Mr. WHITEHOUSE. Mr. President, I am here once again to shed a little light on the dark money scheme to capture and control our Supreme Court.
As folks may recall, my first two speeches covered the early foundation of this scheme–a prominent conservative lawyer Lewis Powell’s detailed strategy memo for the corporate U.S. Chamber of Commerce and then Justice Lewis Powell’s work on the Court to assure his corporate power strategy’s success.
From there, I turned to what historian Richard Hofstetter called the paranoid style in American politics and how extreme anti-government megadonors like the Kochs harness that rightwing fringe and how, at the same time, they had at their disposal the polished mercenaries of corporate administrative agency warfare.
Then I discussed the scheme’s two big recent dark money wins at the Supreme Court–the AFPF dark money case and the Brnovich voter suppression case.
The nutshell overview of all of this is that it is a short jump for big donors from regulatory capture, which is a well-understood and broadly observed phenomenon, to applying known techniques of regulatory capture to capture a court.
As the big donors had this realization and made this jump, one of their most important players in applying capture techniques to the judiciary has been the Federalist Society.
I will start with some very straightforward observations. Every member of the Court’s six-Justice Republican majority is a current or former member of the Federalist Society.
Justices regularly headline Federalist Society fundraisers, like the gala Brett Kavanaugh chose for his first major public speaking engagement after his disastrous confirmation, and they boast of their association with the group. The Federalist Society is a dark money organization. It receives millions in anonymous donations.
The Federalist Society carefully vetted and promoted each member of the current Court majority. Each member rose to the top of the group’s donor-approved slates of nominees. Each was backed by the Federalist Society’s extended network of satellite groups.
For the dark money forces behind the capture of the Court, the Federalist Society became their nomination’s gatekeeper.
The Federalist Society has three component efforts. The first is basically a law school debate club. At more or less every law school in the country, they organize seminars and invite academics, judges, attorneys to speak. It is pretty standard law school stuff.
The second is a fairly run-of-the-mill Washington think tank. They issue newsletters, host podcasts, convene events with conservative legal luminaries. This think tank’s mission is to “reorder priorities within the legal system” and to create a network of members that “extends to all levels of the legal community.”
Then there is the third Federalist Society operation. This is the gatekeeper. It doesn’t really care about fostering young legal minds. It doesn’t care about galas or podcasts either. It cares about one thing: the allegiance of Republican-appointed Justices to rightwing donors’ interests. And the dark money sluice gates into the Federalist Society provide the perfect means of influence. Money talks. Dark money whispers.
The Federalist Society gatekeeper role began with the hiring of a Cornell Law graduate named Leonard Leo, fresh from a clerkship in 1991. Leo’s first task was building the lawyers division to serve as a pipeline for rightwing lawyers to rise through the Federalist Society ranks toward the Federal courts.
Observers say the Federalist Society didn’t hire Leo for his skill as an attorney. What they saw in him was a savvy networker and fundraiser Johns Hopkins professor Steven Teles, who has written extensively on Leo and the Federalist Society, says the idea was to build what he called “a network . . . with Leonard Leo at the center . . . [to] give conservatives a chance to meet one another and check one another out.”
Under Leo’s new system, “the one thing all the lawyers [would] have in common is that they all know Leonard, and he knows all of them.”
Big rightwing donors recognized the opportunity that Leo’s Federalist Society operation presented: a trusted broker to sift through eager legal talent and pluck out adherents to donor-friendly, rightwing legal doctrines and then push the most promising adherents toward judgeships, where they could advance the scheme’s ultimate goal of courts that will reliably rule in the donors’ favor.
As the New Yorker’s Jeffrey Toobin has written, Leo quickly attracted the preeminent scheme funders, including the foundations of rightwing megadonors John Olin, Lynde and Harry Bradley, Richard Scaife, and, of course, the perennially mischievous and malign Koch brothers.
The scheme also raked in anonymous funding through Donors Trust–what has been called the dark money ATM of the right.
As another observer of the conservative legal movement Professor Amanda Hollis-Brusky said, “The funders all got the idea right away– that you can win elections, you can have mass mobilizations, but unless you can change . . . the courts, there are limits to what you can do.” The second Bush administration, the Federalist Society quietly became the big donors’ nominations turnstile.
Bush and his team welcomed Leo’s help. It made things easy. Need someone to pay for public relations cavalry to rescue a struggling circuit court nominee? Leo’s donors made it happen.
According to a 2003 email from a White House staffer to the then- Presidential Staff Secretary, a young guy by the name of Brett Kavanaugh, Leo coordinated “all outside coalition activity regarding judicial nominations.”
In another email uncovered by the Washington Post, Bush aides referred to Leo explicitly as their judicial nominations cash machine.
“Leonard Leo will know,” they said, “where to find money to hold a presser for a failing nominee.” That is from one Bush aide to another.
They go on: “We probably don’t want the fed soc”–Federalist Society–“paying for it, but he might know some generous donor.”
Leo’s official fed soc bio, still online today, boasts that he “organized the outside coalition efforts in support of the Roberts and Alito U.S. Supreme Court confirmations.” The goal, of course, was to change the Court. The Court changed.
Under Chief Justice Roberts, the Court’s Republican-appointed majority served up scores of partisan 5-to-4 decisions, delivering partisan win after partisan win to identifiable Republican donor interests.
Even before the Republican majority expanded to 6, that run of wins reached 80–80 partisan 5-to-4 decisions–a judicial rout favoring very happy rightwing donors.
When Donald Trump assumed office, the Federalist Society gatekeeper role became even more obvious and even more toxic.
You may recall that dark money emperor Charles Koch made waves when he told his rightwing network he could support neither Hillary Clinton nor Donald Trump in 2016.
But the house of Koch and the house of Trump soon reached an accommodation. The house of Koch decided on a grand Trump gesture for their scheme donors–let their operative, Leonard Leo, handpick a list of Supreme Court nominees for Trump to announce early in the general campaign. For the price of known, scheme-approved Supreme Court prospects, peace might be acquired between house of Koch and house of Trump. Trump announced the list.
For what it is worth, I think the rest of the accommodation was for house of Trump to turn over all energy and environmental positions in government to climate change deniers approved by house of Koch, and at the end of the day, it was probably a lot of the same dark money behind both of those accommodations.
Anyway, rewind to 2016 and recall how large the Supreme Court loomed over that Presidential campaign.
Justice Scalia died suddenly during a hunting trip. Mitch McConnell broke with all Senate norms and denied President Obama any hearing or vote for President Obama’s pick to replace Scalia, Judge Merrick Garland.
This vacancy would decide the partisan balance of the Court, which meant the 2016 election would determine whether the 5-to-4 rightwing majority that had delivered so abundantly for the donors would end or be renewed for years or even generations.
Remember Lewis Powell’s memo to the Chamber, “The judiciary may be the most important instrument for social, economic, and political change” in all of government. Well, nothing could focus the scheme’s donors on the stakes of that election more clearly than that vacancy.
With Scalia’s sudden death, the scheme was at risk. So scheme donors’ dark money flowed in ever-larger amounts to the Federalist Society, to Leonard Leo, and to Donald Trump.
Ambitious judges noticed. A court of appeals judge described to me the conduct of some of its colleagues as auditioning–auditioning. They weren’t just deciding cases for the parties before them, they had another audience beyond the courtroom. You don’t audition without someone to audition to. These judges knew they were being assessed, and they auditioned. And no one auditioned harder than Brett Kavanaugh. He filled his court of appeals decisions with signaling, and even set the record for speeches to the Federalist Society. I think it was over 50. He knew who he was auditioning for.
When Trump took the White House, the Federalist Society assumed control of judicial nominations, at least the important ones. Trump said so himself. He wasn’t even subtle about it. House of Trump had peace to keep with House of Koch. This was no time for subtlety. Trump’s new White House Counsel, Don McGahn, even joked about this role, of course, at a 2017 Federalist Society event. He said:
Our opponents of judicial nominees frequently claim the President has outsourced his selection of judges. That is completely false. I have been a Member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.
Leo became the gatekeeper in chief, actually taking leaves of absence from the Federalist Society to advise Trump directly on Supreme Court nominations.
Now, there are unanswered questions about whether this was even legal, but the point was clear. Virtually all major Trump nominees would be scheme-chosen, donor-approved FedSoc members. And, indeed, 86 percent of Trump’s Supreme Court and appellate court nominees were or are members.
Leo and the Federalist Society’s control ran deep. In Leo, the donors controlled an agent to orchestrate every aspect of Supreme Court judicial battles, and they provisioned him with dark money beyond imagining, and with a devious structure of front groups to hide behind while effectuating their scheme.
We are still learning about the scope of Leo’s covert funding and influence, but a 2019 Washington Post expose painted a remarkable picture: a vast network of Leo-affiliated front groups; shell entities with no employees and vague connections to Leo cutouts; shared post office boxes; common contractors and officers across nominally separate entities, even some sharing Presidents; dark money funders, anonymous advertising, and enormous pay packages for operatives.
It has the earmarks of a covert operation of the sort that is run by hostile countries in the intelligence arena. But this covert operation was run in America against America by Americans. By the Post’s reckoning, $250 million in dark money flowed through this apparatus. Testimony before the Senate Judiciary Committee’s Courts Subcommittee, which I chair, has since updated that number to $400 million. Groups in this apparatus have gorged on dark money, their coffers swelling by orders of magnitude as Leo’s influence grew.
For example, in 2002, DonorsTrust, the scheme’s dark money ATM, had contributed $5,000 to the Federalist Society. Scroll forward to the most recent year on record: It contributed $7 million.
Before 2010, the Federalist Society received an occasional anonymous gift of $1,000 or more, at most one per year. Over the last decade, it averaged more than a dozen each and every year. Donors were not kidding around, not with that kind of money–$400 million. The scheme to capture the Court was deadly serious.
Eleven days after Donald Trump was sworn into office, he announced Neil Gorsuch–a name from the Federalist Society’s infamous list–to fill Scalia’s former seat. Then Brett Kavanaugh was hand-walked by Leonard Leo to the top of the list, after all his ardent auditioning from his court of appeals seat. And 7 days before Donald Trump lost the 2020 election, Amy Coney Barrett–a Federalist Society member and regular feature speaker at Federalist Society events–filled Ruth Bader Ginsburg’s seat. The scheme’s Federalist Society gatekeeper operation had delivered to its big donors a complete overhaul of the Court in less than 4 years.
One man, his secretive array of front groups, and hundreds of millions of scheme donors’ money, delivered a donor-approved six- Justice majority to the Court.
The Federalist Society was the turnstile that controlled the appointments, and dark money was the inducement that controlled the turnstile.
To be continued.
