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 has justified their effort: the 2010 Supreme Court 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, a 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 full steam ahead, and under Trump at breakneck pace.
The Washington Post revealed earlier this year a sprawling network of organizations that is funded by at least a quarter-billion dollars of largely anonymous money and is 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 in favor of Gorsuch; then came another $17 million for the political campaign to prop up Kavanaugh, perhaps 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 mired 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 and root out conflicts of interest and partisan or corporate bias. No court should be so mired 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. Observers of the Court 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 these 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.
(Adapted from as-prepared remarks for National Press Club Newsmaker event scheduled today.)