February 18, 2022

In the federal court wars, the right has jumped through a dark-money looking glass

When Supreme Court vacancies occur, a Republican dark-money operation swings into action.

Now, an anonymously funded right-wing group is airing an ad aimed at the yet-to-be-picked nominee to replace retiring Supreme Court Justice Stephen G. Breyer. The group alleges that liberal dark-money interests will guide President Biden’s choice. The music is ominous, the central claim false, and the hypocrisy thick.

In nature, some creatures develop ingenious defenses. The squid, for instance, can squirt a jet of ink into the water to create a confusing distraction. On Americans’ airwaves right now, this ad is the dark-money equivalent of squid ink.

The ad, launched by the same right-wing donor interests that captured our Supreme Court under President Donald Trump, is an effort to distract from their own dark-money operation. Their accusations of dark-money corruption are a bizarre reimagining of the very strategy that they, themselves, hatched and executed.

The group running the ad, the Judicial Crisis Network, isn’t even real. Legally speaking, the “Judicial Crisis Network” is one of several “fictitious names” created under a provision of Virginia corporations law that mask another organization called the Concord Fund. The Concord Fund and its array sit within a network of conservative groups that often share addresses, donors and staff; it was even traced to the same hallway in the same building as the Federalist Society — the gateway for conservative lawyers seeking nominations to the federal judiciary.

Those dark-money groups are linked to Leonard Leo, Federalist Society co-chairman and former executive vice president. Leo has been a force behind dark-money court-capture dating back to the George W. Bush administration. When Trump was elected, this operation ramped up: The network selected reliable right-wing judicial nominees, its trusted advisers shepherded nominees through the Senate, and millions in dark-money PR campaigns and ads propelled nominees’ toward confirmation. Thus, today The Court That Dark Money Built reliably hands down decisions favorable to the donors.

Massive sums of dark money poured into the effort. According to The Post and researchers building on its reporting, the Leo network took in over $400 million in dark money to engineer the takeover of the federal judiciary. According to Federal Communications Commission filings, the Judicial Crisis Network propaganda machine — in its various guises — has placed more than 10,000 ads since 2012 in pursuit of this mission. The spending was big, and so were the donor’s checks: We found two for about $15 million to $17 million, two more for just over $17 million and one whopper for $48 million. So, for the dark-money enterprise to hurl allegations of dark-money mischief is pretty rich.

Yes, progressive groups receive anonymous donations, because Democrats have to play by the rules Republicans set, or else we unilaterally disarm. We came late to the game, but now we’re there. The difference is this: Democrats want to clean up this god-awful dark-money mess; Republicans created it and protect it.

It’s an old propaganda technique: Accuse your adversary of the exact wrong you are committing. Russian President Vladimir Putin uses it regularly. It creates confusion about who is responsible for the dark-money regime that the public hates. But that’s not all. It takes the public eye off the Roberts Court’s pattern of more than 80 partisan 5-to-4 and 6-to-3 decisions benefiting easily identified Republican donor interests. Those wins often come at the expense of regular Americans, stripping away protections for minority voters, reproductive rights, the environment, public health and workers. And they often degrade our democracy: greenlighting gerrymandering, protecting dark money and suppressing the vote.

That’s why, as Politico recently reported, the Senate boss of the court-capture operation, Minority Leader Mitch McConnell (R-Ky.), is urging GOP colleagues to keep a low profile on Biden’s Supreme Court nominee. One liberal justice exchanged for another isn’t worth the fuss; let the attack groups squirt dark-money squid ink instead.

The real test on dark money is to support legislation to clean it up. Every single Senate Democrat has voted in favor of my bill — the Disclose Act — to end dark money in our politics and judiciary. Even the liberal groups targeted in the Judicial Crisis Network ad back this measure. But dark-money power is too important a weapon for right-wing donors to abandon, which explains why, just a few weeks ago, Senate Republicans filibustered to block that from passing.

As the dark-money squid ink flows in the weeks and months ahead, Americans should keep their eye on that voting record — and an eye on the outcomes from The Court That Dark Money Built.

By: Sheldon Whitehouse