no surprise, the Agency they targeted the most is the EPA.

That brings me to the pending wave of front group action at the Supreme Court. One case that has received a lot of attention is Moore v. United States. That case centers on a narrow legal issue related to the Republicans’ 2017 tax cuts for the rich. But the billionaires’ front groups want far more. They want the chosen Justices to shield the billionaire elite from paying taxes by preemptively declaring unconstitutional taxes that would more directly target the billionaires’ massive fortunes.

Well, given what a boon that would be for the creepy billionaires, as you can imagine, the amicus flotilla is out in full force. At least 14 far-right billionaire front groups have surfaced in Moore. And like in Sackett, a front group is litigating the case: the Competitive Enterprise Institute, it is called, which has a long history of rightwing, billionaire funding.

One side note about this case, remember when I said there was overlap between the rightwing billionaires who fund these groups and the rightwing billionaires who lavished Justices Thomas and Alito with luxury gifts? This case is exhibit A, with multiple rightwing front groups funded by billionaires Paul Singer, Harlan Crow, and the Kochs, who are billionaires at the center of the ethics mess of secret freebies for certain Justices at the Court. It actually gets worse. In Moore, the lawyer litigating on behalf of the billionaires’ cause is the same lawyer who conducted the so-called interview with Justice Alito in the Wall Street Journal editorial page about my Supreme Court ethics bill and our Senate investigations on Judiciary and Finance into the undisclosed gifts to certain Justices. That interview propped up for the lawyer’s client Leonard Leo the argument that we could not investigate gifts Leo orchestrated to Justice Alito. You need a diagram.

You cannot make this stuff up. Litigant in Moore, lawyer to Leo, interviewer of Alito—that is a whole lot of hats for that one lawyer’s head. The more you look at this operation, the more you see it as a big shell game with multiple front groups that can be moved around and multiple operatives switching around to deliver results for this billionaire elite. It is a scheme.

Another case the billionaires are targeting this term is Loper Bright Enterprises v. Raimondo with, yep, another attack on the basic foundations of Agency regulation. It is not enough that their home-brewed major questions doctrine has just been made law by their chosen Justices. They want more. And, of course, a flotilla of front group amici has been marshaled to urge on the Federalist Society Justices.

I filed a brief in that case with several colleagues documenting these amici’s industry connections. Many have received hundreds of thousands— even millions—of dollars from far-right and polluter interests that would benefit from weaker regulations. As usual, they are repeat performers who show up in case after case to feed the Court arguments propagated in rightwing hothouses.

That is the Court capture process: Billionaire-funded groups cook up legal theories to help the billionaires; billionaire-funded litigation propped up by billionaire-funded flotillas of front groups tees up the Justices to adopt the hothouse theory. And then, after the Justices adopt the hothouse theory, the front groups bring more cases to attack more regulations. Rinse and repeat, until you have tied up or knocked down every regulation in your polluting way.

As with a lot of the mess at the Supreme Court right now, the Justices could do a lot to clean this up by themselves. They could require real disclosure of who is behind these flotillas of phony front groups. They could turn away cases that look like faux litigation brought by political front groups behind plaintiffs of convenience. They could adopt ethics procedures that allowed basic fact-finding into the swampy mess of billionaires, front groups, free secret gifts, and the ubiquitous fixer Leonard Leo. And, of course, they could stop granting the front groups’ wishes time after time after time.

 A new term of Court presents a new opportunity for the Court to recommit itself to deciding law and not just doing the bidding of creepy billionaires and their phony front groups. We too often fixate on the awful decisions that have come out of this Federalist Society majority. When we do, we overlook the nasty little web of front groups lurking behind those awful decisions. But the front group web is an important part of the story, an essential element of the Court capture apparatus, and a key element of the scheme. The web should not be allowed to hide in plain view simply because we don’t bother to keep track and connect the dots.

To be continued. I yield the floor.