Senators and a witness at a Senate hearing Wednesday afternoon called out three left-leaning dark money groups for decrying the existence of conservative dark money groups.
The term “dark money” generally applies to a political organization that doesn’t disclose its donors.
Leaders of the liberal groups People for the American Way, the Center for Media and Democracy, and Take Back the Court told senators that corporate and dark money is corrupting the Supreme Court, but were vague about how.
None of the three liberal nonprofits discloses all donors, The Washington Free Beacon reported, a stance that makes them dark money organizations.
Sen. Sheldon Whitehouse, D-R.I., chairman of the Judiciary Committee’s subcommittee on federal courts, oversight, agency action, and federal rights, called the hearing.
The three witnesses invited to testify by Whitehouse sharpened their knives primarily on the Federalist Society and the Judicial Crisis Network, two conservative organizations that focus on the federal courts.
The hearing at least in part was to promote Whitehouse’s bill, the Amicus Act, which would require the Supreme Court to require more disclosure from any party that files an amicus brief in a case before the high court. The bill is based on the Rhode Island Democrat’s expressed concern that special-interest groups have gained leverage over high court rulings.
Here are seven key highlights of the hearing, titled “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.”
1. ‘Swear Off Dark Money?’
Sen. Mike Lee, R-Utah, asked Lisa Graves, president of the Center for Media and Democracy, if she would reject dark money or disclose all of her group’s donors going forward.
“Will you commit that the Center for Media and Democracy will no longer accept these dark money donations?” Lee asked.
Graves seemed to dodge, referring to how proposed legislation by Democratic lawmakers defines dark money.
“There is a specific definition of dark money,” she said.
Lee asked: “How does that definition encompass the conservative organizations you don’t like and exclude the dark money that you receive?”
Graves replied that disclosure laws for nonprofit groups that file briefs before the Supreme Court or are involved in campaigns for or against judicial confirmations should be equal for all sides.
“The standards are about their conduct in terms of influencing elections, spending money on advertising,” she said, later adding: “It doesn’t reach nonprofit activity around hospitals or other charitable functions. It’s specifically tailored to those entities that are running ads.”
Lee pressed further, asking: “How much of the dark money you received was used to support the filing of amicus briefs in the Supreme Court?”
Graves said she rejected the premise of Lee’s question.
“If you look at the definitions that are in the [proposed] statute of activity that Congress is attempting to regulate, it doesn’t apply at all to the work that I have been doing in investigative journalism and work the Center for Media and Democracy has done,” she said.
Unable to get an answer, Lee said he was perplexed by Graves’ distinction between good dark money and bad dark money.
“Pick a horse and ride it. If you don’t like dark money, that’s one thing,” Lee said. “If you like it, own it where you take it. This middle ground of trying to say it’s holy, it’s righteous if it’s in support of a liberal cause doesn’t sit well with most people.”
2. ‘Special Interest-Controlled Fast Lane’
Whitehouse said the subcommittee’s focus on the Supreme Court was the first in a series of its hearings on dark money.
“Courtrooms ought to be open places where you know who is present, not a place where powerful players can come masked behind front groups, hiding both their own identity and their inner connections,” the Rhode Island Democrat said.
Amicus briefs—or “friend of the court” briefs—are filed by outside parties to help inform the Supreme Court on the law and facts in specific cases.
“The Supreme Court should not be a place that has a special interest-controlled fast lane, bringing certain special interest-chosen cases before the court at high speed without the trappings of a real case or controversy,” Whitehouse said. “The court itself should not tolerate this. But, if it won’t respond, we must.”
Whitehouse previously has supported so-called court packing plans to expand the size of the Supreme Court from its current nine justices.
Supreme Court rules currently require that amicus briefs “indicate whether counsel for a party” involved in the case wrote the brief or “made a monetary contribution” to prepare the brief, according to The Wall Street Journal.
The high court also requires disclosure of the name of “every person other than the amicus, its members or counsel, who made such a monetary contribution.”
Whitehouse’s bill would require those who file amicus briefs to disclose all donors.
In the 1958 case of NAACP v. Alabama, the Supreme Court ruled that requiring donor disclosure could chill First Amendment rights by dissuading Americans who might fear exposure from engaging in political or social activism.
3. ‘Friend to the Republican Party’
Republicans have assaulted democracy and voting rights and the Supreme Court is trying to help them, said Michael Klarman, a Harvard Law School professor and board member for Take Back the Court,
Reciting a long list of cases, Klarman said: “Today’s Supreme Court has shown itself to be no friend to democracy but always a friend to the Republican Party.”
“Dramatic demographic changes together with increased secularization and a growing social liberalism have led Republicans to conclude that their political agenda no longer commands majority support,” Klarman later added.
So, he argued, Republicans have chosen to shrink the electorate through voter ID and other laws:
Republican Supreme Court justices have been largely complicit with this assault on democracy. In 2013, they effectively nullified the preclearance of the 1965 Voting Rights Act, one of the most consequential and noble statutes enacted by our federal government. Republican justices have also upheld strict voter identification laws and purging of the voter rolls on the basis of the state’s interest in reducing voter fraud, which numerous studies have demonstrated is a virtually nonexistent problem.
Klarman complained that ‘Republican justices,’ meaning justices appointed by Republican presidents, unleashed more money into politics. He referred to the 2010 case of Citizens United v. Federal Election Commission.
“Ten years ago, Republican justices ruled that corporations have the same free speech rights as people, an extraordinary departure from precedent, original understanding, and common sense,” he said, later adding:
Rather than defending democracy, the court under Republican control has become another engine of democratic degradation. More generally, today’s Republican justices have aggressively advanced the GOP’s agenda, comprising the most conservative court since before World War II.
4. ‘Bribe the Chief Justice?’
Other witnesses called by the Democrats repeatedly said dark money has corrupted the Supreme Court. So, Sen. John Kennedy, R-La., wanted to understand how.
“Help me get to the bottom line. Are you suggesting that someone is using the corporate money or the dark money to bribe the chief justice?” Kennedy asked.
Ben Jealous, president of People for the American Way, appeared to have difficulty going beyond repeating what he said in opening remarks.
“What I’m suggesting, sir, is that there is a rigged system that is pretty obvious when you look at the Chamber of Commerce,” Jealous said.
Kennedy: “What do you mean by rigged?”
Jealous: “You’ve got dark money spending $18 million to put a pro-corporate justice on the Supreme Court.”
Kennedy drilled for a direct answer.
“How do you know that is influencing the way the chief justice decides cases?” he asked.
Jealous: “Sir, what I described is a rigged system where you have dark money campaigns to get justices onto our Supreme Court.”
Kennedy again pressed: “Are you saying the chief justice is voting the way he’s voting because of this dark money and corporate money?”
Jealous finally responded, “In part, sure.”
Kennedy asked Graves similar questions in response to her earlier comments about the Federalist Society’s supporting the nomination of Justice Brett Kavanaugh.
“Are you suggesting that the Federalist Society bribed somebody to nominate Justice Kavanaugh?” Kennedy asked her.
Graves answered: “The record shows that [President] Donald Trump outsourced the preselection process for judicial nominees to Leonard Leo.”
Leo is co-chairman of the Federalist Society for Law and Public Policy Studies.
After Graves reiterated this point in other follow-up questions, Kennedy again asked her: “Are you suggesting the Federalist Society is using this dark money to bribe anybody?”
Graves replied: “There is an array of ways in which the judicial function can be corrupted, and dark money is a way of corruption.”
Kennedy: “Are they bribing somebody and if so, who is it?”
Graves: “A brown paper bag of cash is not the only way in which money can influence and distort rulings. This issue of how you define bribery is somewhat of a red herring.”
Kennedy asked: “Do you think they are being bribed?”
Graves eventually said: “There is a legal definition of bribery in the United States Code that is a very specific, narrow definition.”
5. Left Dominates Dark Money
The left has far more dark money organizations and has been at it longer, said Scott Walter, president of the Capital Research Center, an investigative think tank that monitors nonprofits.
“Our last study found [the ratio of] left over right funding for public policy C3 groups is 3.7 to 1,” Walter said. “In raw dollars, we are talking about $2.2 billion for conservative groups and $8.1 billion for liberal groups.”
Certain nonprofits that are allowed to engage in public policy but not political endorsements are known as 501(c)(3)—or “C3”—organizations under the Internal Revenue Code.
“So, you and your friends have more groups that have fought these battles much longer and with much more dark money,” he told Whitehouse.
Walter referred to a staff report for Whitehouse that singled out conservative nonprofit groups. He noted that the report cited the Bradley Foundation, which funds groups and amicus briefs opposed by the Senate Democrat:
Why did your report keep in the dark the Ford Foundation, whose funding dwarfs Bradley’s, and its influence on the court began decades earlier? Ford’s influence has been enormous. Ford virtually invented the public interest law movement and helped get a reluctant Treasury Department to allow charitable status for those law firms, even though suing people hadn’t been considered charitable. That tax law coup opened the floodgates for left-wing foundations to fund lawsuits.
Walter further dissected Senate Democrats’ report, which also criticizes the Donors Trust, a conservative, donor-advised fund that steers individuals to conservative or libertarian causes. He said Donors Trust is hardly different from the much larger Tides Foundation on the left.
“Tides was the first ideological donor advice fund, created a quarter-century before Donors Trust,” Walter said.
He noted that although the Democrats’ report cites the conservative Judicial Crisis Network, the liberal People for the American Way initiated public relation campaigns in judicial confirmation fights during President Ronald Reagan’s failed 1987 nomination of Robert Bork to the Supreme Court.
“Incidentally, People for the American Way was originally launched out of the Tides Foundation dark money empire, which has long funded it,” Walter said. “Tides money also goes to the Center for Media and Democracy.”
The Whitehouse staff report also criticizes a network of conservative groups that raised $250 million over five years.
“Your report ignores the network run by the little-known Arabella Advisors, even though Arabella runs Demand Justice and Fix the Court—the groups that are at the tip of the spear for your friends’ network,” Walter said, addressing Whitehouse.
“Your report criticizes a conservative network that raised $250 million over five years. The Arabella Advisors network, over the same five years, raised $1.5 billion.”
6. ‘Contorted’ Religious Freedom Argument
Jealous complained that the Supreme Court has twisted the constitutional meaning of religious freedom.
“People for the American Way was founded to defend the First Amendment and its protections for religious freedom,” Jealous said. “We have allowed diverse communities of faith to flourish in this country.”
The liberal group’s president continued:
George Washington expressed the spirit of our Founders in a letter to a Jewish congregation in Newport, Rhode Island. He assured them they shared the same rights as other people in this country, adding the U.S. government would give bigotry no sanction and persecution no assistance.
The Roberts court has contorted these values. It has converted religious freedom from a shield to protect worshipers into a sword to attack workers.
The 5-4 ruling in Hobby Lobby allowed corporations to deny legally required health benefits to workers based on a company owner’s religious beliefs. Letting companies use religious beliefs to evade laws designed to protect workers was, as Justice [Ruth Bader] Ginsburg said, both unnecessary to protect religious freedom and like entering a minefield.
7. ‘Status Quo Court’
An honest assessment of the Roberts court would not find it is being influenced either by ideological or corporate interests, testified Jonathan Adler, a professor at Case Western Reserve University School of Law.
“By standard measures, the Roberts court has been less activist than was the Warren court, the Burger court, or the Rehnquist court,” Adler told the senators. “Specifically, the Roberts court both overturns prior Supreme Court precedents and holds federal laws to be unconstitutional at a significantly lower rate than did its predecessors. It’s not particularly close.”
Adler noted cases where the Roberts court ruled in favor of same-sex marriage, the rights of defendants in criminal trials, and environmental regulation.
“The Roberts court is actually more of a status quo court than an activist court. It has been more status quo-oriented and more deferential to Congress than any court in the past 60 years,” Adler said.
It’s not fair to presume corruption because a decision doesn’t come out in someone’s favor, he said.
“The decisions of the Supreme Court under Chief Justice [John] Roberts are best explained, understood, and predicted as a consequence of the respective justices’ jurisprudential and doctrinal commitment and not as a consequence of undue favoritism for or undue influence by a particular interest group, economic or otherwise,” Adler said.
The better way to limit the importance of the Supreme Court is for Congress to be more involved in policy-making, he said, and thus lower the stakes of the high court.
“Ideological and economic interests to influence the federal courts are an inevitable consequence of turning over so many political and economic questions to the court,” Adler said. “The more that is at stake in the federal judiciary, the more various interests and factions will seek to ensure their perspectives prevail.”
The law professor later added:
If judicial decisions instead of votes in Congress are going to resolve the key issues of the day, then that is where political and economic interests will focus their resources. If we want to lower that incentive, we need to lower the stakes. The more questions Congress can resolve itself, the less pressure there will be on the courts to resolve those same questions. The less Congress leaves to the courts, the less people will care about who is nominated or confirming individual justices.
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