The Scheme 33: The Undoing of the Modern Regulatory State

Mr. President, I am back now for the 33rd time to keep shining a little light on the rightwing billionaires' covert scheme to capture and control our Supreme Court. As a result of that scheme, the Court's rightwing just took a wrecking ball to the government's ability to protect Americans from big polluters and corporate cheaters.

This year's billionaire bonanza came through four decisions that gutted administrative Agencies' ability to do their job-perfect payback to the polluter billionaires who helped foot the bill to get these Justices onto the Court in the first place.

The first decision is Ohio v. EPA, where the Supreme Court undermined the Environmental Protection Administration's ability to enforce the ''good neighbor'' provision of the Clean Air Act, the provision that defends the air quality of ''downwind'' States like mine, Rhode Island, from powerplants and industrial facilities in ''upwind'' States, where sometimes they build the smokestacks extra high so that the pollution doesn't hit the polluting State, but it floats over and comes down and hits us in Rhode Island.

Without even full briefing on the merits, industry litigants succeeded in getting the Court to stall proposed clean air regulations and place a thumb on the scales in favor of polluters. At the hands of the Federalist Society Justices, the right of polluters to pollute beat the right of Rhode Islanders to breathe clean air.

Then came SEC v. Jarkesy, where the rightwing Justices undercut the ability of Federal Agencies to hold fraudsters accountable through administrative enforcement proceedings. The Court held that civil penalties for securities fraud required a jury trial under the Seventh Amendment, undermining administrative adjudication in all sorts of civil enforcement proceedings across the Federal Government-protecting consumers from predatory financial institutions, workers from unsafe conditions, and the environment against polluters.

I am angry that the Court picked this case to express concern about the right to a civil jury while it has been busily eroding that same civil jury right when doing so favored big corporations over regular people. If you are a fraudster on the losing end of a regulatory violation, they are all about the Seventh Amendment. If you are a consumer or employee injured by a big business, off you go to private, secret, mandatory arbitration. At the hands of the Federalist Society Justices, the right of fraudsters to commit fraud defeated the right of people to be protected from fraud.

In Loper Bright Enterprises v. Raimondo, the Court overruled 40 years of precedent granting what is called Chevron deference to Federal Agencies when they are implementing laws that protect health, safety, and the environment. Chevron recognized that courts should defer to an executive Agency's reasonable interpretation of a statute it is charged with administering. Just reading that sentence tells you how eminently reasonable the rule was. Plus, Congress can't be expected to make fine-grained determinations in technical areas that are best left to experts with decades of training and experience. In Loper, the rightwing Justices removed that deference to expertise.

The result? Look at this Washington Post headline: ''Corporate lobbyists eye new lawsuits after supreme court limits federal power''-more ways for polluters to stall regulations with delays that could save polluters billions. Just to read this text: Mere hours after the Supreme Court sharply curbed the power of federal agencies, conservative and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations in Washington.

These cases are a power grab by a captured Court, transferring regulatory authority from an elected Congress and an elected executive to an unaccountable judiciary ill-suited to make such technical determinations.

Almost laughably, as they did this, Justice Gorsuch had to amend his opinion in that Ohio v. EPA case because he confused ''nitrous oxide''-laughing gas-with ''nitrogen oxides'' that were the subject of that case. So much for judges knowing technical stuff better than the experts. The right of Federalist Society judges to make up fake science for billionaires triumphed over the right of regular people to have real experts defend them.

Finally, in Corner Post v. Federal Reserve, the Court held that the 6-year statute of limitations to challenge a Federal Agency's action begins when a person or entity challenging a rule is allegedly injured-maybe decades after the rule became law. Every regulation can now be litigated for eternity. Agencies will be perpetually vulnerable to litigation on every rulemaking stalled by deep-pocketed litigants armed with exotic legal theories and the backing of this captured Court.

As Justice Jackson wrote in her dissent in Corner Post: The tsunami of lawsuits against agencies . . . has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in our economy and our society.

At the hands of the Federalist Society Justices, the power of special interests to tangle up regulatory Agencies has defeated the right of taxpayers to protection from those special interests.

Here is how I explained that protection in my amicus brief in the Loper case: "Over the last century, our society has advanced remarkably. As industries and corporations grew, their motive to maximize profits caused social harms and threatened consumer safety. Regulation responded. Heavy equipment and dangerous chemicals came to mines, factories, and construction sites; regulators implemented workplace safety standards. Meatpacking and mass production . . . ballooned; regulators implemented sanitation requirements in production facilities. Americans widely adopted automobiles; regulators required seat belts and air bags."

"The modern economy necessitated a modernization of the U.S. regulatory framework. Congress responded to the complexities of the modern world by ensuring that administrative agencies have the capacity, flexibility, and expertise to respond to new developments. Part of that project was delegating clear and broad authority to executive agencies and allowing those agencies to adopt and adapt regulations to respond to new hazards. As a result, daily life in the United States is safer. Workplace illnesses, injuries, and deaths declined. Children on average have lower levels of lead in their blood. Foodborne illnesses that used to kill thousands of people per year have been practically wiped out. Highways are no longer 'carnage,' and air travel is even safer than highway travel."

So why tear down what has worked so well for generations? Well, the billionaire-funded think tanks say it is to strip power from so-called ''unaccountable bureaucrats.'' They love to talk about unaccountable bureaucrats-except that Federal Agencies are not unaccountable. Indeed, they are way more accountable than judges.

Again from my Loper brief: "Agency experts report to politically appointed executive agency heads nominated by the President and confirmed by the Senate. Accountable. These agency heads serve at the pleasure of the president, who is accountable to the people. If the public is unhappy with how agencies are implementing Congress's policies, voters can make that known at the ballot box. Congress oversees agency actions through legislative committees dedicated to agency oversight, and regularly conducts oversight hearings where heads of agencies are called to account. Congress retains the power to enact legislation to limit or reverse agency rulemakings if it disagrees with the agency's actions, in some cases on an expedited calendar. Furthermore, Congress holds the power of the purse; every appropriations bill presents an opportunity to expand, correct, or contract agency authorities. If the public is unhappy with how Congress is holding agencies accountable, voters can make that known at the ballot box. Finally, agencies are accountable to the judiciary, which has the authority to review an agency's statutory interpretations and actions to ensure the agency's decisions are reasonable and follow appropriate processes and procedures."

The myth of unaccountable administrative Agencies is a fake. The real objection is that career agency employees are experts and can go toe-to-toe with industry trickery. And worse, for polluters, they can't put the fix in politically with a big campaign contribution or a couple of million dollars to a super PAC because Agencies are forbidden to take political considerations into account, and they are forbidden to self-deal.

All of this wreckage of the longstanding protections of our administrative process was done by polluters who fund the Republican Party and paid to stack the Court that dark money built, and this is the polluters' payday.

A whole smelly ecosystem of secretly fronted front groups is involved. Antiregulation doctrines get cooked up in rightwing hothouses funded by polluters. The doctrines get amplified by rightwing front groups funded by polluters. They then get fed to the Court via little flotillas of rightwing amici funded by polluters. Secret, dark money funding from billionaire special interests underpins the entire operation. Much of this is the Koch Industries' political influence operation-a powerful, rightwing, dark money political polluter network.

Look at that Loper case. The lawyers who represented the petitioners in that case worked for free-supposedly-for a public interest law firm supposedly called Cause of Action. Interesting law firm: It discloses no donors, and it does not report any employees.

In fact, the New York Times discovered the group's lawyers who supposedly work for Cause of Action actually work for Americans for Prosperity, the main battleship of the Koch political front group armada-an operation that is so cozy with the far-right Justices it helped put on the Supreme Court that Justice Thomas has repeatedly flown out to join fundraisers for Koch political operations, including Americans for Prosperity. Here is the flotilla of front groups that appeared in Loper as amici curiae: the Buckeye Institute, the Cato Institute, the Competitive Enterprise Institute, the Landmark Legal Foundation, the Mountain States Legal Foundation, the National Right to Work Legal Defense Foundation, the New Civil Liberties Alliance, the Pacific Legal Foundation, and, of course, our dear friends the U.S. Chamber of Commerce-a proper murderers' row of polluter mischief.

And who are they funded by? Oh, let's look. DonorsTrust, the Donors Capital Fund, Koch family foundations, the Bradley Foundation, and ExxonMobil itself.

DonorsTrust and Donors Capital Fund are so-called donor-advised funds. They don't actually do anything. They don't actually produce anything, build anything. What they do is provide rightwing identity-laundering services. DonorsTrust has been described as the ''dark-money ATM of the right'' and, with Donors Capital, has laundered over a third of a trillion dollars into climate denial operations.

If you are ExxonMobil or a billionaire polluter and you want to support climate denial but you don't want your name on the phony front group that is doing the climate denial work, you send your check to DonorsTrust, and they take it and they send the money where you tell them-to the other group-only it is disclosed by them as coming from DonorsTrust. It is an identity-laundering operation for dark money political influence.

Some amici also were funded by front groups affiliated with Leonard Leo, whom we know as the billionaires' operative in the Court capture operation. The Loper amicus Advancing American Freedom received $1.5 million from Leonard Leo's Concord Fund between 2020 and 2021-$1.5 million. Leo's Concord Fund, which is this operation on this graphic, operates also under the fictitious name of the ''Judicial Crisis Network.''

When I say ''fictitious name,'' I mean that under Virginia corporate law, Concord Fund has filed ''Judicial Crisis Network'' as a fictitious name-term of art in the law-under which it is allowed to operate without disclosing that it is actually the Concord Fund.

Through the Judicial Crisis Network, Leo and his confederates spent millions of dollars on the Court capture operation: TV ads, barrages of TV ads, huge checks in for $15 million and $17 million from undisclosed donors to pump the rightwing Justices that they had chosen through confirmation.

So this same group that helped push the Justices from the Federalist Society lists onto the Supreme Court then files a brief through Advancing American Freedom-$1.5 million from Concord into Advancing American Freedom. This whole thing is a billionairebacked shell game in which the Court willingly participates.

The connection between Court capture and regulation destruction-that is not even in dispute. The Court capture operation and the anti-regulatory operation were admitted by Trump's White House Counsel, Don McGahn, to be-and I am quoting him here-''two sides of the same coin.''

You stack the Court to tear down the regulations so your polluters are happy and they fund your effort to stack the Court and support Republican power. And about this slate of recent decisions I have just discussed, he proudly told the New York Times-and I am quoting him again- ''None of this was an accident.'' ''None of this was an accident.'' Indeed. It was bought and paid for.

There is considerable literature about a phenomenon called regulatory capture, sometimes called Agency capture. It is the capture of regulatory Agencies by industry to corrupt government decisionmaking. You can imagine railroad barons taking over a railroad commission whose job it is to set the rates for their railroads.

Well, the Supreme Court has been captured in the same way. This was no small or incidental undertaking. True North Research estimates that at least $580 million has been spent on the Court capture operation. These groups were a significant part of it, and these groups enjoy the benefit of it. Now, $580 million is a lot of money, but just these four decisions are payback for the polluters that makes that $580 million a cheap investment. And the public will pay the price, but that is a price that this captured Court is happy to have the public pay.

I am going to conclude with Justice Kagan's dissent in the Loper case. She pointed out-because she saw this game play out right in front of her. She is over there on the Court watching this game play out. She pointed out that the polluters' Justices stopped applying the Chevron doctrine back in 2016 as part of a plan because, she said, they were-and I am quoting her here- ''preparing to overrule Chevron since around that time''-an 8-year-long plot to take out a precedent that bothers polluters.

Forget calling balls and strikes; these Justices were on a multiyear billionaire polluters' mission. It is not just Chevron; this is a pattern. As Justice Kagan went on to say: That kind of self-help on the way to reversing precedent has become almost routine at this Court.

And here is how she describes it: ''Stop applying a decision where one should; throw some gratuitous criticisms into a couple of opinions; issue a few separate writings questioning the decision's premises; give the whole process a few years . . . and voila!-you have a justification for overruling the decision,'' something she called an ''overruling-through-enfeeblement technique [that] mock[s] stare decisis.''

As she described it, this captured Court, at the big donors' direction, stalks for years and then kills off precedent that the billionaires don't like, precedent that interferes with their polluting or interferes with their cheating. That stalking and killing plan may be a lot of things, Mr. President, but I will tell you what it is not: What it is not is judging.

To be continued. I yield the floor.

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