August 5, 2021

The Scheme Speech 6: Judicial Crisis Network

Mr. WHITEHOUSE. Mr. President, these speeches on the scheme by dark money interests to seize control of the Supreme Court are designed to describe it in all its repulsive intricacy.

My last speech discussed an operation in this scheme within the Federalist Society. This speech will take you literally down the hall from the Federalist Society to something called the Judicial Crisis Network, or JCN. They share the same purpose, the same hallway, and likely the same controlling donors.

Remember David Koch’s disastrous bid for Vice President on the Libertarian Party ticket that showed how unappetizing his rightwing extremism was to normal people. And remember the Lewis Powell playbook, which advised:

Strength lies in organization . . . and in the political power available only through united action and national organizations.

No one corporation or wealthy individual needs to, as Powell said, “get too far out in front and . . . make itself too visible a target.” Let intermediaries do that work.

Corporate interests like Big Tobacco and the fossil fuel industry have, for a long time, used coordinated webs of national front groups in their plots to fend off accountability for the dangers of tobacco and carbon emissions.

These front group webs grew and multiplied and specialized, all while concealing their true interests and funders. They got more numerous, and they also got smarter and more strategic over time, polishing up front group names, like the not-too-subtle Tobacco Institute, to names like the more wholesome-sounding Heartland Institute.

It is quite a web. They created science groups to counter real scientific research on public health and climate change with fake science; think tanks to churn out white papers and hire sound bite- friendly fake experts; legal organizations to challenge and delay government regulation of harmful products; academic hothouses in which to grow donor-friendly, rightwing judicial philosophies; identity- laundering screens to hide the true donors and controllers and their interests; and political attack groups to pressure elected officials. People who study this have reported these groups numbering in multiple dozens, and their backers play the front groups like keys on a piano.

Apply this method to the scheme to capture the Court, and you see that the dark money donors needed more than just the nominations turnstile that they ran out of the Federalist Society. They also needed a bare-knuckle political brawler.

One night in early 2005, at an upscale Italian dinner, with special guest Justice Antonin Scalia, major donor and corporate lawyer Ann Corkery, California real estate tycoon Robin Arkley, and Federalist Society executive vice president Leonard Leo got together and celebrated George W. Bush’s second term. The political importance of the Supreme Court would have been on everyone’s mind there as it was the five Republicans on the Supreme Court who gave George W. Bush his first term.

According to reporting by OpenSecrets and the Daily Beast, this dinner linked to the creation of a 501(c)(4) dark money group, then called the Judicial Confirmation Network. By the end of that year, this group would spend money–lots of money, lots of big donor money–and they would spend it anonymously, first to boost John Roberts as Chief Justice and then Samuel Alito as Associate Justice, cementing rightwing corporate control over the Court and shifting its decisions further in big donors’ favor.

There are a few things to note about the Judicial Confirmation Network’s early days:

One, it began work fast. Just months after starting, JCN ads hit the air in support of Bush nominees.

Two, it had lots of money. Beginning in 2008, Ann Corkery took control of something called the Wellspring Committee–a dark money, identity-laundering group, seeded with funding from Charles and David Kochs’ donor network. Thereafter, Wellspring funneled seven- or eight- figure dark money donations to JCN every year–millions of anonymous dollars.

Three, they brought on a lawyer with heavy rightwing chops to run the place. Wendy Long, a former clerk to Justice Clarence Thomas, became chief counsel and mouthpiece.

Thus, in just a few months, JCN appeared and became a polished, powerful, anonymized campaigner for the big donor scheme to take over the Court.

And then came the election of Barack Obama, and JCN had to go from offense for nominees to defense against nominees. That “C” in JCN, for “confirmation,” no longer made much sense, and the scheme now faced a crisis–the crisis for it of a President nominating judges who had not been screened by them, judges whose fealty to the corporate rightwing could not be confirmed, judges who might even rule against the rightwing donors’ agenda. So they quickly rebranded JCN as the Judicial Crisis Network, but even in the Obama years, the Republican 5- to-4 majority on the captured Court delivered big things for JCN and its secretive backers.

In the administration’s first term, the Roberts Court handed down Citizens United and other decisions opening donor pipelines to 501(c)(4) groups like JCN. This caused the tsunami of slime we saw in our politics, and corporations and rightwing donors rushed to the feast. Anonymous money flooded in. Annual donations laundered through Wellspring to JCN rose from millions of dollars to many millions of dollars. JCN even expanded the scheme to seek to influence State supreme courts and State attorney general seats. The scheme was flourishing.

Then, on a 2016 all-expenses-paid trip for Justice Scalia to a luxury hunting ranch in Texas, the Justice died, leaving a Supreme Court vacancy, with the better part of a year left before the Presidential election. Now there really was a crisis. The big donors suddenly faced the prospect of a Democratic President appointing Scalia’s replacement, shifting the balance of the Court 5 to 4 against them, taking away their precious majority, undoing the scheme.

So the donors swung into action. Within days, Mitch McConnell quickly pledged to hold the seat open, and within days, Republican Senators uniformly lined up behind that decision–a decision very possibly explained by the overlay between dark money donors to the scheme and dark money donors to Republican Senate political operations. History will have to judge the extent of that overlay.

In any event, dark money funding of JCN hit escape velocity during this period. According to tax records obtained by OpenSecrets and others, JCN received big donations in fiscal year 2015 to 2016. One single anonymous donation alone totaled $17.9 million. Wellspring separately channeled $23.5 million in dark money to JCN in 2016, then another $14.8 million the next year. When Wellspring dissolved in 2018, big slugs of dark money continued to flow through other conduits. JCN received four separate, individual, anonymous donations, each of $15 million or more following Justice Scalia’s death. We cannot say for sure because the donors hide behind the dark money screen, but these donations, over $60 million in all, could well have all come from the same donor.

And one wonders, what are the odds that someone willing to spend $60 million anonymously to influence the makeup of the Supreme Court is someone who has business before the Court?

Pretty high, I would say, but dark money scheming keeps this information secret.

How did JCN spend all this money? Attack. Leonard Leo’s Federalist Society operation had handed Trump a list of approved nominees. JCN spending poured into TV ads, pressuring Senators, and to media blitzes to sell the Federalist Society list. The group spent $7 million to attack Merrick Garland; $10 million to boost Neil Gorsuch; $10 million or more to prop up Brett Kavanaugh’s deeply troubled nomination with its–now we know–fake FBI tip line; and $10 million in under 2 months to support Amy Coney Barrett.

On its own, this anonymous $37 million barrage smells terrible, but it is only part of the Judicial Crisis Network operation. JCN has a corporate twin, the Judicial Education Project, each group backing up the actions and finances of the other. Let me walk you through this setup because it is a capsule summary of how political scheming is accomplished in our corrupted dark money era.

First, you pair a 501(c)(3) and a 501(c)(4). The Judicial Crisis Network was chartered as a 501(c)(4) social welfare group, the Judicial Education Project as its allied 501(c)(3) nonprofit organization. Under a perverse reading of the law, the 501(c)(4) organization is allowed to operate as a dark money political attack group. We see this arrangement commonly now in the clandestine world of dark money politics.

In fact, a recent Supreme Court case about dark money was brought by a group called Americans for Prosperity Foundation, which was the 501(c)(3) associated with Americans for Prosperity, which is the Koch brothers’ 501(c)(4) that spent millions of dollars to help Amy Coney Barrett get her seat, and yet she didn’t recuse herself from the case involving the 501(c)(3).

So, second, you operate the two as one unit: Judicial Crisis Network and Judicial Education Project are connected by staff, by dollars, and by location.

According to the most recent tax records, long-serving JCN staffer Carrie Severino is also the sole and principal officer of–you guessed it–the Judicial Education Project. Severino is not listed on JCN’s tax forms, but she serves as its public-facing “chief counsel and policy director.” JCN and JEP tax records both list the same address in Washington, DC, which, by the way, is right down the hall from the Federalist Society at the same address, and both groups share day-to- day staff. There is a doctrine in the law called piercing the corporate veil. In this case, the corporate veil between these two is a web of holes.

What is the next thing you do? You soak up dark money together. It is hard to know much about these two groups’ dark money funding– that is why they keep it dark–but we know the Wellspring Committee has funded both groups. Both have also paid money to something called BH Group, which is a mysterious LLC that Leonard Leo once disclosed as his employer, that made a $1 million mystery donation to Trump’s inaugural. It seems to do no other business. They used the 501(c)(3) and 501(c)(4) status precisely because it lets them hide their donors and controllers.

And the last thing is that you get to play shell games with your name. A couple of years ago, those two organizations formally changed their legal names in Virginia. Now, follow this for a minute. Judicial Crisis Network changed its name, and it became the Concord Fund.

Judicial Education Project changed its name, and it became the 85 Fund. The Concord Fund then registered its old name, Judicial Crisis Network, as what is called a fictitious name, a kind of corporate alias under Virginia law, and continued to operate as the Judicial Crisis Network.

Here is the Virginia law that allows them to do that:

A fictitious name is a name that a person (individual or business entity) uses instead of the person’s true name, usually in the course of transacting or offering to transact business.

It also registered the name “Honest Elections Project Action” as an additional fictitious name to carry out a new voter suppression project. The 85 Fund likewise registered its old name, the “Judicial Education Project,” as a fictitious name, and it separately registered as the “Honest Elections Project” as an additional fictitious name.

It gets even better than this because, as I said before, when the Washington Post exposed the $250 million scheme that Leonard Leo was at the center of to pack and control the Supreme Court, to capture it like a captured agency, he wasn’t much use any longer. He was like a blown agent in a covert operation. He had to go someplace. Where did he hop to? He hopped from the Federalist Society to the Honest Elections Project so he could get to work on the Presiding Officer’s favorite cause, voter suppression. Same guy, same corporate network, new name, and new purpose: voter suppression.

As if this weren’t enough, both of these groups have now filed new fictitious names. This is to help them wade into the rightwing fuss over what the rightwing likes to call critical race theory. So the Concord Fund has now added the fictitious name “Free to Learn Action,” and the 85 Fund has now added the fictitious name “Free to Learn.” Again, you see the pairing of the 501(c)(3) and the 501(c)(4) as part of the basic structure for dark money political influence operations.

By the way, the same person filled out all these forms for both organizations and is listed with various titles on each.

So now we have one group that calls itself the Concord Fund that operates simultaneously as the Judicial Crisis Network, the Honest Elections Project Action, and the Free to Learn Action, and we have a sister organization, the 85 Fund, that operates simultaneously as the Judicial Education Project, the Honest Elections Project, and Free to Learn–all with overlapping staff, locations, and funding.

By the way, when you are the funder of these groups, you are their controller.

Now, imagine this level of complexity multiplied many times over, because that is what the Washington Post disclosed. And I borrow a photograph from their video of their investigation.

That Washington Post expose on the covert court-capture operation exposed the Judicial Crisis Network as one part, just one part of a massive–there it is, Judicial Crisis Network–one part of a massive web of groups, a web of groups that took in over $250 million in dark money between 2014 and 2017.

This effort to capture the Supreme Court? They are not kidding around. Spending $250 million in dark money is a serious investment that demands a serious return. And guess what. Expert testimony before my Senate Courts Subcommittee has since raised that number to $400 million through 2018.

Through all these allied and coordinated front groups–the keys on the dark money piano that the big donors can play in chords and singly as they wish–dark money donors can, from hiding, covertly channel tens if not hundreds of millions of dollars in anonymized money toward the scheme’s court-capture goals.

Colleagues, this is a scheme akin in complexity and trade craft to an intelligence agency covert operation–only this one is not being run by one country against another; this one is being run in and against our own country by a handful of creepy billionaires and their foundations, trying to impose their self-serving ideology on the rest of us through our least democratic branch–the branch that doesn’t care if normal people hate this stuff because they are in robes for life. That is our Federal courts, and particularly, it is our Supreme Court.

The big dark money donors have pretty well pulled it off, too, following Lewis Powell’s old admonition to use “strength . . . in organization” and “united action” of all of this complexity. They have just made it all clandestine, which is why I am going to keep digging.

To be continued.