Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to legislative session and be in a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I understand there is a bill at the desk due for a second reading.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, the Senate is considering H.R. 4366, the Consolidated Appropriations Act of 2024. That legislation contains appropriations designated as emergency funding. Today, I am adjusting the allocation to the Committee on Appropriations, colloquially known as the 302(a), consistent with those appropriations. Section 251 of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended by the Fiscal Responsibility Act of 2023, establishes statutory limits on discretionary funding levels for fiscal years 2024 and 2025 and allows adjustments to those limits. Sections 302 and 314(a) of the Congressional Budget Act allow the chairman of the Budget Committee to revise the allocations, aggregates, and levels consistent with those adjustments. Division G of the bill contains several authorizing provisions, such as an extension of Federal funding for community health centers, that are paid for over 10 years. Section 121(c) of the Fiscal Responsibility Act of 2023 contains a reserve fund that authorizes the Budget Committee chairman to revise budget aggregates and committee allocations for legislation that would not increase the deficit over the period of fiscal years 2024 to 2033. Division G meets the conditions of that reserve fund, and I am making those adjustments. Finally, I am adjusting for three additional bills that have been recently passed by the Senate. First, H.R. 815, the National Security Act, provided $95 billion in supplemental budget authority designated as emergency funding. With this adjustment, the supplemental will not supplant base funding provided subject to the fiscal year 2024 discretionary spending limits. The other deficit-neutral legislation that is eligible for a reserve fund adjustment is division B of H.R. 2872, the January continuing resolution, division B of H.R. 815, the FEND Off Fentanyl Act, and division B of H.R. 7463, the March continuing resolution. I ask unanimous consent that the accompanying tables, which provide details about the adjustment, be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, as the Senate considers the minibus appropriations bill setting funding levels for fiscal year 2024, as Budget chairman, I want the record to reflect that I filed the requisite statements in the record adjusting the appropriations topline, known as the 302(a)s, to allow this bill to proceed. It complies with the spending agreement reached in January between the Senate majority leader and the Speaker of the House. This bill has major wins for workers, families, and for our climate safety. First, it resisted House Republicans' attempts to include harmful anti-environmental riders. These toxic anti-environment poison pills have no place in any bipartisan spending deal. They have nothing to do with Federal spending; they are backdoor attempts to jam through unpopular legislation that would never withstand the scrutiny of regular order. Second, this bill continues funding our clean energy future. It includes nearly $1.7 billion to continue nuclear energy research and development, including funds for microreactors and accident-tolerant fuels; $60 million for DOE's new Grid Deployment Office to aid in the development of much needed interregional electric transmission; more than $950 million for industrial decarbonization to make American companies more competitive in the global marketplace and address major sources of greenhouse gas emissions; and $137 million for Department of Energy's Wind Energy Technologies Office to accelerate the deployment of wind energy. These are meaningful clean energy provisions that will help pave the way to a sustainable future for our children and grandchildren, while providing green jobs now. Third, this bill provides a combined $480 million for carbon management technologies to assist industries in removing carbon dioxide from industrial facilities, powerplants, and even directly from the air. These technologies will reduce the harmful effects of fossil fuel emissions and decarbonize the industrial sector, while spurring American innovation and increasing economic opportunities across our entire country. While this bill includes important climate wins, it also includes many other policy wins that will promote a stronger, safer, and more prosperous American future. We all benefit from passing these bipartisan spending bills and avoiding a harmful government shutdown, and I am glad to be able to make the necessary budget adjustments. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask for the yeas and nays.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE. Mr. President, I am back today for the 29th time on my ``scheme'' series to explain to the American people how the rightwing managed to capture the Supreme Court. Today, I would like to discuss the scheme's deliverables--how the Court rewarded its big donors with favorable outcomes that benefited partisan Republican or corporate interests and, particularly today, how the Roberts Court used false facts to produce decisions like Shelby County and Citizens United. This speech is the short form. For the full analysis or the long form, you can read my recently published law review article in the Ohio State Law Journal, 84 Ohio St. L.J. 837 (2023). False factfinding is the trick that has enabled the Court to do a lot of damage in recent years. Let's start with some basic principles about how factfinding is supposed to work in the American judicial system. Facts are an important part of every case, and it matters to get them right, and it also matters that courts stay within their constitutional boundaries. To achieve those two purposes, the American system has facts ascertained at the trial court level--the trial court level. First, the trial judge is closest to the facts on the ground. That is where the evidence comes in. That is where each party can challenge each other's facts, where facts receive robust adversarial scrutiny. That is where the judge can evaluate credibility and dedicate the time to compiling a robust factual record. In all of this, one key point is that the judge relies on the parties to bring the facts to the court. With only limited exceptions, a court isn't supposed to venture off looking for its own facts. Once the trial court makes its decision and assembles its record of the facts, that record travels with the case when a party appeals to a higher court. As to facts, an appellate court is not supposed to find its own; it is supposed to give the lower court a lot of deference. A lower court's factfinding can usually be overturned only if there was what is called clear error--a very hard standard to meet, as any lawyer will tell you. Even after a clear error finding, the ordinary rule is that the case is remanded back to the trial court for whatever further factfinding is required to comply with the appellate court's edict. These rules make our system honest and efficient. They allow robust challenge to the facts at trial but deference to the judge's findings on appeal. They do not set appellate courts up as factfinders. Appellate courts focus on questions of law using the record established by the trial court. These factfinding rules also protect our American separation of powers. Under the Constitution, courts are limited to deciding only what the Constitution calls ``cases or controversies.'' By obvious implication, that means actual cases or controversies with their actual facts. Without that, judges could make decisions based on hypothetical facts--in effect, offer unconstitutional advisory opinions. A court can't honor the Constitution's case or controversy requirement without cabining its decision to the actual facts of the case or controversy and to this established factfinding process. If that limitation did not exist, appellate judges could become, as one famous judge warned, ``a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.'' One other factfinding body needs to be mentioned, and that is Congress. Congress is the Constitution's policymaking body--that is our job--not because we are geniuses but because if our ideals of beauty or of goodness don't match the public's, the public can throw us out. That is democracy. The democratic process provides the public protection. Congress has its own factfinding authority under the Constitution. We often find facts ourselves, creating a legislative record--not the trial record of a trial court, a legislative record of the proceedings leading to a bill. This factfinding authority merits deference from courts--again, not because we are smarter, but because we are correctible through democratic process. Which brings us to the mischief at the Roberts Court. For more than a decade now, the Roberts Court has violated these basic principles, replacing facts found by Congress and facts found by lower courts with fake facts that they made up on their own--fake facts that over and over just happen to suit the big donors who put so many Republican- appointed Justices on the Supreme Court. Shelby County and Citizens United--both of those decisions--stood upon falsehoods presented as facts. These weren't just drive-by errors in passing, of no moment; these were false factual findings that were essential to prop up the logic of the Court's holdings. No false facts; no desired outcome. Tellingly, even after events thoroughly disproved the false facts, the Republican Supreme Court refused to correct its mistakes, and so these faulty decisions founded on false facts live on like zombies plaguing our democracy. Let me talk about those two cases because they are probably the worst examples. In Shelby County, the Supreme Court said that the most important part of the Voting Rights Act--the part that required States with a history of racist voter suppression to get clearance before new voting laws went into effect--was no longer justified. That part of the law was just no longer justified because ``things had changed.'' According to Chief Justice Roberts, conditions in those States had improved so much that Congress should no longer screen their laws for racist voter suppression. That false fact was key to the analysis overturning this part of the Voting Rights Act, but there was no record support for that false fact. It just popped out of the heads of the Justices who wrote that decision. In actuality, in Shelby County, Congress had compiled thousands of pages of evidence, a record of facts collected through extensive hearings and research regarding the danger of minority voter suppression in those so-called preclearance States. The Court ignored that. Worse still, preclearance States, no longer subject to these Voting Rights Act protections, immediately proved that the dangers that the Court said weren't there were, in fact, there, that these dangers were true, moving immediately to enact laws that targeted minority voters ``with almost surgical precision,'' as one court put it. Despite the evidence before and after disproving the Court's so-called finding in Shelby County that everything was OK now, the Roberts Court has refused to budge, leaving that zombie decision in place. The trick was even clearer in Citizens United. The bipartisan campaign finance law at issue was supported again by a robust congressional, factual record. Congress had held hearings, gathered firsthand accounts, and wrote lengthy reports on the problems plaguing our campaign finance system. Lower courts had also assembled similar records with evidence of these problems, many of which suggested corruption. All of that was ignored. The Republican-appointed Justices in Citizens United had a problem. Congress gets to legislate to protect the integrity of elections. We get to legislate to protect elections from either corruption or the appearance of corruption. So to get around that--to keep Congress out of protecting the integrity of our elections--the Justices had to come up with a way of arguing that unlimited political spending in politics wouldn't and, indeed, couldn't harm election integrity. They had to manufacture that finding to subvert Congress' power, and to get there, they had to make two factual findings. First, they argued that there was no risk of corruption or even the appearance of corruption because all this new spending they were going to unleash would be independent--independent--from the campaigns the spending was supporting. Well, that has been proven abundantly false. Even more obviously, they said that all this new political spending they were unleashing would be transparent--not just independent but also transparent. The voters would know who was behind the big, unlimited political spending and could make their decisions accordingly; and therefore, the danger of corruption was lifted by the fact that the voters would know whose money was behind the ads. Well, folks, it is nondebatable that that fact is false. Partisan billionaires and corporate special interests have spent billions in dark money. This is so widely reported and incontestable that an honest court could probably even take judicial notice of the billions in nontransparent and, therefore, corrupting political spending. A lot of this money is supposedly independent, but in reality, the groups that spend it use all sorts of well-documented loopholes to coordinate with candidates and campaigns right in broad daylight. The tsunami of dark money that Citizens United unleashed has, as predicted, corrupted our democracy. The Court didn't have to wait for the newspaper to know that the facts it found were false. Shortly after Citizens United, a State campaign finance case came to the Supreme Court from Montana. The Montana Supreme Court upheld a 100-year old State campaign finance law on the basis of an extensive factual record about the history of campaign corruption specific to Montana. John McCain and I submitted a bipartisan brief to the Supreme Court in that case. Our brief pointed out the factual falsity of the Citizens United decision--that the spending was not independent; that the spending was not transparent; and, therefore, those factual predicates of Citizens United failed, and the decision should fall. Not only did the Republican-appointed Justices summarily reverse the Montana Supreme Court, not even allowing oral argument where, perhaps, this false factfinding might have been pointed out, the Court did so on the grounds that the Montana decision was inconsistent with Citizens United--no mention of the problem that Citizens United was inconsistent with the truth. Talk about a zombie decision. Since then, the Court has stubbornly refused to reexamine its false facts despite several billion instances of disproof of the transparency of the funding. Worse, a couple of terms ago, these Federalist Society Justices started paving the way even for a constitutional right to spend dark money. The billionaire rightwing donors who packed the Court did very well by these two decisions--by Shelby County and Citizens United. The suppression of minority voters across the South post-Shelby County likely flipped some elections to the Republican Party. The flood of dark money by billionaires and corporate interests was, for years, essentially entirely dedicated to funding Republicans in elections. If you want a specific example of corruption, look at how fossil fuel industry dark money has, since Citizens United, stopped Congress from passing any serious bipartisan climate legislation. I was here in 2007, 2008, and 2009 when climate legislation was very current in the Senate and very bipartisan--three or four major bills being worked on, strong bills, that would have helped solve the climate problem. Then came January of 2010, that date of infamy when Citizens United was decided. Since then, that is it--no serious bipartisan climate bill. These cases happened because the Court disregarded rules about proper factfinding, ignored mountains of evidence that Congress and that lower courts had assembled, and made up facts--just made up their own facts-- that helped them strike down the laws, delivering those big wins for Republican donor political interests. This free-range factfinding problem at the Court is going to get worse after the Court's recent move in cases like Dobbs and Bruen to base constitutional decisions under their new theory of history and tradition. This new theory opens whole new fields to judicial factfinding knight-errantry, cherry-picking historical facts to get the outcomes that they want to reach. Dobbs, the case that overruled Roe v. Wade, stood on dubious historical sources--like a 1600s treatise by someone who sentenced accused witches to death and defended marital rape--to subject women's reproductive autonomy to the whims of State legislatures. Bruen, the guns case, stood on an NRA-funded version of history that one historian called an ``ideological fantasy'' to put the proliferation of guns on our streets behind constitutional protection. When the Supreme Court goes on these last-minute, no-argument, ``made it up in our chambers,'' ``no chance of correction'' factfinding expeditions, there is no one to tell them: Hey, you got some stuff wrong. There is no one else the parties can appeal to. The factual errors slipped in at the end are protected from correction, and then the zombie cases march on. I wrote my law review article because this factfinding trickery hasn't gotten the attention it deserves either here in Congress or by professors and judges. There is no shortage of mess to clean up at the Supreme Court, whether it is the Court's ethics crisis or the phony front group amici curiae, who often show up to offer those false facts to the Court without any transparency or vetting themselves. My Supreme Court Ethics, Recusal, and Transparency Act would clean up a lot of the mess. But even if we passed that law and it helped clean up the ethics mess and even if we managed to unpack the Court that dark money built, these zombie decisions standing on false facts would remain effectual unless--unless--we have the legal theory to address them. My article proposes one way to scrub away these tainted decisions--by returning to the historic, basic, well-established factfinding principles of the American system of justice. Why should we in Congress not confront the false facts of this stubbornly wrong Court? Why should lower court judges be expected to blindly adopt false facts that never went through proper factfinding procedures? Why should Congress honor decisions that are, on their face, founded on false facts? Remember in Marbury v. Madison that the Supreme Court famously gets to say what the law is, but it is not the last word on what the facts are. Nothing in the Constitution says: We in Congress have to pretend that we really live in the alternative bizarro world of the Supreme Court's false facts. Congress need not be an idiot and accept rulings that we plainly see could not stand without indisputably false facts propping them up. The fact that the Supreme Court won't go back and clean up its false facts mess should not disable us from addressing the zombie decisions. If this requires circumscribing the Court's authority, as far as I am concerned, too bad. Better that than to have citizens have to obey flawed decisions founded on false facts just because the Court liked who the winners were. This should not even be an issue. These factfinding rules have stood for centuries. It is only this politically driven Court that has stepped outside the bounds of history and tradition to go on these false factfinding galivants that have no proper role in judicial factfinding and that violate the boundaries of separation of powers. Reining it back in, in that circumstance, is a proper response, and if the Court doesn't like this, I would say: Heal thyself; quit breaking the historic process of factfinding, and quit finding obviously false facts, and go back and clean up those false-fact decisions. That is one option. They could do it, but, of course, the Federalist Society Justices won't because this is a captured Court, and the false fact outcomes are the outcomes the billionaires who pack the Court want. To be continued. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that the resolutions be agreed to, the preambles be agreed to, and that the motions to reconsider be considered made and laid upon the table, all en bloc.

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate now proceed to the en bloc consideration of the following Senate resolutions submitted earlier today: S. Res. 577, S. Res. 578, and S. Res. 579.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate be in a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 10 a.m. on Thursday, March 7; that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and morning business be closed; further, that following the conclusion of morning business, the Senate proceed to executive session to resume consideration of the Noti nomination; further, that the cloture motion with respect to the Noti nomination ripen at 11:45 a.m.; further, that if cloture is invoked on the Noti nomination and notwithstanding rule XXII, the Senate resume legislative session to execute the order of February 29, 2024, with respect to S. 3853, and that the Senate vote on passage of that bill at 2:15 p.m.; further, that upon disposition of S. 3853, the Senate resume executive session and all time on the Noti nomination be considered expired; that if the nomination is confirmed, the motion to reconsider be considered made and laid upon the table, and the President be immediately notified of the Senate's actions.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, if there is no further business to come before the Senate, I ask that it stand adjourned under the previous order, following the remarks of Senator Sanders.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that the concurrent resolution be agreed to and the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of H. Con. Res. 93, which is at the desk.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 7454, which was received from the House and is at the desk.

Mr. WHITEHOUSE. I further ask that the bill be considered read a third time and passed, and the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Presiding Officer of the Senate be authorized to appoint a committee on the part of the Senate to join with a like committee on the part of the House of Representatives to escort the President of the United States into the House Chamber for the joint session to be held at 9 p.m. on Thursday, March 7, 2024.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I have eight requests for committees to meet during today's session of the Senate. They have the approval of the Majority and Minority Leaders. Pursuant to rule XXVI, paragraph 5(a), of the Standing Rules of the Senate, the following committees are authorized to meet during today's session of the Senate: committee on commerce, science, and transportation The Committee on Commerce, Science, and Transportation is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 10 a.m., to conduct a hearing. committee on environment and public works The Committee on Environment and Public Works is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 10 a.m., to conduct a hearing. committee on finance The Committee on Finance is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 2:15 p.m., to conduct an open executive session. committee on foreign relations The Committee on Foreign Relations is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 10 a.m., to conduct a hearing. committee on homeland security and governmental affairs The Committee on Homeland Security and Governmental Affairs is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 9:30 a.m., to conduct a business meeting. committee on the judiciary The Committee on the Judiciary is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 10 a.m., to conduct a hearing on nominations. committee on veterans' affairs The Committee on Veterans' Affairs is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 10 a.m., to conduct a joint hearing. select committee on intelligence The Select Committee on Intelligence is authorized to meet during the session of the Senate on Wednesday, March 6, 2024, at 2:30p.m., to conduct a closed briefing.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, pursuant to section 904 of the Congressional Budget Act of 1974, I move to waive all applicable sections of that Act and any other applicable points of order for the consideration of H.R. 815. And I ask for the yeas and nays.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I am back now for the 28th time in my series of speeches on the special interest scheme to capture the U.S. Supreme Court. What I would like to do today is to talk a little bit about the Judicial Conference and what the Judicial Conference has been doing to help clean up the mess at the Supreme Court. I suppose I should start with ``What is the Judicial Conference?'' The Judicial Conference is a body created by Congress around 100 years ago as the chief governing and policymaking body of the Federal judiciary. It basically supervises the administrative side, not the adjudicative side--the administrative side--of the judicial branch of government. It is chaired by the Chief Justice, and its membership is composed of the chief judges of each circuit and of the Court of International Trade. So it is a very distinguished group of very senior appellate judges and a district judge from each circuit--typically, a chief judge or a senior judge. Again, it is a pretty distinguished group. The Conference is responsible for, among other things, enforcing ethics rules, overseeing financial disclosures, and setting other policies across the Federal judiciary, which it mostly does through committees. It has committees on issues ranging from financial disclosure to things like courtroom security. The Judicial Conference has a very important role enforcing judicial ethics rules. Ethics rules are within its ambit of responsibility. Now, bearing in mind the recent ProPublica story concluding that the Judicial Conference has, to quote the story, ``often protected, not policed, the judiciary,'' I wanted to share my experience as I have conducted this investigation and how we have been able to work with the Judicial Conference. First, let me say, as a general matter, that the Judicial Conference is very reticent--very reticent. Getting even basic information, like which judge serves on which committee, is an uphill struggle. Last year, Business Insider, the publication, sought the list of members of the Committee on Financial Disclosure, and the Conference initially denied the request--what can I tell you--saying that the ``names of the members of the committee are not public,'' which is kind of a strange position to take when they are paid by taxpayers to do that work, and all you are asking is who they are. But, thankfully, later, the Conference reversed course. I requested the Judicial Conference disclose information, like who sits on its committees and what rules they operate by, but, so far, I have not yet received a formal response to that, and I very much hope that the members of the Judicial Conference will make this information public. Transparency is not a bad thing in this area. Anyway, through all of its established reticence, when I have brought issues to the attention of the Judicial Conference through correspondence or through remarks that I deliver at the Conference's twice-annual meetings in Washington, which I am invited to in my capacity as the chairman of the Senate Judiciary Courts Subcommittee, the Conference has generally produced positive results. My requests have covered four areas, and I will give you a quick overview of where those matters stand. First, I will talk about the disclosure rules for amicus curiae briefs, or ``friend of the court'' briefs. Dark-money front groups send flotillas of amicus briefs to the Supreme Court. The Justices and their clerks read these briefs. They often cite them in their official decisions. But it is basically judicial lobbying. The problem is that this flotilla of amicus briefs doesn't have to disclose the true source of the funding behind the briefs. So neither the Justices nor the other parties nor the public gets to know who is really paying for these arguments to be presented to the Supreme Court, nor do we know the interconnections among the front groups. To what extent are they single web of front groups masquerading as a great number of individual entities? We know for sure one thing: There was a brief filed under a ``fictitious name'' of another organization. It wasn't even a real entity that filed the brief. It was the ``fictitious name'' under Virginia law of a completely different group, and that was done without disclosing the name of the actual group to the Court. That means it is left to offices like mine to track these groups and then explain to the Court, which we do in our amicus briefs, how all of this flotilla of briefs is coordinated. Very often we see common dark-money donors. Very often we see the fingerprints of the rightwing billionaires' Court fixer, Leonard Leo, time and again. Dark-money groups pay huge sums to support rightwing Justices' confirmations onto the Court and then turn around and file amicus curiae briefs to signal to those Justices, whom they helped get on the Court, how they should rule. So, since 2019, I have asked the Supreme Court to strengthen its amicus disclosure rule. After much badgering, the Court, to its credit, sent this matter to the Judicial Conference for consideration, where, at the Judicial Conference, it was, in turn, referred to an advisory committee. Although that advisory committee hasn't yet formally proposed a rule change, things look promising. These judges who make up the Judicial Conference well recognize the importance of, as one judge said, knowing what she called the ``real power behind the throne'' in these flotillas of amicus briefs. It is also encouraging to hear judges on the committee recognize that there is a ``broad agreement,'' which they said, on the need for better disclosure. As always, the devil will be in the details, but, thus far, the Judicial Conference is on the case. It has announced that it is examining the matter. Another issue that I have raised with the Judicial Conference is what I call the ``Scalia trick,'' misuse of the ``personal hospitality'' exception in the financial disclosure rules. Justice Scalia got this trick named for him by taking dozens of high-end hunting trips for free, and he used this rule to avoid disclosing them. He pretended that a ``personal invitation'' from a resort owner, whom he had perhaps never met, made it ``personal hospitality'' protected by the rule. Senator Graham and I first sent a bipartisan letter to the Supreme Court about abuse of the personal hospitality exception back in 2021. This letter can be found online at https://www. whitehouse.senate.gov/download/2021-02-04-letter-with-graham-to-scotus- hospitality-and-code. After that, I sent several more letters asking the Court to address the ``Scalia trick.'' Those three letters can be found online at https://www.whitehouse.senate.gov/download/2021-08-30-letter-to- circuits-hospitality, https://www.whitehouse.senate.gov/download/2022- 04-18-letter-to-circuits-hospitality-follow-up, and https:// www.whitehouse.senate.gov/download/2023-02-21-letter-to-judicial- conference-personal-hospitality. The good news is that, in March of last year, the Administrative Office of the Courts wrote to me to say that the Committee on Financial Disclosure ``would clarify its regulations on `personal hospitality.' '' I will quote that word again, ``clarify,'' because it matters later. Sure enough, when the clarification came out, the Judicial Conference slammed the door hard on the ``Scalia trick''--so no more secret flights to and from hunting trips across the country on someone else's dime; no more secret ``personal'' hospitality paid for by a third party; and no more secret ``personal'' hospitality, so-called, at properties owned by a corporation. I count these clarifications as a win. So I will put that into the ``win'' column. There is a related question still pending from that. Justices Thomas and Alito claimed, last year, this same exception--the ``personal'' hospitality exception--let them accept their secret gifts of jet and yacht travel from rightwing billionaires without reporting it. In his most recent financial disclosure report, Justice Thomas claimed that he could keep those past gifts secret because what he called the committee's ``new rules''--his description--didn't go into effect until March 2023. And there I disagree. The disclosure law was always clear. It was the Judicial Conference's guidance that hadn't headed off the ``Scalia trick,'' likely because nobody imagined that any judge would be so bold as to have intermediaries ask resort owners to send them invitations for free travel and then call that ``personal'' hospitality. Anyway, the judiciary's letter to me said that the change was a ``clarification.'' And that word choice matters a lot here, because if it was, in fact, a ``clarification,'' then Justice Thomas and all the rest of the Supreme Court must amend their past filings to comport with the law, because it had always been that way, and they would have to disclose all the freebies kept secret in previous years. So pending at the Judicial Conference is my request that the Conference clarify whether the revised guidance constituted a ``clarification'' or a rule change. I do not have a response to that yet, but the end of the ``Scalia trick'' was a considerable win. I have also contacted the Conference about how omissions in Justice Thomas's financial disclosure report were handled by the Conference back in 2011. That correspondence can be found online at https:// www.whitehouse.senate.gov/imo/media/doc/05.02.2023%20-%20 Supreme%20Court%20Ethics%20 Hearing%20-%20Exhibit%2010.pdf and https:// www.whitehouse.senate.gov/imo/media/doc/2023-08-31_letter_to_ judge_mauskopf_financial_disclosure_ committee.pdf. Back then, Justice Thomas failed to disclose $700,000 that the far- right Heritage Foundation had paid his wife over several years. Justice Thomas's undisclosed yacht and jet travel, paid for by the rightwing billionaire Harlan Crow, also became public for the first time. So Members of Congress and a watchdog group sent the 2011 omissions to the Judicial Conference's Committee on Financial Disclosure for review. Under the law, the Conference is required to refer the matter to the Attorney General for further investigation if there is reasonable cause--reasonable cause--to believe that the violations may have been willful. Last year, my Courts Subcommittee heard testimony from a judge who was then on the Judicial Conference, who raised serious concerns about the Conference's ``reasonable cause'' inquiry. There is actually no indication that a ``reasonable cause'' inquiry was made, so in August, I wrote to the Administrative Office to find out more about what really happened. The Administrative Office acknowledged my request, but I have not yet received a response to my questions. The Judicial Conference is also considering Justice Thomas's more recent financial disclosure omissions. Congressman Hank Johnson, who is my coordinate as the top Democrat on the Courts Subcommittee on the House side, and I wrote to the Judicial Conference several times, along with other Members of Congress, asking for a review of these ethics violations and a determination as to whether referral to the Attorney General is required for this second round of yacht and jet travel from Republican billionaire Harlan Crow, for the real estate sale from Thomas to Crow, and for various gifts from other ultrawealthy individuals, including Paul Novelly and David Sokol. Madam President, those letters can be found online at https:// www.whitehouse.senate.gov/download/letter-to-judicial-conference- referral-to-ag_04142023 and https://www.whitehouse.senate.gov/imo/ media/doc/2023-08-11_letter_to_judge_ mauskopf_ thomas_gifts1.pdf. As in 2011, the current matter has been sent to the Committee on Financial Disclosure. We don't know exactly how the committee's review is going, but the Judicial Conference's report on its September meeting--its most recent meeting--included this interesting note on the committee's activities. The note said the committee was ``updated on the status of the ongoing review of public written allegations of errors or omissions in a filer's financial disclosure reports that were referred to it since the Conference's last session.'' So it seems like that is this matter, and it seems like that investigation is an ongoing review. The final issue I have raised with the Judicial Conference is my complaint against Justice Alito for what I thought was a pretty blatant ethics violation last summer. I addressed this complaint to Chief Justice Roberts both in his capacity as Chief Justice and as Chair of the Judicial Conference. Madam President, that letter can be found online at https:// www.whitehouse.senate.gov/imo/media/doc/2023-09-04_ complaint_from_ senwhitehouseenclosure.pdf. The Supreme Court, unlike every other Federal court, has no procedure for receiving or investigating ethics complaints, so that is why I sent it to him wearing both of those hats. The first thing I asked the Chief Justice to do was to change that. There should be a place where, with a complaint like that, I could go and file it and somebody would pay attention. I also asked that either the Conference or the Court conduct its own investigation into Justice Alito's comments in the Wall Street Journal's editorial page, made in an interview with David Rivkin, where Justice Alito offered his legal opinion that ``[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court--period.'' Well, it seems to me that is a slam dunk ethics violation for a couple of reasons. First, Justice Alito was opining on the constitutionality of my Supreme Court ethics bill, which the Senate Judiciary Committee had recently advanced, and the legitimacy of related oversight requests from the Senate Judiciary and Finance Committees. We have heard time and time again from Supreme Court nominees, including Justice Alito himself, that it is improper and a disservice to the judicial process--those were Justice Alito's words in his nomination hearing--for them to express opinions on a matter that might come before the Court. Well, boom. This was a matter that might come before the Court--indeed, it was actually likely to come before the Court--and there he was opining at will in the pages of the Wall Street Journal's editorial page. But it gets worse. He made his comments in the context of a specific ongoing legal dispute--a dispute involving Court fixer Leonard Leo, who had arranged for an undisclosed free jet trip and fishing excursion for Justice Alito and himself. When the Senate Judiciary Committee requested information about the gifts Leo arranged, we got a letter back from his lawyer, David Rivkin--the same person who conducted the interview that recruited the comment from Justice Alito. Justice Alito's comments in the Wall Street Journal echoed the exact argument that Rivkin had made when he refused to give us any information--i.e., that Congress has no authority to legislate on or oversee Supreme Court ethics, which is a weird position to take when you consider that the Judicial Conference, which oversees Supreme Court ethics, was created by an act of Congress. Anyway, the cherry on top of this whole mess, which I flagged also for Chief Justice Roberts in a followup letter--which can be found online at https://www.whitehouse.senate.gov/imo/media/doc/ alito_complaint_ addendum.pdf--came a month later when another billionaire, who is also alleged to have provided Justice Thomas with undisclosed gifts, cited Justice Alito's comments as support for his argument that this billionaire didn't have to answer our questions about those gifts. I sent that letter to Chief Justice Roberts as an addendum to my complaint, and I have not yet heard back. But it really does seem wrong that a Justice of the Supreme Court would offer an opinion on a matter that might come before the Court that actually relates to a specific, ongoing legal dispute in which the lawyer for a party in that ongoing legal dispute is doing the interviewing; that the person that lawyer represents is a friend and associate of the Justice himself; and that the result of that activity is that gifts to that very Justice are kept from public view, orchestrated by the client. It is a mess. The last thing we have is a letter that Senator Wyden and I just sent to the Acting Director of the Judicial Conference that relates to the recreational vehicle loan that Justice Thomas received. It appears from the Finance Committee's investigation that the principal on the loan was never repaid--not a dollar of it; that for a period, interest on the loan was repaid but then interest stopped being repaid. When you stop paying both principal and interest, that amounts to an act of forgiveness of the loan. Yet the forgiveness of that loan was never declared on his judicial ethics filings, suggesting that it might not have been disclosed even in his tax filings, which could lead to a whole second set of legal concerns. Madam President, that letter can be found online at https://www. whitehouse.senate.gov/imo/media/doc/ 2024-02-07_wyden_whitehouse_letter_ to_ao.pdf. It is not fair to expect the Judicial Conference to have done anything about that because it was just sent to them, but with respect to the other things, I would sum it up this way: The score at the Judicial Conference so far is one clear win on getting rid of the Scalia trick; major progress on disclosing who is really behind front group amici; an ongoing review of the billionaire gifts program at the Court as it relates to Justice Thomas in particular; and so far no response on the Alito-Wall Street Journal mischief. Like I said, it is a very reticent place. They move very slowly and have a lot of process. So I am just going to continue to press along in bringing information before the Judicial Conference so that they and the public can get clear answers on these issues. Certainly, the American people deserve transparency when it comes to fairness and gifts from interested billionaires to Justices of the Supreme Court. With that, to be continued. I yield the floor.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, let me start by thanking our Finance Committee chairman, Chairman Wyden, for his strong leadership. Chairman Wyden was able to secure the cooperation of the wealthy donor who gave Justice Thomas the $\1/4\ million-plus RV loan. The chairman doggedly followed the facts to get the truth for the American people, which takes guts, particularly when you consider the many special interests rooting for this investigation to go away. And while I am thanking the chairman, let me also thank Chairman Durbin for his persistent and dogged pursuit of the truth through the Judiciary Committee. Both the Judiciary and Finance Committees are working to get to the bottom of this. Keep in mind, in all the ethics mess engulfing Justice Thomas, that for every ethics issue, there is also likely a tax issue; perhaps, two sides of the same coin. If a Justice isn't reporting income on his legally required financial disclosure, there is a good chance that something is amiss with his tax reporting as well. When a Justice receives something of value from a benefactor, the presumption is that it needs to be disclosed under the ethics law either as income or as a gift. Generally speaking, if it is income, the Justice must also report it as income for income tax purposes; and if it is a gift, the donor needs to report it for gift tax purposes--which is why when you are looking at possible ethics violations in situations like this, it is important to know if that income showed up on the tax side or if that gift report showed up on the tax side. That is why Chairman Wyden's leadership here is so essential. If this went unreported, that could be a tax law violation. Again, if it is a gift, the Justice needs to disclose it under the ethics law unless it falls under a narrow definition for ``personal hospitality''--spending Christmas with your in-laws, for instance, or going on a trip with your college roommates. So either way, the tax question becomes for donors, for gifts, did the benefactor or did the donor report it for gift tax purposes? So you have the income tax reporting issue, the gift tax reporting issue. And then you have a third issue, which is that these tax filings can also test the veracity of what Justices claim. Justices Thomas and Alito claim they didn't have to report free jet and yacht travel gifted by billionaires because those gifts, they claimed, were personal hospitality. There were no college roommates or in-laws involved. It is a heck of a stretch to call this personal hospitality. But one of the ways you could test whether it is personal hospitality would be by looking at how the donor of the hospitality treated it on their taxes. It would be a pretty good tell that all that hospitality those Justices received was not so personal if the yacht and jet travel gifted to Justices Thomas and Alito was written off by these billionaires as a tax expense--as a business expense. So there is a lot to be learned from tax filing. Two other reminders as we go through this. One, it is a crime. It is a crime under 18 U.S. Code section 1001 to file a false sworn statement with the Federal Government. Both judicial disclosures and tax filings are filed under oath. No. 2, the law requires the Judicial Conference, if there is any question about whether an improper judicial disclosure filing might have been willful, to refer the question of willfulness to the Attorney General for investigation. It is not under the law of the Judicial Conference's job to decide the question of willfulness; it is only to decide if there is a question of willfulness and then refer that to the Attorney General for investigation. So this can get serious fast, which brings us to Justice Thomas and his RV. When it comes to ethics requirements, there is no question about what the law required here. If part of Justice Thomas's debt was forgiven, he had to report it. The state of the facts based on the documents the Finance Committee has obtained and reviewed is that Justice Thomas never paid back a dollar of principal on $\1/4\ million loan and that the donor long ago stopped collecting even interest on that loan. So let's take a look at the law. Justice Thomas likely didn't have to report the loan itself. Justices don't need to report loans secured by a personal vehicle as long as the value of the loan isn't worth more than the vehicle itself. If Justice Thomas put up the RV as collateral for his loan and didn't obtain more money than the RV was worth, there was no need for him to disclose the loan. But all that changes if any part of the loan was forgiven later on. As the chairman has said, when you collect not $1 of principal and stop collecting interest, that sure looks like forgiveness of a loan. And a loan you don't pay back is a form of income. The law requires officials to disclose any income they receive outside of their government salaries, which makes sense if you are trying to expose or prevent corruption. Under the law, if you receive more than $200 of income from any one person in a year, you have to disclose that. Here are the regulations on financial disclosure. These are regs adopted pursuant to law, and they say that income ``includes but is not limited to'' income from ``discharge of indebtedness.'' And down here, it further says that you must report ``discharge of indebtedness.'' And if you go to the Tax Code--specifically 26 U.S. Code, section 21, which defines income for tax purposes, subsection 11(a) describes that ``income from discharge of indebtedness counts as income.'' Income from discharge of indebtedness--it is the identical language in the Tax Code and in the judicial reporting regulations. So a loan whose principal is not repaid is reportable income both under judicial ethics law and under tax law. And the law is crystal clear on this point. Even Justices are told what the law is on this point. So if you go to the ``Filing Instructions for Judicial Officers''--this is what the judge gets that tells them how to comply with their filing requirements regarding these disclosures. Here is what it tells them: Income . . . The disclosure of the gross amount and the type of income--dividends, rent, interest, or income from discharge of indebtedness--is required. Disclosure of income from discharge of indebtedness is required. There is nothing very subtle or complicated about that. It couldn't be more straightforward. If Justice Thomas failed to report a loan that was no longer being collected with a big balance still due and hence was, as a practical matter, forgiven, he likely violated these requirements. If he failed to file his taxes accordingly, he also likely violated our tax laws. Either of these--either the tax filing or the filing under the judicial disclosure rules--could amount to a false statement under the Criminal Code. In the first instance, as to the judicial disclosure filings, the law requires the Judicial Conference to determine if there is reason to believe that Justice Thomas's violation may have been willful, in which case it has a legal obligation to report him to the Attorney General for further investigation to settle the question of willfulness. I have asked the Judicial Conference to consider exactly these facts, and I hope they will do so. It looks like they are. As they do so, here are some things they should consider: First, this is not Justice Thomas's first brush with this law. A previous episode of yacht and jet travel gifts to him from Harlan Crow actually went to the Judicial Conference for investigation years ago. In my subcommittee on the Judiciary Committee, we held a hearing about this with a judge who served on the Judicial Conference at the time and could relate to us what transpired back then with the Crow to Thomas yacht and jet travel undisclosed gifts. That episode I would describe as a decent burial, but it is not clear now that, with Thomas back as a repeat offender with the same types of gifts from the same billionaire, that he will get the same courtesies from his fellow judges as he did in episode one of Crow to Thomas yacht and jet travel gifts. Indeed, the latest report from the Judicial Conference--they put out two reports a year. This is their report of proceedings for this past fall; i.e., this is their most recent report of proceedings, dated September 12 of last year. It has this rather Delphic sentence in it: The Committee was also updated on the status of the ongoing review of public written allegations of errors or omissions in a filer's financial disclosure reports that were referred to it since the Conference's last session. I don't know of any other judge or Justice who has received public written allegations of errors or omissions in that filer's financial disclosure reports other than Justice Thomas. So although there is no name mentioned here, it looks very much like the Thomas investigation is alive and well in the Judicial Conference. If they should determine that there is a question of willfulness in his failure to file, particularly to the extent that it may involve similar failures in tax filings, it is their legal obligation to present that question to the Attorney General. So it appears that the matter remains under active review, and I would conclude by saying that this is to be continued. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, let me get to the point at hand. I am back now for the 27th time to call attention to the rightwing billionaires' scheme to capture and control our Supreme Court and connect it to things that are going on at the Court right now. The billionaire elite that captured our Supreme Court wants to use it to attack Americans' ability--our ability as a people--through regulation, to protect our own health and safety, and the goal, mostly, is to benefit the big polluters in their midst. A word on regulation: As modern innovations have raised the standard of living in the United States and around the world and corporations have grown to international behemoths and billionaires have claimed for themselves a larger and larger share of the world's wealth, regulation has come to have a very important role. Big corporations' well-known motive to maximize profits, I should say, inevitably causes dangers to society. If you think of a big industrial plant that without oversight would leach chemical byproducts into the soil and water, poison wells, and spread cancer, you have got an idea of why regulation is needed. Over many decades, Congress created administrative Agencies to perform this task, staffed by scientists and other experts to use their expertise to manage and rein in these industrial dangers. The American system of regulation made our society safer and more prosperous. Period. As heavy equipment and dangerous chemicals came to mines and factories and construction sites, regulators implemented workplace safety standards. The meatpacking jungle led to sanitation requirements in production facilities. Automobile highway carnage produced seatbelts and airbags. Stockjobbing ``boiler rooms'' and insurance fraud provoked regulations to protect investors and insureds. What has been the result? Workplace illnesses, injuries, and deaths declined. Foodborne illnesses that used to kill thousands of people per year have been practically wiped out. Highways are no longer carnage; boilers rarely explode; and medications and stock offerings and insurance policies are all safer for consumers. And, by the way, in this environment of safety, corporate profits soared. The S&P 500 has returned an excess of 7,800 percent. Clean air and clean water and safe food and cars are actually good for business. Regulation is good. Regulation is a public good. But a gang of recalcitrant polluters is in the crew that captured the Supreme Court. And they want not only to pollute for free, they want to pollute without expert regulation. Well, even Republican Congresses wouldn't go for that so they turned to their captured, unaccountable Court. First, they got the Court to create a brandnew, so-called major questions doctrine, basically a too-big-to-regulate escape hatch for big polluters. And now they are using their captured Court to attack another precedent, the legal doctrine known as Chevron deference, which is pretty simple: Unless the law is clear, on technical matters courts defer to the Agency experts. This arrangement makes sense. Congress isn't suited and usually hasn't the expertise to make fine, technical determinations. So to prop up their attack on this commonsense principle, polluters have invented some fake arguments. A few years ago, these industries and their rightwing front groups began arguing that Chevron deference has a separation-of-powers problem. It may make all the sense in the world, but it has a separation-of-powers problem that courts must attend to because they say it gives unchecked and disproportionate power to the executive branch. The problem with that argument is that it is just not true. It is flatout false. Congress's legislative grant of administrative authority to Agencies comes with significant checks and balances. I am not going to go into all the details, but for starters, Agency heads are appointed by an elected President and confirmed by an elected Senate. And Agencies may not promulgate rules willy-nilly; they have to take public notice and comments. And Agency rules are subject to judicial review to make sure they are consistent with the rules and the Administrative Procedures Act and the public information and comment and the evidence. That helps make sure that regulations by law have to be both reasonable and consistent with the evidence and the facts. And in Congress, when all that is going on, we exercised direct oversight over these administrative Agencies. We do it through our oversight committees that have specific jurisdiction on specific Agencies. We do it through the appropriations process. Very often you see appropriations riders to control Agency behavior. And we do it through the expedited review of the Congressional Review Act, which we are seeing a lot of now in the Senate, and it allows for a very quick review by Congress of a challenged Agency rule. And, in fact, Congress has used that process to overturn Agency rules 20 times since 2001. The legal vehicle for the polluters' attack on Chevron comes in a case called Loper Bright Enterprises. As usual, where polluter interests are involved, this case brought out a rogue's gallery of what I would call the ``usual suspects''--front groups that have spent decades trying to dismantle the government's ability to regulate the big industries that secretly fund the front groups. They arrived at the captured Court at the end of a long process that began with industry-funded think tanks that reverse-engineered fringe ideas and legal theories that will serve rightwing donor interests. Then those fringe ideas and legal theories cooked up in the doctrine factories get taken into other think tanks and around captured trade associations and bounced around and put more and more into the public debate and, ultimately, once they have been credentialed by this echo chamber of front groups, they get pushed--these manufactured legal theories get pushed into courtrooms around the country, very often, through coordinated flotillas of secretly funded amicus briefs. There is a whole ecosystem of secretly funded corporate front groups that manage this whole process. It seems complicated, but it is less complicated than a piano and people know how to play pianos. Now, much of this is funded by the Koch Brothers--now one is deceased--but the Koch Industries, a political influence operation, which is a powerful, rightwing, dark money political network. Look at this Loper case. The lawyers who represent the petitioners in this case are working for free--supposedly--ostensibly for a public interest law firm called Cause of Action. This supposed public interest law firm discloses no donors and does not report any employees. As the New York Times discovered in this article, those lawyers actually work for Americans for Prosperity, the central battleship of the Koch Brothers' political front group armada. That armada, by the way, is very cozy with some of the far-right Justices of the Supreme Court. Indeed, ProPublica has reported that Justice Clarence Thomas has repeatedly flown out to serve as the celebrity draw for the Koch political operations fundraisers, including funding that landed at Americans for Prosperity. As is now standard practice in these cases, a flotilla of dark money front groups appeared as amici curiae--purporting to be independent but actually with enormous common funding and orchestration. These front groups are frequent flyers that spout anti-regulation arguments before the Supreme Court regularly, like, for instance, the major questions doctrine I mentioned earlier. From the creation of these doctrines in rightwing hothouses, through their amplification via rightwing front groups, to their insertion into legal arguments by rightwing amici, the common thread through the whole process is massive, secret funding from billionaire special interests. The amici supporting petitioners in the Loper case include 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 friends at the U.S. Chamber of Commerce. All of them have received hundreds of thousands, sometimes millions of dollars from these rightwing donors--from DonorsTrust, from Donors Capital Fund, from the Koch family foundations, from the Bradley Foundation, and in some cases, from good old ExxonMobil itself. These two--DonorsTrust and Donors Capital Fund--are donor-advised funds that allow ultrawealthy interests to direct funding anonymously to their pet projects. They are essentially identity laundering operations. The money comes in from the donor who wants to be secret. It lands at DonorsTrust. They in turn give it under their own name. The recipient gets it, and there is no record of who the true donor was. DonorsTrust has been described as the ``dark-money ATM of the right,'' and, with Donors Capital, it has laundered over a third of a trillion dollars--a third of a trillion dollars--into climate denial operations. Many of these same amici also received Koch Family Foundation funding and Bradley Foundation funding. Those are two other top-10 funders of climate denial. Fossil fuel corporations like ExxonMobil have also directly funded some of these amici. This is an operation. This is a part of a scheme. ExxonMobil has given significant money to the Cato Institute, the Competitive Enterprise Institute, the Landmark Legal Foundation, and the Mountain States Legal Foundation, as well as the Pacific Legal Foundation--and that is what we know. There could be other money that went through DonorsTrust, for instance, and into these groups and the ExxonMobil name was laundered off the funding. Some of these amici also received funding from groups affiliated with Leonard Leo. Leonard Leo has been the operative for the billionaires in the Court-capture operation. This is a chart of some--some--of the front groups that Leo coordinates. This question of capturing the Court in order to undermine public safety regulations? Trump White House Counsel Don McGahn actually called these two operations ``two sides of the same coin.'' We have it from inside the White House that these schemes are coordinated. The Loper amicus, Advancing American Freedom, received $1.5 million from Leonard Leo's Concord Fund--this group--between 2020 and 2021. Leo's Concord Fund operates under the fictitious name Judicial Crisis Network and, operating under that fictitious name, spent millions of dollars on Court capture--for instance, on advertisements for the rightwing nominees to flood the airwaves with TV ads supporting them. By the way, it also supports Republican State attorneys general, who then challenge Federal regulations the billionaires don't like before the sympathetic judges who were put on courts through this operation. Just to give you an idea, the Concord Fund and the 85 Fund are the two kind of base entities. They operate out of the same location with overlapping staff and funders and directors. I would argue that the corporate veil between the two could be pierced with a banana. The operation of these two entities--a conjoined 501(c)(3) and 501(c)4--then has these different legs. Each one of these six legs is a fictitious name--a fictitious name filed under Virginia corporate law-- through which these entities operate. It is not a separate thing. It is just a fictitious name for--in this case, Judicial Education Project for the 85 Fund. So these eight organizations are, in effect, the same organization, and out of it, money gets pumped up to these entities, which are Leonard Leo's means of extracting wealth for himself for his services provided in making sure that this piece of his operation can go forward and help capture the Court. So that is the background of all of this. So when the Judicial Crisis Network shows up here, it is a pretty significant tell that there is more going on here than just independent organizations bringing their views to the Supreme Court. It is not enough to flood the Supreme Court with this fake onslaught of coordinated amici curiae; there has also been a coordinated editorial campaign. In fact, it has been hard to miss the editorial campaign launched to create favorable ideological terrain for the captured Court's Justices to end Chevron deference. The rightwing apparatus has cranked out op-eds in just about every major publication across the country in the past week. It has been a surge of propaganda pushing that falsehood about unaccountable bureaucrats. One particularly odious editorial appeared in the pro-polluter Wall Street Journal editorial page. I refer to it just generally as ``the polluter page'' because that is its reason for being. It was written in the Wall Street Journal editorial page by Mr. David Rivkin. Mr. Rivkin is described as follows by the Wall Street Journal: Mr. Rivkin served at the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. But he has done so much more. For instance, he is Leonard Leo's personal lawyer. This guy, with what my office refers to as the ``Leo bug'' of phony front groups, has this guy, who authored the Wall Street Journal editorial, as his personal lawyer. By the way, Rivkin is the same guy who several months back gave Justice Alito a very friendly interview right in this Wall Street Journal editorial page to justify Alito's undisclosed travel on a private jet on a freebie trip accompanied by--oh--Leonard Leo, no less. He is the same guy who, in a current case before the Supreme Court, before Alito, who has not recused himself, is attempting to secure an enormous tax giveaway for billionaires. Rivkin's cosigner, Mr. Grossman, Andrew Grossman, is described as ``a senior legal fellow at the Buckeye Institute and an adjunct scholar at the Cato Institute.'' OK, that is a pretty fair description. By the way, if you go back here--there is the Buckeye Institute, and there is the Cato Institute. They have already briefed the case. The lawyer who writes the brief is now just pumping his own amicus brief in the Wall Street Journal editorial page with the lawyer for Leonard Leo, who did Justice Alito the big favor of trying to head off a Senate investigation into Alito's travels. So it is a pretty rich mix. If you look at all of this, what you discover is that this whole scheme is actually pulled off by a very small number of people on the billionaires' payroll. They are very busy constantly switching hats and running multiple front groups out of the same enterprise so that it looks like there is more, filing multiple briefs in a Supreme Court case so it looks like there is more, but it is actually a pretty small, billionaire-funded operation. It has just been diabolically effective, and it has begun to pay off for the billionaires. In West Virginia v. EPA, the Supreme Court hobbled Agency authority to regulate for our public health and safety by adopting what they called the major questions doctrine--the same one I mentioned earlier-- and that in turn has prompted an onslaught of challenges to administrative regulatory authority from which the administrative law legal landscape is still reeling. There is enormous upheaval from that novel doctrine imported by the billionaire-selected Justices of the Supreme Court into American law. It would actually add insult to that injury for the Court to break even more precedent by attacking Chevron. Frankly, they may not really even need to because the major questions doctrine is such a powerful weapon in their hands against administrative safety regulation that they may not actually need to do much damage to Chevron. They have a weapon. But it looks from the argument like the Court is actually poised to attack Chevron deference. If it does, it not only will add to the dangers to Americans' health and safety, against which regulation protects, but it will also move the unaccountable Supreme Court further into the policymaking function properly left under the American system of government to the elected political branches. In short, it is a power grab by the unelected judicial branch at the behest of and for the benefit of polluter billionaires, and they have done this on the specious grounds--the false grounds--that these administrative Agencies are unaccountable. Well, even if that claim were true, it is hardly solved by moving the locus of decision to the least accountable part of the government--to the U.S. Supreme Court. If your problem is that decisions are being made in unaccountable fashion by bureaucrats, then moving it to even less accountable judges is not a solution to the problem. But the fact of the matter is that they are wrong about the bureaucrats because of the CRA, because of the Administrative Procedures Act, because of the appropriations process, because of congressional oversight, and because of executive appointment to the control of these Agencies. It just ain't so, but it is a lie that is repeated and repeated and repeated and begins to be echoed by the Justices of the captured Court. To sum up, by all appearances, a Koch operation-funded legal theory supported by Koch operation-funded amici is about to be deployed by Koch operation-funded lawyers to convince Koch operation-funded Justices to achieve a longstanding goal of Koch industries: the ability to pollute more easily and more cheaply. To twist American law through those techniques for that purpose is a deeply degraded thing. It would be a tragedy for the American people. But do you know what? It is the scheme in a nutshell. It is why all the effort was put together--the hundreds of millions of dollars were spent--to capture and control the U.S. Supreme Court for the benefit of a small cabal of creepy billionaires. To be continued. I yield the floor. I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I am here today for the 26th time to detail the special interest billionaire-funded scheme that has overrun the U.S. Supreme Court. This evening, I would like to discuss some things about Republican Judiciary Committee members' performance in the Senate Judiciary Committee recently as we voted on authorizing subpoenas for billionaire Harlan Crow, some of his holding companies, and the court-fixer, Leonard Leo. At the end of last month, we voted, through the authorization for Chairman Durbin, to issue subpoenas, and it was greeted with a barrage of talk about a whole variety of things. But one was how Democrats were destroying the Judiciary Committee. We were absolutely totally going to destroy the Judiciary Committee. It was on us that the Judiciary Committee was going to be destroyed. Well, all the talk about destroying the Senate Judiciary Committee came, rather, in the nature of a threat. It was actually more like, if we did something that we are perfectly entitled to do to pursue subpoenas after being persistently obstructed, then Republicans would destroy the committee, would undo any good will or any bipartisanship or any collegial effort. Somehow that Republican threat to destroy the committee morphed into Democrats destroying the committee. But that doesn't make any sense. If you think of a kidnapper shooting his hostage and then blaming the family for the murder of the hostage because the family hadn't yielded to the kidnapper's demands, that is kind of backward logic. Also backward logic is the argument that the subpoenas were an effort to destroy not the committee but the Supreme Court. The subpoenas would destroy or damage the Supreme Court. OK. Let's think about that for a minute. There is only one possible way that it could be true, logically, that these subpoenas could do damage to the Supreme Court--only one--and that is if the information the subpoenas would disclose is so damaging that it would damage or destroy the Court. Subpoenas that turned up nothing would be no harm, no foul. If there is nothing evil to see in the information the subpoenas are pursuing, there is no harm. The necessary logical predicate of the destroy-the-Court argument made by our colleagues is that subpoenas would reveal that something truly horrible happened at the Court that now needs to be covered up--covered up. But that is not how ``appearance of impropriety'' works. Justices of the Supreme Court are supposed to avoid doing things that might create even the appearance of impropriety. The appearance-of-impropriety issue is not that you do impropriety and then go out and cover up its appearance. We also heard a lot that day about the problem of subpoenaing ``private citizens,'' as if that were something unusual. If that is a problem, it was a very new problem because just days before, the committee had subpoenaed private citizens in the tech sector on a bipartisan basis without anyone's objection. As always, our Republican friends persisted in the argument that this committee has no business looking at Supreme Court gift disclosures. That argument was, is, and will always be a phony. The Judiciary Committee has every right to oversee how an Agency that Congress created--the Judicial Conference--is implementing a law that Congress passed, the judicial disclosure law. It is within the jurisdiction of the committee; it is a congressionally established body; and it is a statute passed by Congress. If Congress can't oversee how Agencies it creates oversee laws it passes, there is no oversight left. Obviously, understanding what gifts went undisclosed is essential to that inquiry. We then heard that you can't have subpoenas because a related bill is out of the committee. But Congress has every right to oversight and subpoenas at any stage in legislation--and even at no stage in legislation. Because the bill in question has not passed here in the Senate--it has come to the Senate floor, but it has not passed in the Senate--and because the Republicans not only stonewalled our investigation but threatened very plainly a partisan blockade of the bill here on the floor--``not a single Republican vote'' was, I think, what they threatened--that makes it all the more obvious why continuing to build the factual case for reform is appropriate. There is precisely zero basis for the theory that a Senate committee can't look into a subject of legislation once some related legislation is out of committee. Preparing for a successful floor vote on that bill is only one obvious reason why that theory is painfully wrong. If you look at all of that noise and fuss that was put up, it is hard not to deduce that maybe something else is going on here. Here is my theory of the case, as I have said in previous speeches: Very powerful rightwing billionaires spent years and hundreds of millions of dollars on a scheme to influence--and even control--the Supreme Court. Those very powerful rightwing billionaires are also massive funders of Republican politics, including Republican Senate politics. The problem is that those very powerful rightwing billionaires got sloppy, and their gift program to take care of certain Supreme Court Justices started breaking gift and disclosure rules--very likely tax rules, as well, with a few of the amenable Supreme Court Justices whom they were rewarding with lavish entertainments. What we already know about that gift program is bad enough. How far the billionaires' hands are in the cookie jar and how coordinated and orchestrated this secret gift program was is information that they desperately want to suppress. So they do what megadonors do and pressure Members of Congress to do what they want, and, in this case, it was help the billionaires suppress the truth of what went down here. I will close by observing that the argument that Democrats are behaving improperly in our work to clean up the mess at the Supreme Court is an argument that has some very powerful rebuttals. The first rebuttal comes from the billionaires who are actually cooperating with our investigation. Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks as exhibits several letters reflecting that cooperation: the first, dated July 25, 2023, to Chairman Durbin and Senator Whitehouse; the second, dated Octobers 18, 2023, to Chairman Durbin and Senator Whitehouse; the third, dated October 31, 2023, to Senators Durbin and Whitehouse; the fourth, dated November 6, 2023, to Senators Durbin and Whitehouse; and the fifth, dated November 7, 2023, Dear Committee. I would also note that another--yet another wealthy donor, not one of these in the letters--yet another wealthy donor has cooperated with the Finance Committee's investigation into the tax ramifications of all these secret gifts and what was disclosed and what was not disclosed. And that donor revealed to the Finance Committee compelling evidence that he collected only interest--only interest--on a quarter-million- dollar-plus loan to Justice Thomas; that the donor never collected any--any--principal payment; and that he ultimately stopped collecting either interest or principal on that quarter-million-dollar-plus loan. So the cooperation of people with our investigations rebut the argument that we have no business. The second rebuttal comes, actually, from within the Judiciary itself because this is not the only avenue we are pursuing to get to the bottom of the mess at the Supreme Court. When I got the Judicial Conference to review the Scalia trick, which was to have intermediaries solicit dozens of personal invitations from hunting resort owners, whom Scalia had often never even met, and then failed to disclose the free vacations because, in his view, the personal invitation made it personal hospitality, within the terms of the disclosure statute--well, the members of the Judicial Conference-- the chief judges of the circuits and of district courts who together comprised the Judicial Conference--those chief judges blew that trick to smithereens. They didn't criticize me for being a bad Senator asking bad questions and going places I shouldn't be going. They dropped the hammer on the Scalia trick. They put a dead finish end to it. And later, when I got the Judicial Conference to look at the billionaire-funded flotillas of amicus briefs that they send in through phony front groups to tell the Justices what it is that they want them to do in cases and the phony front groups were not disclosing their true funders or their true interconnections or their true commonalities, again, this array of very distinguished chief judges didn't look and say: Well, here is a Senator on an improper rampage. We can't have any of this. No. They announced that they were revisiting the amicus brief disclosure rule because it needed fixing, and they are in the process of finalizing that right now. So two for two. When questions related to this investigation have been taken up by the Judicial Conference, they have actually been handled perfectly consistent with the thrust and tenor of our investigation. The third rebuttal that you will have to trust me on, I am afraid, is that over and over, I have heard from Federal judges that this investigation is important; that we are doing good work; and that we should keep the pressure on and don't let up and get to the bottom of this mess. I don't mean my home State judges, either. From all around the country, I am getting messages of support from judges appointed by Democratic and Republican Presidents that what has happened at the Court is a disgrace and that I should keep at it; that the Judiciary Committee should keep at it for the good and the health of the judiciary itself. By comparison, when you look at the frantic complaining about our work, it mostly comes from a small handful of dark money mouthpieces actually linked to the Court-capture scheme. Obviously, Mr. Rivkin, who is Leonard Leo's lawyer, is out to blockade our investigation. So there is one. He represents Leonard Leo against our investigation, and he summoned Justice Alito to offer an opinion to his and Leonard Leo's benefit in the pages of the Wall Street Journal editorial page. Another voice is Leonard Leo's painting pal--you may remember this painting that was done at Harlan Crowe's Adirondack estate with billionaire Crowe, Justice Thomas, and Leonard Leo, the Court fixer. Well, also there is painting pal Mark Paoletta. He is another persistent voice; and he couldn't be more in the scheme than that painting shows. Also, Carrie Severino turns up. She is Leonard Leo's dark money sidekick-successor at the dark money funded Federalist Society and the dark money funded fictitious name group, Judicial Crisis Network. And then, of course, there is the Wall Street Journal editorial page whose people have received a million dollars in personal cash from the dark money Bradley Foundation at the middle of that dark money amicus flotilla. At attorney Rivkin's request that I mentioned, Justice Alito even provided a cameo performance in the Wall Street Journal editorial page that defended the position of his friend Leonard Leo in plain violation of multiple judicial ethics guidelines. All that Rivkin-Leo-Alito stunt--Wall Street Journal editorial page stunt--needed was Paoletta and Severino to make it a clean sweep of all the major mouthpieces. Steering away from troublesome facts is a constant theme in the mess we are trying to dig into over at the Court. In the January 6 and Arizona cases, what Justice Thomas knew about his wife's insurrection activities and when he knew it is the salient question about recusal. He has never been asked. What made Justice Alito say that in that Wall Street Journal editorial, attorney Rivkin was acting just as an interviewer and not as Leonard Leo's lawyer, even though Rivkin was under contract to Leonard Leo as his lawyer at that time? That question has never been asked. What became of Thomas' quarter-million-dollar loan, and why was it not reported? That question has never been asked. What made Justice Alito think that he should suddenly start answering legal questions likely to come before the Court in the pages of the Wall Street Journal editorial page, despite every Justice in their confirmation hearing saying: That is inappropriate? That question has never been asked. What made Thomas think the Judicial Conference action that I described--blowing the Scalia trick to smithereens--was a change in the rules and not a clarification of the rules? That question has never been asked. But it is a question that matters because the Judicial Conference actually called it a clarification and Thomas' lawyers treated it as a change. And the difference is this: If it is a change in the law, you don't have to go back and clean up your prior incomplete and false filings. If it is a clarification, you have to go back and clean up your prior defective filings. So to say that this was a change despite the fact the Judicial Conference said it was a clarification is a very significant legal leap; and no justification for it was offered at the time or has been proposed since. In all of these matters, the common theme is that factfinding--the very basis of due process--factfinding is not performed around the Supreme Court Justices. Factfinding, despite being the essence of due process, this Court avoids like the plague. All of this--the behavior of our friends in the committee, the cooperation and support from billionaires and judges and others, the mischief of not answering basic fact questions--all of it signals that there is a lot going on here; that there is a lot to investigate; and that our investigation must and will continue. To be continued.