Investigation Reveals How Dark Money Bought a Supreme Court Seat

Interview with Andrew Perez, senior editor and reporter at The Daily Poster, conducted by Scott Harris

In 2016, then-Republican Senate Majority Leader Mitch McConnell refused to hold hearings on President Barack Obama’s Supreme Court nominee Merrick Garland, to fill the seat left vacant by the death of Antonin Scalia, eight months before the November 2016 election.  McConnell said at the time, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”  But just eight days before the 2020 presidential election, the U.S. Senate, under Majority Leader McConnell, voted 52 to 48 to confirm Judge Amy Coney Barrett to the Supreme Court, just 30 days after President Trump nominated her to fill the seat of the late Justice Ruth Bader Ginsburg.

The naked hypocrisy of Senate Republicans in their successful effort to pack the court with an extremist 6 to 3 conservative super majority was on full display for all to see. However, the dark money network employed to win Senate confirmation for Trump’s Supreme Court nominee Amy Coney Barrett wasn’t widely reported to the public at the time.

Between The Lines’ Scott Harris spoke with Andrew Perez, senior editor and reporter at The Daily Poster news site, who talks about his investigation titled, “How Dark Money Bought A Supreme Court Seat.” In that piece, he and co-writer Julia Rock tracked the millions of dollars in dark money that played a pivotal role in confirming Judge Barrett, but will also help shape high court rulings on reproductive rights, civil rights, labor rights and corporate regulation for years to come.

ANDREW PEREZ: Leonard Leo is a longtime executive at The Federalist Society, which is basically a conservative legal network in Washington, D.C, Most of or a lot of the Trump administration Cabinet picks were Federalist Society lawyers. They’re very good at placing officials throughout Republican administrations. And so Leo is a long term executive there. He’s now the chair of the organization.

He’s sort of taking a step back operationally. But he has shifted over to effectively lead this conservative dark money network. It’s under the umbrella group of the Judicial Crisis Network, is how it’s always been known. But it’s now called the Concord Fund, and they sponsor a bunch of other conservative organizations. And they also have a charitable arm called the 85 Fund that then has funded a lot of other organizations. You know, the way that it’s kind of worked in the past is that they’ve used this sort of daisy chain of dark money groups to funnel money into the Judicial Crisis Network, which then spends a lot of money on confirmation campaigns. And they’ve been doing that since John Roberts, actually. So they’ve been doing it for for several years and under Trump, Leonard Leo actually became his his judicial adviser.

So, you know, he’s helping Trump select the nominees. And then he’s helping steer the organizations that are responsible for advocating for that nominee as well. And what we recently found is that he put $22 million from one nonprofit that he started a few years ago into the Judicial Crisis Network last year in 2020, when Amy Barrett was up for confirmation.

SCOTT HARRIS: How is this money spent to gain influence in the U.S. Senate that confirm Supreme Court nominees like Amy Coney Barrett? And where does this money come from originally? What’s the source of the funds, the billions of dollars that fund this effort? 

ANDREW PEREZ: Yeah. Well, to answer your second question, it is completely unclear where the money is coming from. You know, there are obviously only so many people who can afford to give millions of dollars to this kind of effort. So you’re going to have to assume they’re phenomenally wealthy. But most of the money has never been traced at all. But you know, the way that they run the campaign is Judicial Crisis Network buys ads. Their staff does this kind of full court press in the conservative media where they’re just everywhere. And they they then fund some of the other organizations, outside conservative groups that are backing the nominee as well. So it creates this kind of echo chamber of support. They did this for (Supreme Court Justices) Neil Gorsuch, for Brett Kavanaugh and then again, for Amy Barrett. Oh, and they also used this group to oppose Merrick Garland’s confirmation in 2016, Obama’s nominee who never got a confirmation vote in the Mitch McConnell-led Senate.

But the thing is, they also work in pretty close lockstep with Senate Republicans as well. So, they have an eager ally in Senate Republicans who also want to pack the courts the same way.

The Democrats, they’ve also raised a lot of money on kind of like a comparable effort. But it is hard to compare them because Joe Biden, you know, and Democrats don’t seem exactly eager to really try to do what they would need to do right now to take back the court, to undo what’s what’s become now a conservative supermajority that is threatening abortion rights, threatening any kind of environmental regulations.

Democrats do not really seem eager to add court seats. That’s just not something that’s going to happen. And you know, it is worth mentioning here that Democrats don’t want to end the filibuster. But the only reason that Trump was able to install these judges so easily is that Mitch McConnell changed the threshold for Senate Republicans to change the threshold, basically ending the filibuster for judicial nominees. That plays a big role here, but Democrats do not want to undo the same kind of norms that Republicans have, and so it doesn’t quite matter, you know, to the extent that Democrats have been able to raise money for their own kind of counterweight court network because they just don’t have the same juice actually in Congress, where they could get things done the same way that the right has.

SCOTT HARRIS: Andrew, are there any regulations about the money spent in favor of or to oppose judicial nominees, Supreme Court nominees included? Are there any regulations at all about the money used and how it’s spent? 

ANDREW PEREZ: I’d say fairly little. That kind of spending falls under what’s considered issue spending. It’s not treated the same way that like campaign spending is. They do not have to disclose their donors publicly. The Democrats for the People Act, their kind of sweeping campaign finance and democracy reform legislation and voting rights legislation would address this. It would require groups that spend on nonjudicial nominations to disclose their donors.

But, that bill is not exactly moving because Joe Manchin has said he opposes it in its current form. He’s supported these kind of compromise measures, but you know, they they wouldn’t affect the judicial spending in the same way.

For more information on The Daily Poster, visit dailyposter.com.

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