During remarks on the Senate floor, Sen. Sheldon Whitehouse (D-RI) spoke about conservative think tanks that influence the Supreme Court.
Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:
https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript
Stay Connected
Forbes on Facebook: http://fb.com/forbes
Forbes Video on Twitter: http://www.twitter.com/forbes
Forbes Video on Instagram: http://instagram.com/forbes
More From Forbes: http://forbes.com
Fuel your success with Forbes. Gain unlimited access to premium journalism, including breaking news, groundbreaking in-depth reported stories, daily digests and more. Plus, members get a front-row seat at members-only events with leading thinkers and doers, access to premium video that can help you get ahead, an ad-light experience, early access to select products including NFT drops and more:
https://account.forbes.com/membership/?utm_source=youtube&utm_medium=display&utm_campaign=growth_non-sub_paid_subscribe_ytdescript
Stay Connected
Forbes on Facebook: http://fb.com/forbes
Forbes Video on Twitter: http://www.twitter.com/forbes
Forbes Video on Instagram: http://instagram.com/forbes
More From Forbes: http://forbes.com
Category
🗞
NewsTranscript
00:00now for the 33rd time to keep shining a little light on the right-wing
00:10billionaires covert scheme to capture and control our Supreme Court. As a
00:20result of that scheme the court's right wing just took a wrecking ball to the
00:28government's ability to protect Americans from big polluters and
00:32corporate cheaters. This year's billionaire bonanza came through four
00:40decisions that gutted administrative agencies ability to do their jobs.
00:48Perfect payback to the polluter billionaires who helped foot the bill to
00:54get these justices onto the court in the first place. The first decision is
01:02Ohio versus EPA where the Supreme Court undermined the Environmental Protection
01:08Administration's ability to enforce the good neighbor provision of the Clean Air
01:13Act. The provision that defends the air quality of downwind states like mine
01:20Rhode Island from power plants and industrial facilities in upwind states
01:26where sometimes they build the smokestacks extra high so that the
01:31pollution doesn't hit the polluting state but it floats over and comes down
01:35and hits us in Rhode Island. Without even full briefing on the merits
01:41industry litigants succeeded in getting the court to stall proposed clean air
01:48regulations and place a thumb on the scales in favor of polluters. At the
01:55hands of the Federalist Society justices the right of polluters to pollute beat
02:01the right of Rhode Islanders to breathe clean air. Then came SEC versus Jarkissi
02:08the right wing where the right wing justices undercut the ability of federal
02:14agencies to hold fraudsters accountable through administrative enforcement
02:20proceedings. The court held that civil penalties for securities fraud required
02:26jury trial under the Seventh Amendment undermining administrative adjudication
02:32in all sorts of civil enforcement proceedings across the federal
02:36government protecting consumers from predatory financial institutions, workers
02:41from unsafe conditions, and the environment against polluters. I am angry
02:49that the court picked this case to express concern about the right to a
02:54civil jury while it has been busily eroding that same civil jury right when
03:00doing so favored big corporations over regular people. If you're a fraudster on
03:07the losing end of a regulatory violation they're all about the Seventh Amendment.
03:13If you're a consumer or employee injured by a big business off you go to private
03:21secret mandatory arbitration. At the hands of the Federalist Society justices
03:28the right of fraudsters to commit fraud defeated the right of people to be
03:34protected from fraud. In Loper Bright Enterprises v. Raimondo the court
03:40overruled 40 years of precedent granting what is called Chevron deference to
03:47federal agencies when they're implementing laws that protect health
03:51safety and the environment. Chevron recognized that courts should defer to
03:59an executive agency's reasonable interpretation of a statute it's charged
04:05with administering. Just reading that sentence tells you how eminently
04:11reasonable the rule was. Plus Congress can't be expected to make fine-grained
04:17determinations in technical areas that are best left to experts with decades of
04:23training and experience. In Loper the right-wing justices removed that
04:29deference to expertise. The result look at this Washington Post headline
04:37corporate lobbyists eye new lawsuits after Supreme Court limits federal power.
04:46More ways for polluters to stall regulations with delays that can save
04:54polluters billions. Just to read this text mere hours after the Supreme Court
05:01sharply curbed the power of federal agencies conservatives and corporate
05:05lobbyists began plotting how to harness the favorable ruling in a redoubled
05:10quest to whittle down climate finance health labor and technology regulations
05:15in Washington. These cases are a power grab by a captured court transferring
05:25regulatory authority from an elected Congress and an elected executive to an
05:31unaccountable judiciary ill-suited to make such technical determinations.
05:37Almost laughably as they did this Justice Gorsuch had to amend his opinion
05:44in that Ohio versus EPA case because he confused nitrous oxide laughing gas with
05:53nitrogen oxides that were the subject of that case. So much for judges knowing
06:00technical stuff better than the experts. The right of Federalist Society judges
06:07to make up fake science for billionaires triumphed over the right of regular
06:12people to have real experts defend them. Finally in corner post the Federal
06:19Reserve the court held that the six-year statute of limitations to challenge a
06:23federal agency's action begins when a person or entity challenging a rule is
06:28allegedly injured maybe decades after the rule became law. Every regulation can
06:36now be litigated for eternity. Agencies will be perpetually vulnerable to
06:43litigation on every rulemaking stalled by deep-pocketed litigants armed with
06:50exotic legal theories and the backing of this captured court. As Justice Jackson
06:58wrote in her dissent in corner post the tsunami of lawsuits against agencies has
07:02the potential to devastate the functioning of the federal government.
07:05Even more to the present point that result simply cannot be what Congress
07:11intended when it enacted legislation that stood up and funded federal agencies
07:17and vested them with authority to set the ground rules for the individuals and
07:22entities that participate in our economy and our society. At the hands of the
07:28Federalist Society justices the power of special interest to tangle up regulatory
07:34agencies has defeated the right of taxpayers to protection from those
07:39special interests. Here's how I explained that protection in my amicus brief in
07:44the Loper case. Over the last century our society has advanced remarkably as
07:51industries and corporations grew their motive to maximize profits caused social
07:56harms and threatened consumer safety. Regulation responded. Heavy equipment and
08:02dangerous chemicals came to mines, factories, and construction sites.
08:06Regulators implemented workplace safety standards. Meatpacking and mass
08:12production ballooned. Regulators implemented sanitation requirements in
08:16production facilities. Americans widely adopted automobiles. Regulators required
08:22seatbelts and airbags. The modern economy necessitated a modernization of the US
08:29regulatory framework. Congress responded to the complexities of the modern world
08:33by ensuring that administrative agencies have the capacity, flexibility, and
08:39expertise to respond to new developments. Part of that project was delegating
08:45clear and broad authority to executive agencies and allowing those agencies to
08:49adopt and adapt regulations to respond to new hazards. As a result daily life in
08:56the United States is safer. Workplace illnesses, injuries, and deaths have
09:01declined. Children on average have lower levels of lead in their blood. Foodborne
09:06illnesses that used to kill thousands of people per year have been practically
09:09wiped out. Highways are no longer carnage and air travel is even safer than
09:16highway travel. So why tear down what has worked so well for generations? Well the
09:24billionaire funded think tanks say it's to strip power from so-called
09:28unaccountable bureaucrats. They love to talk about unaccountable bureaucrats.
09:32Except that federal agencies are not unaccountable. Indeed they're way more
09:38accountable than judges. Again from my Loper brief, agency experts report to
09:47politically appointed executive agency heads nominated by the president and
09:53confirmed by the Senate. Accountable. These agency heads serve at the pleasure
10:00of the president who is accountable to the people. If the public is unhappy with
10:05how agencies are implementing Congress's policies, voters can make that known at
10:10the ballot box. Congress oversees agency actions through legislative committees
10:17dedicated to agency oversight and regularly conducts oversight hearings
10:21where heads of agencies are called to account. Congress retains the power to
10:26enact legislation to limit or reverse agency rulemakings if it disagrees with
10:31the agency's actions and in some cases on an expedited calendar. Furthermore
10:38Congress holds the power of the purse. Every appropriations bill presents an
10:42opportunity to expand, correct, or contract agency authorities. If the
10:48public is unhappy with how Congress is holding agencies accountable, voters can
10:53make that known at the ballot box. Finally agencies are accountable to the
10:58judiciary which has the authority to review an agency's statutory
11:02interpretations and actions to ensure the agency's decisions are reasonable
11:06and follow appropriate processes and procedures. The myth of unaccountable
11:13administrative agencies is a fake. The real objection is the career agency
11:19employees are expert and can go toe-to-toe with industry trickery and
11:25worse for polluters they can't put the fix in politically with a big campaign
11:32contribution or a couple of million dollars to a super PAC because agencies
11:37are forbidden to take political considerations into account and they are
11:41forbidden to self-deal. All of this wreckage of the long-standing
11:49protections of our administrative process was done by polluters who fund
11:56the Republican Party and paid to stack the court that dark money built and this
12:03is the polluters payday. A whole smelly ecosystem of secretly funded corporate
12:11front groups is involved. Anti-regulation doctrines get cooked up
12:16in right-wing hothouses funded by polluters. The doctrines get amplified by
12:22right-wing front groups funded by polluters. They then get fed to the court
12:27by little flotillas of right-wing amici funded by polluters. Secret dark money
12:34funding from billionaire special interests underpins the entire operation.
12:39Much of this is the coke industry's political influence operation. A powerful
12:46right-wing dark money political polluter network. Look at that Loper case. The
12:55lawyers who represented the petitioners in that case worked for free supposedly
13:03for a public interest law firm supposedly called cause of action.
13:11Interesting law firm. It discloses no donors and it does not report any
13:18employees. In fact the New York Times discovered the group's lawyers who
13:27supposedly worked for cause of action actually work for Americans for
13:33Prosperity. The main battleship of the coke political front group armada. An
13:41operation that is so cozy with the far-right justices it helped put on the
13:47Supreme Court that Justice Thomas has repeatedly flown out to join fundraisers
13:53for coke political operations including Americans for Prosperity. Here's the
14:02flotilla of front groups that appeared in Loper as amici curiae. The Buckeye
14:11Institute, Cato Institute, Competitive Enterprise Institute, Landmark Legal
14:15Foundation, Mountain States Legal Foundation, National Right to Work Legal
14:19Defense Foundation, New Civil Liberties Alliance, Pacific Legal Foundation and of
14:23course our dear friends the United States Chamber of Commerce. A proper
14:27murderers row of polluter mischief. And who are they funded by? Oh let's look.
14:35Donors Trust, the Donors Capital Fund, the Coke Family Foundations, the Bradley
14:40Foundations and Exxon Mobil itself. Donors Trust and Donors Capital Fund are
14:49so-called donor advised funds. They don't actually do anything. They don't
14:53actually produce anything, build anything. What they do is provide right-wing
15:00identity laundering services. Donors Trust has been described as the dark
15:06money ATM of the right and with Donors Capital has laundered over a third of a
15:14trillion dollars into climate denial operations. If you're Exxon Mobil or a
15:21billionaire polluter and you want to support climate denial but you don't
15:26want your name on the phony front group that is doing the climate denial work,
15:30you send your check to Donors Trust and they take it and they send the money
15:35where you tell them to the other group only it's disclosed by them as coming
15:40from Donors Trust. It is an identity laundering operation for dark money
15:46political influence. Some amici also were funded by front groups affiliated with
15:54Leonard Leo who we know as the billionaires operative in this court
15:58capture operation. The Loper amicus Advancing American Freedom received 1.5
16:06million dollars from Leonard Leo's Concord Fund between 2020 and 2021. 1.5
16:16million dollars. Leo's Concord Fund which is this operation on this graphic
16:24operates also under the fictitious name of the Judicial Crisis Network. When I
16:31say fictitious name I mean under Virginia corporate law Concord Fund has
16:37filed Judicial Crisis Network as a fictitious name, term of art in the law
16:42under which it is allowed to operate without disclosing that it's
16:48actually the Concord Fund. Through the Judicial Crisis Network, Leo and his
16:56Confederates spent millions of dollars on the court capture operation. TV ads
17:05barrages of TV ads, huge checks in for 15 million dollars and 17 million dollars
17:12from undisclosed donors to pump the right-wing justices that they had chosen
17:19through confirmation. So this same group that helped push the justices from the
17:29Federalist Society lists under the Supreme Court then files a brief
17:35through the Advancing American Freedom. 1.5 million dollars from Concord into
17:45Advancing American Freedom. This whole thing is a billionaire backed shell game
17:52in which the court willingly participates and the connection between
18:00court capture and regulation destruction that's not even in dispute. The court
18:06capture operation and the anti-regulatory operation were admitted
18:11by Trump's White House counsel Don McGahn to be, and I'm quoting him here,
18:18two sides of the same coin. You stack the court to tear down the regulations so
18:26your polluters are happy and they fund your effort to stack the court and
18:31support Republican power. And about this slate of recent decisions that I've just
18:38discussed, he proudly told the New York Times, and I'm quoting him again,
18:42none of this was an accident. None of this was an accident. Indeed it was
18:49bought and paid for. There is considerable literature about a
18:57phenomenon called regulatory capture, sometimes called agency capture. It's the
19:02capture of regulatory agencies by industry to corrupt government
19:07decision-making. You can imagine railroad barons taking over a railroad commission
19:14whose job it is to set the rates for their railroads. Well, the Supreme Court
19:20has been captured in the same way. And this was no small or incidental
19:27undertaking. True North Research estimates that at least 580 million
19:34dollars has been spent on the court capture operation. These groups were a
19:41significant part of it, and these groups enjoy the benefit of it. Now 580 million
19:55dollars is a lot of money, but just these four decisions are payback for the
20:03polluters that makes that 580 million dollars a cheap investment. And the
20:11public will pay the price, but that's a price that this captured court is happy
20:16to have the public pay. I'm going to conclude with Justice Kagan's dissent in
20:22the Loper case. She pointed out, because she saw this game play out right in
20:31front of her, she's over there on the court watching this game play out, and
20:35she pointed out that the polluters justices stopped applying the Chevron
20:43doctrine back in 2016 as part of a plan. Because, she said, they were, and I'm
20:53quoting her here, preparing to overrule Chevron since around that time. An
21:00eight-year-long plot to take out a precedent that bothers polluters. Forget
21:11calling balls and strikes. These justices were on a multi-year billionaire
21:18polluters mission. And it's not just Chevron. This is a pattern. As Justice
21:27Kagan went on to say, this kind of self-help on the way to reversing
21:36precedent has become almost routine at this court. And here's how she describes
21:43it. Stop applying a decision where one should. Throw some gratuitous criticisms
21:50into a couple of opinions. Issue a few separate writings questioning the
21:55decision's premises. Give the whole process a few years, and voila, you have a
22:03justification for overruling the decision. Something she called an
22:10overruling through enfeeblement technique that mocks stare decisis. As she
22:20described it, this captured court, at the big donor's direction, stalks for years
22:30and then kills off precedent that the billionaires don't like. Precedent that
22:37interferes with their polluting or interferes with their cheating. That
22:41stalking and killing plan may be a lot of things, Mr. President, but I'll tell
22:49you what it's not. What it's not is judging. To be continued, Mr. President, I
22:57yield the floor.