January 24, 2024

The Scheme 27: The Myth of the Unelected Bureaucrat

Madam President, let me get to the point at hand. I am back now for the 27th time to call attention to the rightwing billionaires’ scheme to capture and control our Supreme Court and connect it to things that are going on at the Court right now. The billionaire elite that captured our Supreme Court wants to use it to attack Americans’ ability—our ability as a people—through regulation, to protect our own health and safety, and the goal, mostly, is to benefit the big polluters in their midst.

A word on regulation: As modern innovations have raised the standard of living in the United States and around the world and corporations have grown to international behemoths and billionaires have claimed for themselves a larger and larger share of the world’s wealth, regulation has come to have a very important role. Big corporations’ well-known motive to maximize profits, I should say, inevitably causes dangers to society. If you think of a big industrial plant that without oversight would leach chemical byproducts into the soil and water, poison wells, and spread cancer, you have got an idea of why regulation is needed.

Over many decades, Congress created administrative Agencies to perform this task, staffed by scientists and other experts to use their expertise to manage and rein in these industrial dangers. The American system of regulation made our society safer and more prosperous. Period. As heavy equipment and dangerous chemicals came to mines and factories and construction sites, regulators implemented workplace safety standards. The meatpacking jungle led to sanitation requirements in production facilities. Automobile highway carnage produced seatbelts and airbags. Stockjobbing ‘‘boiler rooms’’ and insurance fraud provoked regulations to protect investors and insureds.

What has been the result? Workplace illnesses, injuries, and deaths declined. Foodborne illnesses that used to kill thousands of people per year have been practically wiped out. Highways are no longer carnage; boilers rarely explode; and medications and stock offerings and insurance policies are all safer for consumers. And, by the way, in this environment of safety, corporate profits soared. The S&P 500 has returned an excess of 7,800 percent. Clean air and clean water and safe food and cars are actually good for business. Regulation is good. Regulation is a public good. But a gang of recalcitrant polluters is in the crew that captured the Supreme Court. And they want not only to pollute for free, they want to pollute without expert regulation. Well, even Republican Congresses wouldn’t go for that so they turned to their captured, unaccountable Court.

First, they got the Court to create a brandnew, so-called major questions doctrine, basically a too-big-to-regulate escape hatch for big polluters. And now they are using their captured Court to attack another precedent, the legal doctrine known as Chevron deference, which is pretty simple: Unless the law is clear, on technical matters courts defer to the Agency experts. This arrangement makes sense. Congress isn’t suited and usually hasn’t the expertise to make fine, technical determinations. So to prop up their attack on this commonsense principle, polluters have invented some fake arguments. A few years ago, these industries and their rightwing front groups began arguing that Chevron deference has a separation-of-powers problem. It may make all the sense in the world, but it has a separation-of-powers problem that courts must attend to because they say it gives unchecked and disproportionate power to the executive branch.

The problem with that argument is that it is just not true. It is flatout false. Congress’s legislative grant of administrative authority to Agencies comes with significant checks and balances. I am not going to go into all the details, but for starters, Agency heads are appointed by an elected President and confirmed by an elected Senate. And Agencies may not promulgate rules willy-nilly; they have to take public notice and comments. And Agency rules are subject to judicial review to make sure they are consistent with the rules and the Administrative Procedures Act and the public information and comment and the evidence. That helps make sure that regulations by law have to be both reasonable and consistent with the evidence and the facts. And in Congress, when all that is going on, we exercised direct oversight over these administrative Agencies. We do it through our oversight committees that have specific jurisdiction on specific Agencies. We do it through the appropriations process. Very often you see appropriations riders to control Agency behavior. And we do it through the expedited review of the Congressional Review Act, which we are seeing a lot of now in the Senate, and it allows for a very quick review by Congress of a challenged Agency rule. And, in fact, Congress has used that process to overturn Agency rules 20 times since 2001.

The legal vehicle for the polluters’ attack on Chevron comes in a case called Loper Bright Enterprises. As usual, where polluter interests are involved, this case brought out a rogue’s gallery of what I would call the ‘‘usual suspects’’—front groups that have spent decades trying to dismantle the government’s ability to regulate the big industries that secretly fund the front groups. They arrived at the captured Court at the end of a long process that began with industry-funded think tanks that reverse-engineered fringe ideas and legal theories that will serve rightwing donor interests. Then those fringe ideas and legal theories cooked up in the doctrine factories get taken into other think tanks and around captured trade associations and bounced around and put more and more into the public debate and, ultimately, once they have been credentialed by this echo chamber of front groups, they get pushed—these manufactured legal theories get pushed into courtrooms around the country, very often, through coordinated flotillas of secretly funded amicus briefs.

There is a whole ecosystem of secretly funded corporate front groups that manage this whole process. It seems complicated, but it is less complicated than a piano and people know how to play pianos. Now, much of this is funded by the Koch Brothers—now one is deceased— but the Koch Industries, a political influence operation, which is a powerful, rightwing, dark money political network.

Look at this Loper case. The lawyers who represent the petitioners in this case are working for free—supposedly— ostensibly for a public interest law firm called Cause of Action. This supposed public interest law firm discloses no donors and does not report any employees. As the New York Times discovered in this article, those lawyers actually work for Americans for Prosperity, the central battleship of the Koch Brothers’ political front group armada. That armada, by the way, is very cozy with some of the far-right Justices of the Supreme Court. Indeed, ProPublica has reported that Justice Clarence Thomas has repeatedly flown out to serve as the celebrity draw for the Koch political operations fundraisers, including funding that landed at Americans for Prosperity.

As is now standard practice in these cases, a flotilla of dark money front groups appeared as amici curiae—purporting to be independent but actually with enormous common funding and orchestration. These front groups are frequent flyers that spout anti-regulation arguments before the Supreme Court regularly, like, for instance, the major questions doctrine I mentioned earlier. From the creation of these doctrines in rightwing hothouses, through their amplification via rightwing front groups, to their insertion into legal arguments by rightwing amici, the common thread through the whole process is massive, secret funding from billionaire special interests.

The amici supporting petitioners in the Loper case include 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 friends at the U.S. Chamber of Commerce. All of them have received hundreds of thousands, sometimes millions of dollars from these rightwing donors—from DonorsTrust, from Donors Capital Fund, from the Koch family foundations, from the Bradley Foundation, and in some cases, from good old ExxonMobil itself.

These two—DonorsTrust and Donors Capital Fund—are donor-advised funds that allow ultrawealthy interests to direct funding anonymously to their pet projects. They are essentially identity laundering operations. The money comes in from the donor who wants to be secret. It lands at DonorsTrust. They in turn give it under their own name. The recipient gets it, and there is no record of who the true donor was. DonorsTrust has been described as the ‘‘dark-money ATM of the right,’’ and, with Donors Capital, it has laundered over a third of a trillion dollars—a third of a trillion dollars—into climate denial operations.

Many of these same amici also received Koch Family Foundation funding and Bradley Foundation funding. Those are two other top-10 funders of climate denial. Fossil fuel corporations like ExxonMobil have also directly funded some of these amici. This is an operation. This is a part of a scheme. ExxonMobil has given significant money to the Cato Institute, the Competitive Enterprise Institute, the Landmark Legal Foundation, and the Mountain States Legal Foundation, as well as the Pacific Legal Foundation—and that is what we know. There could be other money that went through DonorsTrust, for instance, and into these groups and the ExxonMobil name was laundered off the funding.

Some of these amici also received funding from groups affiliated with Leonard Leo. Leonard Leo has been the operative for the billionaires in the Court-capture operation. This is a chart of some—some—of the front groups that Leo coordinates. This question of capturing the Court in order to undermine public safety regulations? Trump White House Counsel Don McGahn actually called these two operations ‘‘two sides of the same coin.’’ We have it from inside the White House that these schemes are coordinated. The Loper amicus, Advancing American Freedom, received $1.5 million from Leonard Leo’s Concord Fund— this group—between 2020 and 2021. Leo’s Concord Fund operates under the fictitious name Judicial Crisis Network and, operating under that fictitious name, spent millions of dollars on Court capture—for instance, on advertisements for the rightwing nominees to flood the airwaves with TV ads supporting them. By the way, it also supports Republican State attorneys general, who then challenge Federal regulations the billionaires don’t like before the sympathetic judges who were put on courts through this operation.

Just to give you an idea, the Concord Fund and the 85 Fund are the two kind of base entities. They operate out of the same location with overlapping staff and funders and directors. I would argue that the corporate veil between the two could be pierced with a banana. The operation of these two entities— a conjoined 501(c)(3) and 501(c)4—then has these different legs. Each one of these six legs is a fictitious name—a fictitious name filed under Virginia corporate law—through which these entities operate. It is not a separate thing. It is just a fictitious name for— in this case, Judicial Education Project for the 85 Fund. So these eight organizations are, in effect, the same organization, and out of it, money gets pumped up to these entities, which are Leonard Leo’s means of extracting wealth for himself for his services provided in making sure that this piece of his operation can go forward and help capture the Court. So that is the background of all of this. So when the Judicial Crisis Network shows up here, it is a pretty significant tell that there is more going on here than just independent organizations bringing their views to the Supreme Court.

It is not enough to flood the Supreme Court with this fake onslaught of coordinated amici curiae; there has also been a coordinated editorial campaign. In fact, it has been hard to miss the editorial campaign launched to create favorable ideological terrain for the captured Court’s Justices to end Chevron deference. The rightwing apparatus has cranked out op-eds in just about every major publication across the country in the past week. It has been a surge of propaganda pushing that falsehood about unaccountable bureaucrats.

One particularly odious editorial appeared in the pro-polluter Wall Street Journal editorial page. I refer to it just generally as ‘‘the polluter page’’ because that is its reason for being. It was written in the Wall Street Journal editorial page by Mr. David Rivkin. Mr. Rivkin is described as follows by the Wall Street Journal: Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. But he has done so much more. For instance, he is Leonard Leo’s personal lawyer. This guy, with what my office refers to as the ‘‘Leo bug’’ of phony front groups, has this guy, who authored the Wall Street Journal editorial, as his personal lawyer. By the way, Rivkin is the same guy who several months back gave Justice Alito a very friendly interview right in this Wall Street Journal editorial page to justify Alito’s undisclosed travel on a private jet on a freebie trip accompanied by—oh—Leonard Leo, no less. He is the same guy who, in a current case before the Supreme Court, before Alito, who has not recused himself, is attempting to secure an enormous tax giveaway for billionaires.

Rivkin’s cosigner, Mr. Grossman, Andrew Grossman, is described as ‘‘a senior legal fellow at the Buckeye Institute and an adjunct scholar at the Cato Institute.’’ OK, that is a pretty fair description. By the way, if you go back here— there is the Buckeye Institute, and there is the Cato Institute. They have already briefed the case. The lawyer who writes the brief is now just pumping his own amicus brief in the Wall Street Journal editorial page with the lawyer for Leonard Leo, who did Justice Alito the big favor of trying to head off a Senate investigation into Alito’s travels. So it is a pretty rich mix.

If you look at all of this, what you discover is that this whole scheme is actually pulled off by a very small number of people on the billionaires’ payroll. They are very busy constantly switching hats and running multiple front groups out of the same enterprise so that it looks like there is more, filing multiple briefs in a Supreme Court case so it looks like there is more, but it is actually a pretty small, billionaire-funded operation.

It has just been diabolically effective, and it has begun to pay off for the billionaires. In West Virginia v. EPA, the Supreme Court hobbled Agency authority to regulate for our public health and safety by adopting what they called the major questions doctrine—the same one I mentioned earlier—and that in turn has prompted an onslaught of challenges to administrative regulatory authority from which the administrative law legal landscape is still reeling. There is enormous upheaval from that novel doctrine imported by the billionaire-selected Justices of the Supreme Court into American law.

It would actually add insult to that injury for the Court to break even more precedent by attacking Chevron. Frankly, they may not really even need to because the major questions doctrine is such a powerful weapon in their hands against administrative safety regulation that they may not actually need to do much damage to Chevron. They have a weapon. But it looks from the argument like the Court is actually poised to attack Chevron deference. If it does, it not only will add to the dangers to Americans’ health and safety, against which regulation protects, but it will also move the unaccountable Supreme Court further into the policymaking function properly left under the American system of government to the elected political branches.

In short, it is a power grab by the unelected judicial branch at the behest of and for the benefit of polluter billionaires, and they have done this on the specious grounds—the false grounds—that these administrative Agencies are unaccountable. Well, even if that claim were true, it is hardly solved by moving the locus of decision to the least accountable part of the government—to the U.S. Supreme Court. If your problem is that decisions are being made in unaccountable fashion by bureaucrats, then moving it to even less accountable judges is not a solution to the problem. But the fact of the matter is that they are wrong about the bureaucrats because of the CRA, because of the Administrative Procedures Act, because of the appropriations process, because of congressional oversight, and because of executive appointment to the control of these Agencies. It just ain’t so, but it is a lie that is repeated and repeated and repeated and begins to be echoed by the Justices of the captured Court.

To sum up, by all appearances, a Koch operation-funded legal theory supported by Koch operation-funded amici is about to be deployed by Koch operation-funded lawyers to convince Koch operation-funded Justices to achieve a longstanding goal of Koch industries: the ability to pollute more easily and more cheaply. To twist American law through those techniques for that purpose is a deeply degraded thing. It would be a tragedy for the American people. But do you know what? It is the scheme in a nutshell. It is why all the effort was put together—the hundreds of millions of dollars were spent—to capture and control the U.S. Supreme Court for the benefit of a small cabal of creepy billionaires.

To be continued.