December 4, 2019

Whitehouse Remarks at the National Press Club

We know well the corrupting force of dark money in our elections, but it’s also now swarming our courts.

It is an honor to be with you today at the National Press Club. 

At Bunker Hill, Daniel Webster remarked on how America “set the world an example of founding civil institutions on the great and united principles of human freedom and human knowledge.”  A free press stands proudly among those institutions.  You are not the enemy of the people, but a pillar of American democracy and a safeguard against corrupt influence.  So thank you.

I seem to be in recurring combat against corporate and partisan interests grasping at the levers of power in Washington.  That fight unfolds in each branch of government in different ways, but the forces at work are pretty much the same, and they are evident in, or affect, many of the stories you write about Washington.  Even if money and influence is not your beat, “dark money” forces are important to understand.

We know well the corrupting force of dark money in our elections, but it’s also now swarming our courts.

First, some backstory, because there has been a plan.

In 1971, prominent corporate lawyer and future Supreme Court Justice Lewis Powell wrote a memo for the U.S. Chamber of Commerce.  He said, “the American economic system” – which seems to mean the power of corporate America – “is under broad attack” from academics, the media, leftist politicians, and other progressives.  Against the nefarious forces of the anti-war, civil rights and environmental movements, Powell wrote:

. . . 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.  Polluter lobbyists and lawyers lead the EPA.  Industry front groups disabled our campaign finance system and now spend unlimited dark money in elections.  The firearms industry holds the Republican Party firmly in its grip on firearms.  It’s pandemic.

This armada of special interest influence, carefully orchestrated and richly funded, has turned its attention to the courts.  Indeed the Powell Memo referenced the importance of “activist” courts to help the corporate cause.  For decades, conservative ideological donors like the Kochs, big tobacco, fossil fuel, and corporate front groups like the Chamber and the National Association of Manufacturers, fought for control of the courts.  Their payback has been rich. 

Just one win would justify the effort: the 2010 Supreme Court’s decision in Citizens United, when five Republican-appointed justices opened the floodgates for unlimited spending in elections.  Unlimited spending instantly led to anonymous unlimited spending, and triggered what one newspaper called the “tsunami of slime” we have seen in recent elections.  This year, “dark money” spending reported to the FEC exceeded $1 billion.  In practice, Citizens United gave powerful influencers triple power:  to spend in unlimited fashion; to hide their spending in dark money channels; and to wield that power to quietly threaten and cajole.  And, super deal, if the threats work, you don’t have to spend the money. 

That’s the kind of result you can achieve from just five Justices, so the campaign to capture the federal courts goes ahead full steam, under Trump at breakneck pace.

The Washington Post revealed earlier this year a sprawling network of organizations funded by at least a quarter-billion dollars of largely anonymous money, and spearheaded by the Federalist Society’s Leonard Leo.  This network played a big role in the confirmations of Justices Neil Gorsuch and Brett Kavanaugh.  One anonymous donor gave $17 million to the Leo-affiliated Judicial Crisis Network for political campaigns against Judge Merrick Garland and for Gorsuch; then came another $17 million for the political campaign to prop up Kavanaugh, likely from the same donor.

That would mean someone spent $35 million to influence the composition of the Supreme Court.  Presumably, they’d expect results.

This dark money network applies its influence at all levels of the judiciary and all phases of the process.  Leo helped compile Trump’s list of potential Supreme Court nominees; he helped move Kavanaugh onto and to the top of the list; he’s even gone to Florida to advise the Republican Governor’s selection of state Supreme Court nominees.  Leo’s network vets nominees; helps prepare them for confirmation; runs PR campaigns for them; and once a judge is on the bench, it signals donors’ wishes to them through amici curiae who, like the Federalist Society and the Judicial Crisis Network, are funded by dark money.

The Supreme Court is now enmired in dark money.  Dark money influences the selection of the justices.  Dark money funds political campaigns for their confirmation.  Cases are brought to the Court not just by regular real litigants, but by dark-money funded litigation groups that shop for, or manufacture, plaintiffs of convenience to bring strategic cases before the Court.  The Court is swarmed with amicus groups funded with dark money (in one Supreme Court case, an anonymously-funded group backed 13 different amicus briefs).  And because the Court has no ethics code and is so secretive about reporting gifts, travel and other emoluments, we don’t know whether these dark money groups aren’t also funding the justices’ social lives. 

It is urgent and proper that we know who these dark money donors are, so we can evaluate what business they have before the Court, so we can root out conflicts of interest and partisan or corporate bias.  No Court should be so enmired in dark money.

Neil Gorsuch and Brett Kavanaugh were the big prize for Leo’s dark money donors, locking in a 5-4 majority that delivers reliable wins for big Republican donor interests.  We all know the most flamboyant 5-4 partisan victories:  for corporations, against organized labor (Janus v. AFSCME); for Republican candidates, against voter protection laws (Shelby County v. Holder); for the NRA, against gun safety laws (District of Columbia v. Heller); and of course the crowning special interest bonanza of Citizens United.

But we can miss the forest for these great big trees.  These four cases are part of a pattern of the Roberts Court:   through the 2018 term, there are now 80 partisan 5-4 decisions in civil cases that implicate big Republican donor interests – interests like protecting corporations from accountability, undermining public regulatory protections, and helping the Republican Party at the polls.  In those 80 cases, those big donor interests won every single time; a staggering 80-0 rout. 

So there is a dual problem with our Court: not only the web of special interest, secret donor influence surrounding it; but an extraordinary record — a pattern — of partisan 5-4 decisions benefitting big Republican donor interests.  The likelihood that there is no link is vanishingly small, and a big dose of transparency is long overdue. 

I wrote of this problem in an amicus brief to the Court recently, which kicked up a right-wing ruckus that takes me to my last point. 

This speech is partly to highlight this record of 5-4 partisan wins delivered for big Republican donor interests by Republican appointees on the Supreme Court; and partly to highlight the peculiar way Republican dark money now lurks behind the selection of Justices, the campaigns for their confirmation, the law groups who bring strategic cases behind plaintiffs of convenience, the armada of front-group amici telling the Court how to rule, and perhaps even the social lives of the justices themselves. 

But it’s also a field biology lesson.  Because when you give the powerful interests lurking behind the right wing a scare, their behavior follows a pattern, of which the press should be aware. 

I observed this behavior first when I suggested that climate denial could be actionable fraud under the civil RICO statute.  I did that first in an opinion piece, and then again about a year later in a Judiciary Committee hearing.  My comparison to DOJ’s successful civil lawsuit in the 1990s against the tobacco industry — well, it struck a nerve!

The same behavior happened again over my amicus brief calling out this record of partisan wins for big donor interests, and the dark money lurking all around the Court. 

I touched a nerve both times, because denying the reality of climate change and capturing the federal courts are central purposes of the big right-wing funders.  These salvos hit the funders in a sensitive spot — and the behavior followed.  The behavior, in a nutshell, was to take whatever scared them, recast it into something outrageous — at least to the far right — and crank up right-wing media outlets to dump out dozens of media pieces, all in a common tone of faux outrage. 

Let’s look at the field guide elements of this reaction.  The first telltale of this behavior was that the reaction arose entirely out of right-wing media, after little or no splash in the mainstream, legitimate press.  Perhaps the whole regular media had missed something important; but more likely I had triggered something important to these interests, who then orchestrated the reaction.  The regular media took note after the noise level from the right-wing mouthpieces itself became newsworthy. 

The second telltale was the timing.  Reaction on the right started up within a day or so, and persisted at a steady rate for a couple of weeks, and then ended.  It came, it stayed, and then it went, like a media campaign.

A third telltale is that much of the product was written by “usual suspects.”  Some of the authors reliably deliver right-wing outrage over a wide variety of topic areas; others specialize in facilitating the right-wing climate denial or court-capture enterprises.  Once you know the players, you recognize the “dramatis personae” of the right-wing machine.  Occasionally, the same cast member even fired off multiple similar pieces in different outlets — another signal of an artificial effort.

A fourth telltale was strikingly similar analogies, language, and talking points.  My personal favorite was when the Wall Street Journal editorial page had to post an editor’s note “apologiz[ing] for the similarity” of its editorial to an earlier article in the National Review.  (For the record, I accept that the Wall Street Journal did not plagiarize the National Review; I think both pieces were drawn off the same talking points.)

The fifth and most telling red flag is that the hook — the locus of the faux outrage — is demonstrably not true.  A crowd of people all saying the same true thing doesn’t tell you much; when people are all saying the same false thing, that’s a tell that something’s up. 

When I suggested the tobacco case as precedent for investigating fossil-fuel-funded climate denial, the faux-outrage falsehood was that I wanted a criminal investigation, to throw people I disagreed with in “prison.”  A very cursory look, either at what I actually said, or at the actual record of the tobacco case, would have shown that it was a civil lawsuit, not a criminal prosecution.  The remedy was that the tobacco industry had to cease and desist from its fraudulent behavior; no one went to prison.

But it’s easier to whip up faux outrage over ‘criminalizing disagreement,’ than it is over an industry having to cease systematic fraud.  So that’s what they made up.

On my Supreme Court brief, the common fabrication was that we wanted to “pack” the Court with extra justices.  This accusation, at a time when right wing interests are systematically packing the Court, is ironic.  But, more to the point, it’s not what we said in the brief. 

I have never supported expanding the Court.  I have supported changes at the Court: a binding Code of Ethics; better disclosure of gifts and hospitality; less appellate “fact-finding”; real disclosure of dark-money funders around the Court; fewer partisan 5-4 decisions — all of which are entirely reasonable.  Precisely zero of the outrage articles addressed any of those proposals.  The only proposal they did discuss was a fabricated one.

A field biologist would feel right at home analyzing the collective behavior of the Republican donor interests.  When you’ve spent some time in this field, you become familiar with these beasts: with their pattern when provoked of herd behavior, threat display, and camouflage; and with their array of phony front groups and obedient mouthpieces.  This orchestrated behavior signals things that these donor interests don’t want people to look at or talk about.  Which is precisely why it’s important to keep exposing them and calling them out.  And why it’s important that the legitimate media recognize this behavior and understand it when you see it in the field.