June 24, 2019

Whitehouse Remarks at 2019 Public Citizen Gala

As-prepared for delivery

Thank you, Lisa, for that kind introduction.

It’s an honor to be here today with Desmond Meade.  What a remarkable story of perseverance and service to our democracy.  His is the kind of strength we will need in the fights to come.

I have been battling side-by-side with Public Citizen for a very long time now.  We both recognize the threat to our democratic institutions from an excess of corporate power.  We are both fighting for reforms to preserve access to the courts, empower voters in the face of unlimited dark money spending, and root out corruption in government. 

The particular brand of corporate power we fight today is not, as many on the right would have us think, rooted in the Constitution.  Indeed, a brute role in American government for giant corporations would shock the Founding Fathers, who foresaw no important role in our Republic for the corporations of the time.

The corporate power we confront today has been engineered by corporations themselves.  In 1971, prominent corporate lawyer and future Supreme Court Justice Lewis Powell wrote a secret memo to an official at the U.S. Chamber of Commerce.  He said, “the American economic system” – by which he seems to mean the power of corporate America – “is under broad attack” from academics, the media, leftist politicians, and other progressives.  To counter the progressive spirit that had delivered the New Deal and Great Society, Powell wrote, it was time for an unprecedented influence campaign on the part of corporate America.  He said:

. . . independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient.  Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.

Today, we see how much that campaign has delivered.  Pro-corporate judges are reshaping our judiciary to benefit corporate, right-wing donors.  Industry operatives, like the polluter lobbyists and lawyers leading the EPA, fill executive agencies to serve their former employers and patrons.  Industry front groups exploit our toothless campaign finance system to spend unlimited dark money in elections, drowning out the voices of actual candidates and voters.

This explosion of special interest influence didn’t happen overnight.  It was a carefully orchestrated and richly funded operation, as Powell suggested. 

Much of their operation hinges on political and judicial influence.  Through the decades, conservative ideological donors like the Kochs, industries like big tobacco and fossil fuels, and corporate fron groups like the Chamber and the National Association of Manufacturers fought in legislatures and courts to rig our political and governmental systems in their favor.

The biggest win came in 2010 with the Supreme Court’s decision in Citizens United.  Against the bipartisan will of Congress, five Republican-appointed justices opened the floodgates for unlimited anonymous corporate spending in elections.  They posited that corporate corruption of elections was near impossible.  However, that decision triggered the “tsunami of slime”—to use a phrase that I borrow—that we have seen in recent election cycles.

In the wake of Citizens United, industry groups instantly found ways not only to use but to disguise their exercise of this new political weaponry.  In practice, Citizens United gave their forces triple power:  to spend in unlimited fashion; to hide their spending in dark money channels; and to use that power to threaten and cajole.  This power ground Congress to a stop on hugely important issues. 

Take climate, for example.  When I arrived in the Senate in 2007, there was a steady bipartisan heart beat of action on climate change.  Following Citizen United, that heart beat flatlined.  The fossil fuel industry, through its massive lobbying and political operation, could crush any Republican who failed to fall in line.  In nearly a decade since that decision, not one Republican senator has signed on to a significant bipartisan climate bill.

Increasingly, the courts are on lockdown, too.  That is the work of the corporate-backed Federalist Society and its leader, conservative kingmaker Leonard Leo.  As a FedSoc member who was Trump White House Counsel quipped, the Federalist Society has been “insourced” to select Trump’s biggest judicial appointments. 

But the Federalist Society isn’t the only thing Leo controls.  As the Washington Post revealed in a recent investigation, Leo is at the head of a sprawling network of front groups that serve a range of purposes.  That network is worth roughly $250 million dollars of dark money, the Post reckons, and can carry out virtually any task necessary for exerting control over our courts.

Take the Judicial Crisis Network, led by a disciple of Leo’s and a former clerk for ultra conservative Justice Clarence Thomas.  JCN has been described as, and I quote here, “Leonard Leo’s PR organization—nothing more and nothing less.”  When it comes time to muscle a judicial nominee through Senate confirmation, JCN swings into action.  Media campaigns.  Attack ads.  Big spending.  That’s the JCN’s world.  And like the FedSoc judicial selection machinery, it is funded by dark money.

While JCN and its ilk provide the political artillery, other front groups instruct the courts on how to rule.  We have tracked a range of such groups, like the Pacific Legal Foundation and the Becket Fund, as they file amicus briefs signaling what results big donors want to judges stocked by the Federalist Society.  Through these filings, major conservative donors like the Kochs, Bradleys, and Mercers spend millions to pursue an anti-regulation, anti-union, and anti-environment agenda.

The proof of this conservative campaign’s success is in the pudding.  Under Chief Justice Roberts’s tenure, through the end of October Term 2017-2018, Republican appointees delivered partisan 5-4 rulings that favor corporate or Republican partisan special interests 73 times.  Consider that:  not three or four times, not even a dozen or two dozen times, but 73 victories delivered for big Republican interests, with no Democratic appointee joining the majority.

Like Public Citizen, I believe firmly in transparency and accountability – and that the American people, not corporations, ought to control our government.  I am proud to fight with you for legislation like the DISCLOSE Act, to neutralize dark money, and the AMICUS Act, to shed light on corporate and right-wing partisan influence on our courts.  I am also proud to fight with you against the rampant corruption shot through the Trump administration. 

Thank you for your commitment to a government of, for, and by the people.  I wish you all great success in the battles ahead.