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Dark Money & Barrett Nomination: The Link Between Big Polluters & the War on ACA, Roe & LGBT Rights

StoryOctober 16, 2020
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During confirmation hearings this week for Supreme Court nominee Amy Coney Barrett, Democratic Senator Sheldon Whitehouse of Rhode Island opted not to ask the judge any questions. Instead, he gave a 30-minute presentation on how right-wing groups, including the Federalist Society and Judicial Crisis Network, use dark money to shape the nation’s judiciary. We air excerpts from his presentation and get reaction from Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I’m Amy Goodman.

As we continue our coverage of the now-concluded hearings for Supreme Court justice nominee Amy Coney Barrett, we turn to Democratic Senator Sheldon Whitehouse of Rhode Island. On Tuesday, he opted not to ask Judge Barrett any questions. Instead, he gave a 30-minute presentation on how right-wing groups, including the Federalist Society and Judicial Crisis Network, have used dark money to reshape the nation’s judiciary. This is an excerpt.

SEN. SHELDON WHITEHOUSE: My experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. Now, people may say, “Well, what does all this matter? This is a political parlor game. It’s no big deal.” Well, there are some pretty high stakes here that we’ve been talking about here on our side. And I’ll tell you three of them right here: Roe v. Wade, Obergefell and the Obamacare cases. …

In all cases, there’s big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It’s managed by a guy — was managed by a guy named Leonard Leo, and it’s taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection, run by this guy Leonard Leo.

Then, in another lane, we have, again, anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and it’s doing PR and campaign ads for Republican judicial nominees. It got $17 million — a single $17 million donation in the Garland-Gorsuch contest. It got another single $17 million donation to support Kavanaugh. Somebody, perhaps the same person, spent $35 million to influence the makeup of the United States Supreme Court. Tell me that’s good.

And then, over here, you have a whole array of legal groups, also funded by dark money, which have a different role. They bring cases to the court. They don’t wind their way to the court, Your Honor; they get shoved to the court by these legal groups, many of which ask to lose below so they can get quickly to the court to get their business done there. And then they turn up in a chorus, an orchestrated chorus of amici.

Now, I’ve had a chance to have a look at this. And I was in a case, actually, as an amicus myself, the Consumer Financial Protection Board case. And in that case, there were one, two, three, four, five, six, seven, eight, nine, 10, 11 amicus briefs filed, and every single one of them was a group funded by something called DonorsTrust. DonorsTrust is a gigantic identity-scrubbing device for the right wing, so that it says DonorsTrust is the donor without whoever the real donor is. It doesn’t have a business. It doesn’t have a business plan. It doesn’t do anything. It’s just an identity scrubber. And this group here, the Bradley Foundation, funded eight out of the 11 briefs.

That seems weird to me, when you have amicus briefs coming in little flotillas that are funded by the same groups but nominally separate in the court. So I actually attached this to my brief as an appendix. Center for Media and Democracy saw it, and they did better work. They went on to say which foundations funded the brief writers in that CFPB case. Here’s the Bradley Foundation for $5.6 million to those groups. Here’s DonorsTrust, $23 million to those brief-writing groups. The grand total across all the donor groups was $68 million to the groups that were filing amicus briefs, pretending that they were different groups.

And it’s not just in the Consumer Financial Protection Board case. You might say, “Well, that was just a one-off.” Here’s Janus, the anti-labor case, that had a long trail through the court, through Friedrichs and through Knox and through other decisions. And SourceWatch and ProPublica did some work about this. Here’s DonorsTrust and Donors Capital Fund. And here’s the Bradley Foundation. And they totaled giving $45 million to the one, two, three, four, five, six, seven, eight, nine, 10, 11, 12, 13, 14, 15 groups that filed amicus briefs, pretending to be different groups, and both of the lawyer groups in the case, funded by DonorsTrust, funded by Bradley Foundation in Janus.

This is happening over and over and over again, and it goes beyond just the briefs. It goes beyond just the amicus presentations. The Federalist Society — remember this group that is acting as the conduit and that Donald Trump has said is doing his judicial selection? They’re getting money from the same foundations — from DonorsTrust, $16.7 million; from the Bradley Foundation, $1.37 million; from the same group of foundations, total, $33 million.

So, you can start to look at these, and you can start to tie them together — the legal groups, all the same funders, over and over again, bringing the cases and providing this orchestrated — orchestrated — chorus of amici. …

This is a, to me, pretty big deal. I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used. Here’s how The Washington Post summed it up: This is “A conservative activist’s behind-the-scenes campaign to remake the nation’s courts.” And it’s a $250 million dark money operation. …

But there’s another piece of it. And that is not what’s ahead of us, but what’s behind us. What’s behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics. One, they were decided 4 to 4 by a bare majority. Two, the 5-to-4 majority was partisan, in the sense that not one Democratic appointee joined the five. I refer to that group as the “Roberts Five.” It changes a little bit as — with Justice Scalia’s death, for instance — but there’s been a steady “Roberts Five” that has delivered now 80 of these decisions. And the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case, that donor interest won. …

And it’s important to look at where those cases went, because they’re not about big public issues like getting rid of the Affordable Care Act, undoing Roe v. Wade and undoing same-sex marriage. They’re about power. And if you look at those 80 decisions, they fall into four categories over and over and over again. One, unlimited and dark money in politics. Citizens United is the famous one, but it’s continued since, with McCutcheon, and we’ve got one coming up now. …

Next, knock the civil jury down. Whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence. But it’s annoying to big corporate powers, because you can swagger your way as a big corporate power through Congress. You can go and tell the president you put money into to elect what to do. He’ll put your stooges at the EPA. It’s all great, until you get to the civil jury, because they have an obligation — as you know, Judge Barrett, they have an obligation under the law to be fair to both parties, irrespective of their size. You can’t bribe them. You’re not allowed to. It’s a crime to tamper with the jury. It’s standard practice to tamper with Congress. …

Third — first was unlimited dark money. Second was demean and diminish the civil jury. Third is weaken regulatory agencies. A lot of this money, I’m convinced, is polluter money. The Koch Industries is a polluter. The fossil fuel industry is a polluter. Who else would be putting buckets of money into this and wanting to hide who they are, behind DonorsTrust or other schemes? And what do — if you’re a big polluter, what do you want? You want weak regulatory agencies. You want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress. …

And the last thing is in politics, in voting. Why on Earth the court made the decision, a factual decision — not something appellate courts are ordinarily supposed to make, as I understand it, Judge Barrett — the factual decision that nobody needed to worry about minority voters in preclearance states being discriminated against, or that legislators would try to knock back their ability to vote. These five made that finding in Shelby County against bipartisan legislation from both houses of Congress, hugely passed, on no factual record. They just decided that that was a problem that was over, on no record, with no basis, because it got them to the result that we then saw. What followed? State after state after state passed voter suppression laws. One so badly targeting African Americans that two courts said it was surgically — surgically — tailored to get after minority voters. …

In all these areas where it’s about political power for big special interests, and people who want to fund campaigns, and people who want to get their way through politics without actually showing up, doing it behind DonorsTrust and other groups, doing it through these schemes over and over and over again, you see the same thing. Eighty decisions, Judge Barrett. …

Something is not right around the court. And dark money has a lot to do with it. Special interests have a lot to do with it. DonorsTrust and whoever is hiding behind DonorsTrust has a lot to do with it. And the Bradley Foundation, orchestrating its amici over at the court, has a lot to do with it.

AMY GOODMAN: That’s Democratic Senator Sheldon Whitehouse of Rhode Island speaking at the Supreme Court justice confirmation hearings for Amy Coney Barrett, talking about how dark money has reshaped the nation’s judiciary.

In these last few minutes, we’re still with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who also testified in the last day of the hearings. Kristen, if you can underscore this dark money trail and what it has meant for your work? And then, include in this, as we wrap up for the week — we are in the voting season; it’s not just an Election Day anymore — something like 15% of the electorate has already voted, many new voters, and the obstacles that are being put in their way.

KRISTEN CLARKE: Well, I thought that Senator Whitehouse’s remarks were incredibly important. We need to pull back the veil. And we need to shine a light and have more transparency on how the Federalist Society and donors network and all of these other related organizations operate. They have become a powerful, well-funded force in terms of transforming the courts.

As a civil rights organization, we have become deeply concerned about the grip that they have on the judicial nomination process. We have seen them put forth nominees who are not diverse. They have rolled the clock back on racial and gender diversity in our federal courts. We’ve seen nominees whose records reflect extremism, nominees who are far outside the mainstream. So understanding the funding trail for these organizations is incredibly important. And it’s a reminder about the devastating 2010 Supreme Court decision in Citizens United, which has made transparency when it comes to donations all the more difficult.

To your question, Amy, about where we are right now, we are in the middle of a pandemic that has upended elections across our country. But it has been remarkable to see the secretaries of states in a number of places really be very proactive in recognizing that fact, secretaries of states that have lifted some of the barriers and burdens that voters face when it comes to accessing absentee ballots, when it comes to notary and witness requirements for voters who may be quarantined at their home because of their health. But organizations like mine, Lawyers’ Committee for Civil Rights Under Law, have been working day and night in the courts to address some of those states that have failed to lift the barriers. Some of the bad actors include Texas, Tennessee —

AMY GOODMAN: We have five seconds.

KRISTEN CLARKE: — Texas, Tennessee and others. My hope is that all voters who want to have voice will be able to do so in the days that remain in the 2020 election.

AMY GOODMAN: Kristen Clarke, I want to thank you so much for being with us, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

That does it for our broadcast. Just remember, in these last days leading up to the final Election Day, stay safe, save lives, wear a mask, and vote.

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