It is good to see you all. Thank you for having me. Thank you to Tiffany and Tiernan, for your wonderful introductions. And thank you to the League of Conservation Voters and End Citizens United for being such amazing allies. And for the amazing work you do together. I emphasize “together” because our failure in Congress to address climate change is directly connected to the secret empire of dark money that Citizens United launched.
Climate denial and dark money are two sides of the same coin.
I know this because when I got to the Senate in 2007 and for several years after there was bipartisan progress on climate change. There were bipartisan hearings, discussing bipartisan policies. There were bipartisan bills; by my count, five in the senate alone. John McCain campaigned for president, as a Republican, on a strong climate platform.
So, as 2010 dawned, there was every reason to think a bipartisan climate bill could pass. Speaker Pelosi, wonderful Nancy Pelosi, had just passed cap-and-trade, and we saw constant, bipartisan climate action in the Senate.
Suddenly, at once, it all fell apart.
Why? Why, because on January 21, 2010, the Supreme Court’s five recent Republican appointees handed down their decision in Citizens United, and opened the spigots for the fossil fuel industry to flood unlimited money into our politics. With those spigots opened, the industry instantly figured out how to spend that money anonymously.
With Citizens United, we entered the age of unlimited money, and we also entered the age of dark money.
The Citizens United decision was a disgrace, there is a whole separate speech on how many ways it was a disgrace. The Republican appointees stood their decision on unsupported and unsupportable findings of fact, findings with no basis in any factual record. For starters, it is wrong for appellate judges to make findings of fact at all. Let alone, when appellate judges make findings of fact that are untrue.
One such finding was that that the new unlimited spending would be transparent; that there would be “effective disclosure” of who was behind the new political spending; that citizens would have “the information needed to hold corporations and elected officials accountable.” None of that was true.
The fossil fuel industry knew all the mechanisms to hide their identity. And their lobbying machinery made damn sure Congress imposed no disclosure requirements. Mitch McConnell, once a champion of disclosure, became its chief opponent.
Armed with new unlimited dark money, industries like Big Oil, and the fossil fuel billionaire Koch brothers, attacked from behind front groups, and donor-advised trusts, and “social welfare organizations.” In that federal cycle, outside spending groups, led by newly minted dark money groups, more than tripled their spending from the cycle before. By 2016, dark money groups would spend over $1.4 billion in American elections.
Today, in major elections around the country, outside groups often outspend actual candidates. OpenSecrets reports that in 2018, outside groups spent more than the candidates’ campaigns in 28 different federal races. In Indiana last cycle, for instance, dark-money and outside groups outspent the U.S. Senate candidates by nearly $25 million.
Bad enough that those five justices, against the will and judgment of Congress, let unlimited money into our political system. That helps no one but big interests with both unlimited money and the motivation to use it.
It’s worse still when the unlimited money can be spent anonymously. Then ordinary citizens are denied the knowledge even of who’s who on the political stage. Politics becomes a game of masquerade; and with no real entity accountable for the toxic political behavior of the masked entities, political behavior gets a lot more toxic.
Worst of all, worst of all, is an obvious political fact, an obvious political fact, completely missed by the five justices who created this mess. When you empower big special interests to use a political weapon, you also empower them to threaten to use it. With unlimited dark money spending come threats of unlimited dark money spending – silent, private threats. Starting in 2010, the fossil fuel industry could simply – and actually did – warn Republicans, “Anybody who crosses us on climate is finished.” When the threat worked, their anonymity was complete, and they didn’t even have to spend the money.
If a Republican didn’t believe the threat, the industry could point to Bob Inglis, a deeply conservative Republican who, driven by his faith and conservative principles, would not be intimidated from recognizing the imperative of serious climate action. So they took him out. As Bob will tell you, they buried him in political spending and ended his tenure in Congress. His name even became a verb in Washington: to be Inglissed.
With its Citizens United weaponry, ruthlessly, through dark-money attacks and threats, the fossil fuel industry snuffed out Senate bipartisanship on climate change. Weaponization of that new unlimited dark-money power by the fossil fuel industry cost us a decade of climate progress.
How do we make up for that lost decade? How do we win?
Now let’s start with good news: Americans now rate climate change a top priority. For the first time in polling, Gallup says a majority of Americans think climate change will pose a serious threat in their lifetimes; believe it is the result of human activity; and think news reports about it are either accurate or underestimate the problem.
Even Republicans, particularly if they’re young, object to their party’s denial and obstruction. As conservative columnist George Will recently put it, “young people have made up their mind about the Republican Party, that it’s kind of the dumb party.” On climate change, that’s a well-earned title, even a little on the polite side. Some Republicans feel that shift and want to stop being the dumb party. Not enough yet, but a few.
Fossil fuel companies feel the heat, too. Shell recently left a trade group after complaints of its climate obstruction. Exxon has a shareholder revolt over its economic exposure to climate risks, and Exxon is getting a well-deserved beating over its decades of plainly false climate denial. Several oil majors even claim to support a fee on carbon emissions, similar to the carbon fee bill Senator Schatz and I have introduced in the last three Congresses.
But is this real?
Or is it the last redoubt of climate denial to pretend to support a price on carbon, while continuing to support the vast armada of front groups that still traffic in climate denial and still obstruct climate progress? We will know the answer to that question when we see the industry actually support an actual bill, and when we see actual Republicans come forward to support it without fear of industry reprisal. So far in the Senate, the number of Republicans who trust them on this is zero.
So, scenario one for passing climate legislation is to keep the pressure hard on the fossil fuel industry. Call them out. Divest. Make them and their front groups disclose the flow of money. Support the litigants who are pursuing them from many sides.
Remember, justice often comes in courtrooms. Fossil fuel may buy Congress and control the administration, but tampering with a jury is a crime. And, courts require truthful testimony and disclosure of real documents. Remember Big Tobacco, which lost its long war of denial when lawyers got into its files, and executives faced depositions under oath.
My advice on this point is Lincoln’s to Grant: “hold on with a bulldog grip, and chew and choke as much as possible.”
Even if the fossil fuel industry never sincerely supports a price on carbon, there is another victory scenario. In this scenario, public pressure builds on corporate America. The good guys on climate have too long tolerated fossil fuel obstruction from their own powerful trade groups like the U.S. Chamber of Commerce and the National Association of Manufacturers. Companies like Pepsi and Coca Cola, and many others – companies with excellent internal climate policies – support these fossil fuel front groups, giving the “good guy” companies a political stance in Congress actually opposed to their own stated climate policies.
That can’t last corporate America awakening to this scam, and demanding real action, can free Senate Republicans to once again back bipartisan climate legislation. Wall Street, for one, is justifiably concerned about a carbon asset bubble causing a general economic crash.
A first step for these good guy corporations will be to demand that they demand transparency from trade groups about their funding. Let’s say if you’re a company on the board of a trade association, and you don’t know that the trade association is being paid by the fossil fuel industry to do climate obstruction, that’s on you. Corporate America must demand a reckoning of all these groups — the Chamber, NAM, NFIB, the Farm Bureau (even the Koch Brothers fake trade association, Americans for Prosperity), all the big denier groups — or they will face a reckoning of their own. And it’s on us to make it unsafe for companies to deputize their politics to our opponents, or sit this one out on the sidelines. It’s too important.
There’s a third victory scenario. The third victory scenario is to blow up the status quo and turn dark money against them. Dark money is not protected by any legal privilege, it’s just not required to be disclosed. That means it’s amenable to subpoena. “Sunlight is said to be the best of disinfectants,” said Justice Louis Brandeis; so let’s send some subpoena sunbeams into the smelliest dark-money corners. House committees can do that. When the public sees the dark-money mischief the fossil fuel polluters have been up to, the day of reckoning will be sooner at hand.
So there are victory scenarios, Scenario A, Scenario B, and Scenario C. And my personal favorite, Scenario D: All of the above.
Let me wrap up by calling for persistent reforms to eradicate dark money from our politics. It’s being used primarily now for climate denial, but we need to banish the dark money tool entirely from the corporate influence toolbox. Transparency in our elections and governance, and strong, well-policed safeguards against corruption, are what will ready our democracy for other major threats to come.
Speaker Pelosi’s HR-1 contains the right stuff, like my DISCLOSE Act. I have been the Senate lead on this bill since 2012. It requires disclosure of donations of $10,000 or more, with robust transfer provisions to peer through the layers of super PACs, front groups, or shell corporations through to the real donor. It contains the “stand by your ad” provision to identify the funders behind political ads.
I have seen it come a hair’s breadth from passing on the Senate floor. We need to make it a priority — and some good subpoena sunbeams will help illuminate for America the priority of ending this dirty trade in dark money.
Finally, and I wish I didn’t have to say this as a lawyer who spent his life in courts and has argued in front of the Supreme Court, we have to police the infiltration of dark money into our courts. Right now, dark money forces, through the Federalist Society and secretive judicial kingmaker Leonard Leo, are selecting our top federal judges. The Washington Post reported that they operate a $250 million network of dark-money donors and front groups. The purpose is to pack courts with corporate-friendly judges.
The bad news is that it’s working.
Under Chief Justice Roberts’s tenure, through the end of October Term 2018, Republican appointees had delivered partisan 5-4 rulings for corporate and big Republican donor interests not three or four times, not even a dozen or two times, but 73 times. Seventy-three victories for big Republican interests; one of which was the unprecedented 5-4 partisan decision that suspended the Clean Power Plan.
Dark money doesn’t just select federal judges; it campaigns for their confirmation through the dark-money-funded Judicial Crisis Network. A single donor gave $17 million dollars to attack Judge Garland and support Judge Gorsuch. A single donor, perhaps the same donor, gave another $17 million to support Judge Kavanaugh. Shouldn’t we know, shouldn’t America know, who that donor is, and what business that donor might have before the Supreme Court?
And that’s not all. Dark money then instructs judges once they’re on the bench through dark-money organizations that bombards the Court with amicus briefs. The Court requires of these amici no meaningful disclosure.
So it’s on us. We must send sunbeams into the Supreme Court and throughout the captured judicial selection process. What if, what if, the same network of dark-money interests is selecting our judges, and then campaigning for them, and then instructing them on the bench, and then reaping the rewards in dozens of partisan 5-4 decisions? It is at once too horrible to contemplate, and the likeliest explanation.
Your work, your organizations’ work, End Citizens United and League of Conservation Voters, on the twin evils of a campaign finance system broken by Citizens United and Congress’s secretly-funded obstruction of climate progress could not be more important. We are in a battle for our country’s soul against “malefactors of great wealth,” who have been allowed to hide the wicked workings of that wealth behind masks. The fossil fuel industry’s dark money has polluted our politics, as badly as its carbon emissions have polluted our atmosphere and oceans. The fossil fuel industry uses its billions to prevent climate action, and — in a vicious cycle — to protect the dark money weaponry that allows to prevent climate action. It is indeed evil.
But together, we are resolved and determined to restore our democracy and vanquish those dark forces, and together I believe we will. So hold on, with a bulldog grip, and chew and choke until victory.
Thank you.
