Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I am here on the floor to ask for some courtesy for a pair of nominees. These are nominees to the Court of Federal Claims, which is the court to which citizens can come with claims against the Federal Government. In the Court of Federal Claims, the Federal Government is the defendant, and these two individuals are in an enormous traffic jam that our colleagues have created for nominees. At the moment, I am told we have 159 nominees, out of committee, on the Executive Calendar, backed up on the Senate floor--159. I am on the Judiciary Committee. These two are judges. They are for the Court of Federal Claims. This is not a partisan thing; this is about letting the Court of Federal Claims do its work. Both of them are extremely well qualified; neither is partisan. Both were voice voted out of the Judiciary Committee, and I would hope, just as a matter of courtesy and common decency, we could agree tonight to move them forward. Now, one of them is named Armando Bonilla. He served as the counsel to the Marshals Service. He served as counsel to the Deputy Attorney General. He served, actually, as Associate Deputy Attorney General. In the Department of Justice it is not an easy thing to move up from being counsel to the Marshals Service to being counsel to the DAG, to being Associate DAG. So that is a pretty impressive record. Before that, as a trial attorney, he had served in the Public Integrity Section of the Department, in the asset forfeiture and money laundering section, bringing those cases, and in the civil side in the Commercial Litigation Division. So he has the trial qualifications you would want. He has the experience from the government side that you would want. He got a voice vote out of committee. And if that is not enough, he is a graduate from West Virginia University. So he is, I think, a very well-rounded individual who would serve well in the Court of Federal Claims. Also, I will be asking to confirm Carolyn Lerner, who brings her own superb qualifications to this position as well. She is, right now, the chief circuit mediator for the Court of Appeals for the DC Circuit. So she deals with litigation conflicts all the time. She obviously is viewed with considerable regard by the court who made her their chief circuit mediator. She served for many years in private practice. So she would be very familiar with the private practice of individuals who come before the Court of Federal Claims. Again, private person versus Federal Government is what that court's business is. And she even taught law. So Carolyn Lerner and Armando Bonilla are both very well qualified, and both came out of the Judiciary Committee with voice votes, which means they both had bipartisan support, and this is an important court to proceed with. Now, what has happened here and the reason we are now up to 159 backed-up nominees for executive and judicial positions is that our colleagues on the other side are insisting on cloture for essentially almost every individual who comes through, and that eats up time on the Senate floor and slows things down and creates a traffic jam. It is like you are driving on Highway 95 and you pull into the middle lane and drive 25 miles an hour. You are going to jam up traffic behind you. And that is what our friends are doing. They are jamming up traffic. I think there are certain Members of the other party who would like to see the Biden administration not be able to get his team in place just for partisan reasons. So when Donald Trump came in, in his first year, he was obviously not popular with us on our side, and he had some pretty appalling appointments. But even in that very hostile environment, the Republican leader only had to file cloture for 65 appointees--65 in that first year. In President Biden's year, we are already at 127. So the cloture rate has doubled from even that very difficult, challenging year when Trump first came in. And I see my friend from Alaska here. So I will just review the bidding. We have 159 nominees backed up on the Senate floor who are all out of committee, all ready for votes, many of whom are coming out of committee by voice votes with big bipartisan majorities. Two of them are the individuals whom I am going to be asking unanimous consent to confirm tonight, Armando Bonilla and Carolyn Lerner. My friend from Alaska served in the Department of Justice. So he knows that it ain't nothing to be counsel to the Marshals Service and then counsel for the DAG and then Associate DAG. That is a really impressive climb through the top ranks of the Department--and to have served as a trial attorney in the Public Integrity Section and in the asset forfeiture and money laundering section and in the civil side in complex commercial litigation. That is a very impressive resume. That is ditto for Ms. Lerner, who has been chosen to be the chief circuit mediator for the DC Circuit Court of Appeals. That is a pretty impressive credential all on its own. So what I would like to do in order to get these two through the traffic jam and on to the Court of Federal Claims, where their presence is needed, is to ask unanimous consent that the Senate proceed to executive session to consider their nominations, which are Executive Calendar Nos. 489 and 490; and, further, that the nominations be confirmed, that the motions to reconsider be considered made and laid upon the table with no intervening action or debate; that no further motions be in order to the nominations; that any related statements be printed in the Record; that the President be immediately notified of the Senate's action; and that the Senate then resume legislative session.

Mr. WHITEHOUSE. In the spirit of ``what goes around comes around,'' let me just say that the First Circuit is a good deal smaller than the Ninth Circuit. My State of Rhode Island is in the First Circuit. We didn't have many vacancies during the Trump administration on the First Circuit, and the only one we had was not filled. But I am not aware of any Member on our side being offered to meet with any Trump judicial nominee at the Circuit Court level. And indeed--indeed--those of us who are on the Judiciary Committee didn't even get our 5 or 7 minutes of time in the hearing with Trump Circuit Court nominees because the Trump administration worked out some kind of a deal that their nominees could be put on the same panel--something that had only been done before with the agreement of both parties. So they would bring in their Circuit Court nominees, and you still got your 5 minutes or your 7 minutes. But now there are two or three on the panel. You get like 1 minute each. So I just have to say that I like my friend from Alaska and we do work well together. But when I couldn't get 5 or 7 minutes in the committee in the hearing with a Circuit Court nominee, it is hard for me to feel a great sense of outrage that somebody not on the committee doesn't get a special private meeting with judges. We never got special private meetings with judges. We didn't even get our time with the judges in the hearing because they sandwiched a bunch of them on the same panel in our same 5 to 7 minutes. So what I would like to do is to propose, since the objection has been made to confirming them tonight, that at least we might consider moving through the cloture step so that a vote can be scheduled and everybody can have their vote one way or the other. So my first unanimous consent request would have confirmed them, and a call could have gone out to them and to their families tonight saying: The holds are off. Your life is back in order. You can go to the job you have been nominated for. And all would have been well. There has been an objection to that. So what I would like to do is simply ask that they be allowed to tee up for a vote when scheduled, without having to pursue the cloture path. So I ask unanimous consent that, notwithstanding rule XXII, if applicable, at a time to be determined by the majority leader in consultation with the Republican leader--in consultation with the Republican leader--the Senate proceed to executive session to consider the following nominations: Again, Executive Calendar Nos. 489 and 490; and that there be 10 minutes of debate, equally divided in the usual form, on the nominations, en bloc; that upon the use or yielding back of time, the Senate proceed to vote without intervening action or debate on the nominations in the order listed; that if the nominations are confirmed, the motions to reconsider be considered made and laid upon the table with no intervening action or debate; that no further motions be in order regarding the nominations; and that the President be immediately notified of the Senate's action. Again, this would not confirm them tonight. Their families will not get this call. But they are freed from our little Executive Calendar traffic jam. But it would at least put them on a pathway toward confirmation.

Mr. WHITEHOUSE. Mr. President, I think we have concluded this matter for the evening, and I am sorry that it has ended this way because Mr. Bonilla and Ms. Lerner are essentially collateral damage in a fight that does not involve the Court of Federal Claims at all. This involves a dispute between the Senator from Alaska and the White House, whom I do not direct and whom I do not speak for. Instead of keeping it within the confines of the Ninth Circuit, it has now spilled over to the Court of Federal Claims, and these two completely unrelated individuals are continuing to have their lives interfered with by being kept in the traffic jam for a principle that, in my view, was never followed in the previous administration. I mean, for Pete's sake, if they were not going to even let us have our official time with a circuit court judge, the idea that we were going to get private meetings is, I think, imaginative in the extreme. I just regret that it has come to this pass. I regret that we are at 159 obstructed nominees backed up. I regret that we have been forced to file cloture twice as much as that first group of Trump's nominees, in his first year--and there were some real beauties there, I have got to tell you. With that, I yield the floor. I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, it is a pleasure, and I appreciate my friend, Senator Blunt. I am here today to rise for the 10th time to talk about the rightwing scheme to capture our Supreme Court. As the Presiding Officer knows, I have delivered a lot of speeches on the Senate floor, and a majority of them--279 of them, to be precise-- addressed climate change. These were my ``Time to Wake Up'' speeches, many of which focused on the network of phony front groups and trade associations used by the fossil fuel industry to block any meaningful climate legislation. That vast web of climate denial and climate obstruction is one of the main reasons that we are in the climate crisis we face today. I am here today to report that there is common technique behind that smelly climate denial operation and the rightwing donor operation to capture the Court. They both rely on massive amounts of dark money. They both rely on a small number of ultrawealthy donors who supply that dark money. And they both rely on an armada of front groups and phony corporate entities, funded by those big donors, to hide their hands. At this point, it is, actually, depressingly, familiar. But it is worse than just common technique. It is the same entities: the Koch operation, Americans for Prosperity, DonorsTrust, the Bradley Foundation, the Scaife Foundation, the Competitive Enterprise Institute, the U.S. Chamber of Commerce. The list goes on and on and on. These are the exact same players on both sides of the operation--on the climate-denying web and on the Court-capturing scheme. My colleagues and I showed in a number of Web of Denial climate speeches how a few ultrawealthy, rightwing foundations, corporate trade groups, and so-called donor-advised funds supply the bulk of the dark money for modern-day climate denial. Big oil companies used to do that directly, but they got burned and learned that it is bad for their public image, and I suspect they are hiding now behind those anonymizing entities and trade groups. The big funding guns included the Koch network; the Lynde and Harry Bradley Foundation; the Searle Freedom Trust; the Sarah Scaife Foundation; Donors Capital; and DonorsTrust, which has been called the rightwing's ``dark money ATM.'' This is the Web of Denial graphic that we used in many of those Web of Denial speeches, and you will see these groups turning up over and over again. They are central in the web of climate denial. Now, if you look at the big funders behind the scheme to capture the Court, you will see this--in my last scheme speech, I talked about the flotillas of amici curiae--or ``friends of the court''--who come in and orchestrate phalanxes to file briefs for the rightwing in cases of significance to the scheme's big donors. Well, it turns out that those funders also inhabit the web of denial. This is an appendix that I filed in the case of Seila Law v. Consumer Financial Protection Bureau--a case that was the rightwing's shot at weakening a consumer watchdog agency they hate. This appendix--a first of its kind in the Supreme Court, which was attached to my amicus brief--looked at some of the other amici who had filed briefs and cross-referenced where their funding had come from. My point then was that the Court was not told that there was this huge overlap of funding. Each brief came in as if it were independent rather than part of an orchestrated cascade. So nearly every one of these groups is part of the web of denial: DonorsTrust, Donors Capital, the Charles Koch Foundation, the Sarah Scaife Foundation, the Bradley Foundation, the Searle Foundation. But the overlay isn't just with the phony amicus flotillas that are orchestrated up at the Supreme Court; it is right in the cases themselves. Take the notorious anti-labor cases of Friedrichs and Janus. According to a trove of documents uncovered in 2016, legal groups funded by the Bradley Foundation brought those cases. They weren't just amici filing briefs; they were the litigating law group in those cases. The law group went out and found the plaintiffs-- plaintiffs of convenience, and they paid the plaintiffs' legal expenses. Those same donors, Bradley has shown in this, funded that whole boatload of amici who came in to support their also-funded group that was bringing the case on behalf of a nominal plaintiff. By the way, they funded a flotilla of amici in Janus. Seventeen Supreme Court amicus briefs came from groups funded by DonorsTrust, Donors Capital, and Bradley. The front groups in those labor cases actually played a little bit of switcheroo amongst themselves. Think of the pea-and-shell game. The group that brought the case in Friedrichs became an amicus supporting the plaintiff in Janus. The group that brought the case in Janus had been an amicus supporting the plaintiff in Friedrichs. All of those groups--the ones that brought the two cases and the groups that chimed in as amici--were funded by the same organizations. It is a little bit like that pea-and-shell game except, if you know the parties, it is being played with transparent shells; but for some reason, the Court is incapable of noticing this scheme that is being pulled in plain view, in their presence. Now, some front groups are invented shells--purpose built--just to hide whoever is behind them. Others are preexisting, captured, and co- opted. The key common characteristic, whether invented or captured and co-opted, is that they got to hide the donors. The U.S. Chamber of Commerce is the easy example of a captured and co-opted group. According to the watchdog group InfluenceMap, the Chamber is one of the biggest climate obstructors in Washington. Why? The Chamber has lots of members who don't support climate obstruction, but someone--someone--gave the Chamber enough money to become a worst climate obstructor. And guess what. The Chamber is also a major player in the scheme. It is the biggest filer of scheme amicus briefs; it campaigned hard for all three of Trump's dark money-chosen Supreme Court Justices; and way back, it commissioned the Lewis Powell memo that launched the entire scheme. Other major front groups serving both the web and the scheme include the Heritage Foundation, the Cato Institute, and the Competitive Enterprise. Again, the common thread? They all hide the donors so they can provide that vital screening, anonymizing function, which is key to the donors because they have to hide their identities and their motives in order to do their dark work. On the scheme side, each one of these groups gets gobs of scheme dark money, helps hatch hot-house legal theories to present to scheme Justices, helps locate plaintiffs of convenience to bring cases for and/or joins the orchestrated flotillas of scheme amicus briefs. You see the same players over and over and over again, and how the Court manages not to notice or be curious is a mystery. On the web side, each is also a central node in the web of denial. Here, for instance, is the Lynde and Harry Bradley Foundation. Here is the Donors Trust, Donors Capital. Here is Koch-affiliated foundations. Here is Searle Freedom Trust. Here is the Americans for Prosperity Foundation. These groups pretty notoriously represent the interests of Big Business and rightwing donors, so you at least know that much, if not the specific identity of who is funding the brief. But some of the web-scheme overlay gets a little bit harder to unravel, so let's drill into one: the Independent Women's Forum. This group was founded by rightwing donors in the very early days of the scheme to prop up the troubled nomination of Justice Thomas. It has accepted millions of dollars from a who's who of scheme and web-of- denial donors--Bradley, Scaife, Koch, Donors Trust. Its stated mission is to ``improve the lives of Americans by increasing the number of women who value free markets and personal liberty,'' but its real mission is to pop up anytime its dark money donors want to trot out a front group purporting to represent women. In practice, that means they pop up everywhere. They popped up in a pending Second Amendment case before the Court. They popped up in the Americans for Prosperity Foundation case that granted a constitutional right to dark money, signed off on by the dark money Justices. They popped up in the Little Sisters of the Poor contraception case. They popped up in a challenge to the EPA's authority to regulate greenhouse gases. The Independent Women's Forum's work in that EPA case brings the overlay between the web and the scheme into focus. In 2016, the forum joined the dark money amicus flotilla asking the Supreme Court to strike down the EPA's Clean Power Plan, along with other web-scheme front groups like the Competitive Enterprise Institute, the Texas Public Policy Institute, and other groups opposing the EPA. These parties asked the Robert Court to stop the Clean Power Plan before it went into effect. Just days before Antonin Scalia died and their 5-to-4 majority evaporated, the Republican Justices obliged. This was ``shadow docket'' work, for those of you following the Texas abortion case ``shadow docket'' fiasco. In the EPA case, for the first time, the Court stepped in to stay a regulation before it went into effect and before the lower court had a chance to weigh in. By the way, it was a purely partisan decision, with all the Republicans behind it and none of the other Justices. Fast-forward to today. The Trump administration replaced the Clean Power Plan in 2018 with a Trump do-nothing, polluter-friendly rule. When the Biden administration came in, it completely abandoned the Trump do-nothing, polluter-friendly rule, so right now, there is actually no regulation to challenge. But the scheme has replenished its dark money Court and supercharged it with a sixth Justice. They are out to disable what they call the administrative state for the sake of their big donors, so they sued again, backed by familiar organizations--the Competitive Enterprise Institute, the Texas Public Policy Institute, and other web-scheme groups--to ask, as they put it in their brief, that the Court ``finish what it started when it stayed the [Clean Power Plan].'' There is no regulation to challenge. Yet the Republicans on the Court took the case--so much for the ``case or controversy'' principle of the Constitution. Now the Court, I guess, is going to make decisions based on what might happen. Where I come from, that is called an advisory opinion, which our Court is not supposed to do under the separation of powers. But the Federalist Society six on the Court are out for big game. The prize is to bring down the ``regulatory state'' altogether, and where better than where it most helps the fossil fuel industry--the industry lurking behind this web of denial and likely also working behind the dark money that put the last Justices on the Court and likely also lurking behind the dark money millions that fund the Republican election groups. This Clean Power Plan challenge opens an avenue for scheme-appointed Justices to delight the donors behind both the scheme and the web. In the short term, it would hobble the EPA's ability to combat climate change--something very much sought by vested interests in the fossil fuel industry. Over the long term, it would accomplish rightwing donors' goal of kneecapping Federal Agency power across the board. For Donors Trust, the Chamber of Commerce, the Independent Women's Forum, and dozens of other groups that link the web and the scheme, winning cases like this one means big wins for their big secret donors. To go back to my early speeches about the scheme, they are following Lewis Powell's advice years ago to seize what he called the ``most important instrument for social, economic, and political change''--the Federal judiciary--and to control it with what he called ``an activist- minded Supreme Court.'' The scheme has captured the Court. The scheme's captured Court will deliver for the web. It is the same donors and organizations behind both, and it has got to be cleaned up because this is not how courts are supposed to work. To be continued. I yield the floor. I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I just want to thank my colleague Senator Cotton and my chairman Senator Durbin for the way in which that resolved itself. For a minute, we actually feel like a Senate here.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise today to honor an accomplished policymaker, a protector of environmental and public health, and my State representative: Lauren Carson. Representative Carson represents Rhode Island's 75th district and has a long history of working on issues related to sea level rise, reducing waste, and protecting the health and safety of Rhode Islanders. Representative Carson holds a bachelor's degree from Ramapo College and two master's degrees from the University of Rhode Island. She is a businessowner and an environmental advocate who worked for several years with Clean Water Action. Representative Carson also served her community through several organizations, including the advisory board of the Alliance for a Livable Newport, the Newport Energy and Environment Commission, the Rhode Island Green Infrastructure Coalition, and the Environmental Council of Rhode Island. In 2014, Representative Carson successfully ran for a seat in the State legislature. At the statehouse, she has moved policy forward to protect Rhode Island's environment. Among many other accomplishments, Ms. Carson created and led a commission on the effects of rising seas. She introduced a bill that created a uniform statewide process for permitting solar panel installations. She cosponsored legislation to phase out polluting cesspools. Earlier this year, she was appointed as, deputy majority leader, a role which she used to steward the 2021 Act on Climate into law, setting statewide net-zero goals for 2050 across all sectors. She coleads the Aquidneck Island Climate Caucus to give voice to the importance of preventing and preparing for a warmer world and focus the island's efforts on sea level rise. I am glad to recognize Representative Carson's dedicated service and to share my appreciation for all of her contributions to our State and our environment.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise today to honor Janet Coit, one of Rhode Island's most respected environmental advocates. Ms. Coit is the newly appointed Assistant Administrator for the National Oceanic and Atmospheric Administration's National Marine Fisheries Service. She joined NOAA after a decade of committed service leading the Rhode Island Department of Environmental Management under three Governors. After graduating from Dartmouth College and Stanford Law School, where Ms. Coit was a member of the Environmental Law Journal, she served as counsel to the U.S. Senate Committee on the Environment and Public Works. She went on to serve as counsel and environmental coordinator for the late Senator John Chafee and, subsequently, his son Senator Lincoln Chafee. Ms. Coit then returned to Rhode Island and began a decade of work as the State director for the Nature Conservancy, where she oversaw some of the State's largest land conservation projects. Ms. Coit went on to be appointed by Governor Lincoln Chafee to serve as director of the Rhode Island Department of Environmental Management. Governors Raimondo and McKee wisely kept her in that position. Her legacy at DEM includes streamlined permitting processes, new opportunities for families to connect with nature, and improved customer service. As the longest serving chief executive in DEM's history, she focused on public parks, promoting local food systems, Rhode Island's fishing and shellfish industries, and climate solutions. She seized opportunities to coordinate regional efforts, including addressing equity and justice issues, improving water quality, managing PFAS contamination, and fighting the climate crisis. In this capacity, she also served as chair of the Rhode Island Executive Climate Change Coordinating Council and on the board of directors for the Regional Greenhouse Gas Initiative. She has received numerous awards for her outstanding contributions at DEM. In June, the Biden-Harris administration appointed Ms. Coit to lead NOAA Fisheries, where she oversees fisheries management, protected species, and fisheries habitat conservation. She also serves as the Acting Assistant Secretary of Commerce for Oceans and Atmosphere and Deputy Administrator, supporting and managing NOAA's coastal and marine programs. We are fortunate that exceptional people like Ms. Coit choose to dedicate their careers to public service. I am proud to recognize her today and thank her for her many contributions to the State of Rhode Island and the Nation.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise today to honor one of Rhode Island's most respected oceans and environmental policymakers, who happens to also be my State Senator, Dawn Euer. All of us whom have worked with Senator Euer recognize her deep commitment to Rhode Island and to safeguarding the future of the planet by fighting the climate crisis. Senator Euer earned a law degree from Roger Williams University. While in law school, she served as a legal intern in my office, where I saw firsthand her dedication to public service and to using the law to better the lives of others. Senator Euer began her political career as an activist and organizer. She was instrumental in the fight to make gay marriage the law of the land in Rhode Island. Senator Euer has served on the boards of the Environmental Justice League of Rhode Island and Bike Newport. She has also advised the Newport City Council on energy efficiency, renewables, sustainable planning, and other environmental matters. In 2017, Senator Euer successfully ran to represent parts of Newport and Jamestown in the Rhode Island State Senate. Running in a district on the front lines of climate change and sea level rise, Senator Euer advocated for substantial investments in renewable energy and resiliency. In the last legislative session, Senator Euer delivered on that promise in a big way. She succeeded in passing the Act on Climate bill, the most comprehensive climate legislation in State history. As the lead sponsor, Senator Euer developed an actionable plan to create mandatory and enforceable emissions reduction goals that chart a course to a safer future. With that legislative victory in hand, Senator Euer recently traveled to COP26 in Glasgow to help show the world that American climate leadership is back. For my friend Senator Euer's tireless efforts in championing the 2021 Act on Climate and for all of her hard work on behalf of the people of Newport and Jamestown, I stand today to recognize her.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise today to honor Meg Kerr, a staunch advocate for the environmental movement. Ms. Kerr retired earlier this year after a successful career of climate leadership and service to the State of Rhode Island. After graduating from Brown University and the University of North Carolina, Ms. Kerr began the early part of her career as a scientist. She worked for the Environmental Protection Agency across North Carolina, Virginia, and Washington, D.C., where she partnered with States to standardize water quality reporting aligned with the Clean Water Act. Ms. Kerr then moved back to Rhode Island and quickly established herself as a prominent advocate for the environment, taking on roles at the Rhode Island Rivers Council, the Narragansett Bay Estuary Program, and Clean Water Action. Ms. Kerr closed out her impressive career as the Audubon Society of Rhode Island's Senior Director of Policy. To add to the list of her accomplishments, Ms. Kerr was a founder of the Rhode Island Green Infrastructure Coalition and helped launch the Providence Stormwater Innovation Center. She also helped found the annual Land and Water Conservation Summit that brought together hundreds of environmentalists from the State and region for over a decade. Ms. Kerr is passionate about pollinators, as demonstrated by her work organizing the Bee Rally to bring attention to the threats faced by our beloved bugs. Ms. Kerr is a fierce and respected leader for the environment and a familiar face at the Rhode Island statehouse. Her expertise, mentorship of others, and ability to get things done for Rhode Island's environmental community has made a real mark on our State. I am proud to recognize her service and thank her for all she has done to protect our environment.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise today for now the ninth time to unmask the rightwing, dark money scheme to capture our Supreme Court. I say ``capture'' in the sense of regulatory capture, an Agency capture-- a well-known phenomenon. Today, I turn to an important tool of the scheme's apparatus: the orchestrated amicus curiae brief. So, first things first, amicus--or friend of the court--briefs are an important instrument in our judicial system. They help those who aren't parties to a case to share their expertise, insight, or advocacy with the Court. I file them myself. ``Friend of the court'' briefs are necessary and useful, usually. However, in recent years, the Court has had a lot more friends than it used to. Amici filed 781 briefs in the 2014 Supreme Court term--a more than 800-percent increase from the 1950s and a 95-percent increase just from 1995. In the 2010 term, 715 amicus briefs were filed in 78 cases. By 2019, that number had swelled to 911 briefs in just 57 cases. The average number of briefs per argued case almost doubled--from 9 in 2010 to 16 in 2019. There is another odd feature to this uptick of amicus briefs. Most of the time, you file an amicus brief when the Justices have taken a case and are poised to actually decide the outcome of that case, at the so- called merits stage of the case, which makes sense because this is when the rulings actually become law. But these days, more and more amici arrive when the Court considers whether to take up the case, when the Justices are deciding whether to grant certiorari, or cert. Between 1982 and 2014, the percentage of petitions with at least one cert-stage amicus more than doubled. Justices pay attention to amicus briefs. The Court cited amicus briefs 606 times in 417 opinions from 2008 to 2013--far more than in the past. These briefs don't always add value, and top appellate judges are beginning to sound that alarm. Seventh Circuit Judge Michael Scudder said in 2020: ``Too many amicus briefs do not even pretend to offer value and instead merely repeat . . . a party's position'' and ``serve only as a show of hands on what interest groups are rooting for what outcome.'' OK. So what does this have to do with the scheme? Well, what happens if the Justices whom dark money forces ushered onto the Court are looking for that show of hands? I doubt it is just a coincidence that the rightwing donor machine that set out to capture the Court has also kicked into gear flotillas of amici that inundate the Court with briefs, signaling their desire for a certain outcome--a showing of hands that is orchestrated. Now, the scheme is, by design, hard to make out. It runs on anonymous dark money for a reason. It works through front groups, some with multiple fictitious names. It works hard and spends plenty to hide its hand. Still, look carefully, and the scheme's hand is there to see. Like eddies swirling the water's surface as a creature moves beneath, signs of rightwing donor influence swirl around the Court. One of the strongest signs is that there is a pattern--a pattern of success when orchestrated flotillas of dark money amici, funded by a small number of wealthy rightwing donors, show up: they win. This Court, the Court that dark money built, delivers in their favor. Exhibit A is probably the U.S. Chamber of Commerce, where the idea for this scheme first bubble up years ago with the Powell memo. Over the past 15 years or so, the chamber has filed more amicus briefs at the Supreme Court than almost anyone else and has gotten its preferred result 70 percent of the time. And no one knows what company or what interest the chamber may be fronting for. That is hidden from the Court and from the other parties. The chamber can even hide if one of its members wrote or funded the chamber's amicus brief in that member's own case. So the members of the party and the chamber on behalf of the member file an amicus brief, and no one is the wiser. So it is no surprise that the chamber is trying very hard to block the Judicial Conference from bringing more transparency and daylight into the funding of these amicus briefs. It is not just the chamber in this deep racket here. If you take the recent anti-union cases--Janus v. AFSCME, Cedar Point Nursery v. Hassid, and Freidrichs v. California Teachers Association, each case drew 10 or more amicus filers connected to these scheme donors. In both Freidrichs and Janus, scheme megadonor the Bradley Foundation funded the law groups representing the anti-union plaintiffs and also funded a dozen supporting amici. The front groups even swapped seats with a group representing plaintiffs in one case, turning up as an amicus in the other case and vice versa. It is a front-group, pea-and- shell game that the Court, for some reason, indulges. It is no surprise that all of these cases delivered big wins for corporate interests out to weaken organized labor. Or you could look at the scheme's attack on the Consumer Financial Protection Bureau. The CFPB has long been a target of rightwing interests. The Center for Media and Democracy reported that 16--16-- rightwing foundations, including the Bradley Foundation and Donors Trust, had donated almost $70 million to 11 amici who opposed the Consumer Financial Protection Bureau. I did a brief in that case, an amicus brief of my own, and I put this graphic in my amicus brief as an appendix to show the Court the common funding of all of these groups that purported to come in as independent, unassociated amicus filers. So here are the donors across the top--Donors Trust, Bradley Foundation, Scaife Foundation, Searle Trust, Charles Koch Foundation, Kirby Foundation, and the DONNA Foundation--and here are the groups that filed briefs. Every single one got money from Donors Trust, which is called the Koch brothers' ATM. It is the entity that hides who the real donor is, and it just shows up as Donors Trust. Here is the Bradley Foundation--all but one, two, three. Here is the Scaife Foundation--all but one, two, three, four, five, and so on. So there is an enormous amount of overlap that I was able to figure out, as pointed out in my brief, and then the Center for Media and Democracy came through with a more complete report and did an even better job of researching that. So remember from my previous speeches how it was the Federalist Society that was home to the dark money turnstile that selected all three of Trump's Supreme Court appointees. Eleven amici supporting the challenge to the CFPB received funding from entities that also funded the Federalist Society. So it is a pea-and-shell game of funded amici with a lot of shells. And then there is the biggest scheme case of them all. You might call it the scheme-a-palooza. The case was called Americans for Prosperity Foundation v. Bonta. In this case, more than 50 dark money organizations filed amicus briefs at the cert stage, when the question is, Do we take the case, before it is even being argued on the merits? Fifty dark money groups appeared at the cert stage, and another 45 turned up at the merit stage, all to support the Americans for Prosperity Foundation, which you will recognize as the Koch-backed twin to Americans for Prosperity, which is the front group at the heart of the Koch brothers' political operation. It is the center of the rightwing political dark money web. Essentially, the Americans for Prosperity Foundation and Americans for Prosperity are the same organization. In current, state-of-the-art, dark money politics, you twin a 501(c)(3) and a 501(c)(4) and work them as a pair. Sure enough, if you look at Americans for Prosperity and Americans for Prosperity Foundation, they share quite a lot. They share the exact same address, for instance: 1310 North Courthouse Road, Suite 700, Arlington, VA. They share the same CEO. They share the same senior vice president of grassroots in Americans for Prosperity and senior vice president for State operations in Americans for Prosperity Foundation. They share the same senior vice president of policy. They share the same chairman of the board. They share the same president. If you were to do a piercing of the corporate veil analysis, you would be hard- pressed to show that these are not essentially the same organization. And that armada of amici that came into the Americans for Prosperity Foundation case, all of them received funding from the Koch political network or the Koch identity laundering group, Donors Trust. At least eleven prominent rightwing groups gave close to $222 million, spread across 69 of those amici who came in to support their fellow Americans for Prosperity Foundation. If the little flotillas of a dozen or so in the CFPB case and in the anti-labor cases were sending a signal to the Court, this turnout was a screaming alarm--a megaphone--in the Court's face. So what made the AFPF case such a big deal for the scheme? Well, this case gave ``the Court that dark money built'' an opportunity to do something that dark money donors desperately wanted. It gave the Court the opportunity to create for the dark money donors a new constitutional right--a new constitutional right to dark money, the essential political weapon for the scheme. And the Court did it. The Republican Justices, six to three, did it. ``The Court that dark money built'' struck down a State rule requiring limited disclosure of nonprofit donor information from a very political nonprofit and went on to cast a shadow of doubt on the constitutionality of disclosure requirements of any kind. The amicus mischief at the Court continues. Look at the gun case before the Court right now, New York State Rifle & Pistol Association v. Bruen. This case is priority No. 1 for the NRA and its gun industry backers. It has been a centerpiece of the scheme for a very long time to have the Court create gun rights that even a Republican Congress won't give to the firearms industry. So in this case, the amicus signal flags are flying. Sixty-five organizations filed briefs supporting the NRA affiliate that brought the challenge. At least 13 of those groups have ties to the scheme's dark money funding network. Several amici are arms of other amici; that is, the fundraising or lobbying arm of an organization that itself also filed a brief in the case. At least five amici are NRA affiliates, and they were joined by the NRA's ``Civil Rights Defense Fund.'' And, believe it or not, thanks to leaks by Russian hackers, we have seen that the NRA paid a lawyer at one of the amicus groups hundreds of thousands of dollars to file pro- NRA briefs in this case, none of which was disclosed to the Court, none of which was disclosed to the parties, none of which was disclosed to the public. It took Russian hackers to find out that the NRA was funneling money to an amicus for a brief. Well, it seems like the Justices got the signal from all of those dark- money-funded amici. Based on questioning from the Court Republicans at oral argument, this case looks almost certain to go in the scheme's favor. Pause to consider what this means. The NRA basically cloned itself to amplify its voice before the Court, just as other scheme front groups have done in other cases, in wave upon orchestrated wave of amicus briefs, washing into the cases that matter to the scheme's big donors. And when those little orchestrated flotillas or the big orchestrated armadas show up at the Court to signal what they want, they always get what they want from the dark money majority at the Court--always. Maybe not all they want always--some groups ask for more than others. Some signal where they want the Court to go in future cases, not just what they want in this case. But the response from the Republicans on ``the Court that dark money built'' is clear. They heed the dark money signals every single time. Our Supreme Court is awash in dark money influence, with flotillas of dark-money-funded front groups--front groups that don't bother to ``offer value,'' that aren't even real, in the sense that they have no real business or function, that exist merely to signal their donors' desired outcomes, while hiding their donors' identities. It is an armada of fakery that the court indulges. This fakery lets a small, wealthy, donor elite manufacture sham allies to get themselves a bigger say at the Supreme Court than everyone else. They are out to get the Court to do stuff for them that Americans don't want and that Congress won't vote for. But with a captured Court, they can get what they want, and they do. The American people may not be able to see all of the rot, but they can see enough to know that something is rotten over there across First Street at that Court. We must set it right. To be continued.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 451 regarding Max Cleland submitted earlier today.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 452, submitted earlier today.

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. 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, with the exception of this speaker, who will speak for, probably, more like 20 minutes.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 449, submitted earlier today.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to executive session to consider the following nominations en bloc: Calendar Nos. 466, 509, and 358; that the Senate vote on the nominations en bloc without intervening action or debate; the motions to reconsider be considered made and laid upon the table with no intervening action or debate; that any statements related to the nominations be printed in the Record; that the President be immediately notified of the Senate's action, and the Senate resume legislative session.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. For the information of the Senate, there will be two rollcall votes at 10 a.m. on cloture on the Nelson nomination and cloture on the motion to proceed to the NDAA.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., Wednesday, November 17; 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; that upon the conclusion of morning business, the Senate proceed to executive session to resume consideration of the Nelson nomination.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, as if in executive session, I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on November 16, 2021, by the President of the United States: Amendment to Montreal Protocol ``Kigali Amendment,'' Treaty Document No. 117-1. I further ask that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE. In order to place the bill on the calendar under the provisions of rule XIV, I would object to further proceedings.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. If there is no further business to come before the Senate, I ask unanimous consent that it stand adjourned under the provisions of S. Res. 451 and do so as a further mark of respect honoring the life and legacy of the late Senator Max Cleland.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise today to discuss again the scheme by rightwing donor interests to capture and control our Supreme Court, just like big industries have captured and controlled regulatory agencies through history. In these speeches, I have covered the origins, motivations, and central players in the scheme; and, today, I am here to respond to a little bit of counterprogramming from the scheme. So, obviously, Job 1, if you have captured an agency, is to pretend it is not captured; it is still legit. Well, on Thursday, the minority leader, Senator McConnell, one of the principal operatives of the court capture scheme, traveled to The Heritage Foundation, one of the central dark-money groups in the court capture scheme, to toast Justice Clarence Thomas, one of the most ardent justices in pursuing the scheme's donors' goals and purposes. Senator McConnell opened by lauding Justice Thomas for his campaign to overturn decades of precedent protecting women's constitutional right to abortion. That is an important point to note because the court is set to take up not one but two cases offering the new 6-3 Republican majority a chance to tear down Roe v. Wade. But his other mission was to defend the court capture scheme, and that is an important mission right now because the court just hit an all-time low on Gallup's national approval survey. According to a poll out this month by one of the most respected pollsters in the country, about two-thirds of Americans think politics guides the Supreme Court's decisions. And that is not a partisan opinion. Republicans and Democrats share that view in equal proportion. And Americans aren't wrong. When big Republican donor interests come before the Court, they win--it looks like every time. I have shown the pattern. I have published an article on it. It is currently at 80 to 0. Lawyers would love to take evidence like that--an 80-to-0 record--into court as pattern evidence of bias. So when the evidence is bad, what do you do? You blow smoke. There is an old, old propaganda technique of accusing your adversary of the exact wrong you are committing. It is such an old propaganda technique that it even has a Latin name: the ``tu quoque fallacy,'' from the Latin for ``you too.'' The Oxford English Dictionary defines it as ``retorting a charge upon one's accuser.'' It is a rhetorical trick. At Heritage, Senator McConnell used this rhetorical trick, retorting a charge that critics like me of what has happened to the Court were trying to politicize the Court. Now, that is a particularly tricky version of this rhetorical trick because it is an accusation of something that we did not do, coming from people who actually did that. We have all seen in plain view the mischief done by Senate Republicans to capture the Court for big special interests. They weren't even subtle. So the ``tu quoque'' rhetorical trick says to accuse us of what they did. The Republican leader's rhetorical charge stood on a Supreme Court brief that I wrote, along with a number of my colleagues. And in that brief, we quoted a Quinnipiac poll. That Quinnipiac poll showed that a majority of American voters believe the Court is--and I quote the poll here--``motivated mainly by politics''--``motivated mainly by politics'' and the poll continued that those voters believed the Supreme Court should be--and, here, I am quoting the poll-- ``restructured in order to reduce the influence of politics.'' That is the language from the poll question. And in our brief, we quoted it precisely. In his telling, Senator McConnell leaves out the quotation marks and turns what was essentially an uncontested observation of fact of what that poll said, using the language of that poll, into what the rightwing has constantly replayed and cooked up as a threat to the Court. He also suggested that I had called for expansion of the Court, which I have actually not done. But never let the facts get in the way of a good story, huh? In his telling, the majority leader's telling, it is Democrats who are up to no good at the Court. Let's look at what that telling leaves out because it masks a lot. First, it masks the Court's partisan record, the record I have described: Justice Thomas and his fellow Republican appointees in the 5-to-4 and now 6-to-3 majority on the Robert's Court has handed down over 80 partisan 5-to-4 decisions benefiting easily identified Republican donor interests. Like I said, by my reckoning, it is an 80- to-0 record for the big donors. His telling masks all of that. It also masks the entire Republican Court-packing operation that yielded three donor-selected Justices and hundreds of lower court judges during the Trump Presidency. It masks the big donors' nominations turnstile at the Federalist Society, where they decided who would and would not become a Justice. It was insourced to the White House for it to vet and select Trump nominees. It masks the dark money political attack groups, which used massive anonymous donations to apply political pressure on behalf of the donors' nominees. And it masks Leonard Leo and the shady $250 million web of dark money groups outed by the Washington Post for packing and influencing the Court. What else does it mask? It masks the influence operation built to steer those Justices' attention to rightwing donor priorities. It masks the armada of amici curiae--so-called friends of the court-- appearing before the Court by the orchestrated dozen, funded by dark money. It masks the dark money front groups that comb the country for cases that can catapult selected controversies before the Court to help the Justices change precedent; it masks the special interest fast lane those front groups have established to get cases quickly before the Court, a fast lane the Court indulges; and it masks the hot house dark money so-called think tanks, like the Heritage Foundation where Senator McConnell spoke, where legal theories benefiting Big Donor interests are planted and watered and fertilized and propagated for the Court to adopt. And, last, it masks what Republicans did, shredding norms and rules that the Senate had long relied on to manage judicial nominations, the scrapping of the Supreme Court filibuster; the scrapping of the circuit court blue slip; the acceptance of preposterous assertions of executive privilege to hide nominees' records; the refusal to grant Merrick Garland so much as courtesy visits, let alone a hearing; the invention of the so-called Garland rule about not confirming Justices near an election; the mad rush to confirm Brett Kavanaugh under the cloud of barely examined sexual assault allegations; and then the hypocritical full 180 reversing that so-called Garland rule to jam a rightwing Justice onto the Court 8 days before an election. This was all done in plain view. This was not subtle. You have got to be gaslighting really hard to not pay attention to all that evidence. I will tell you what, we weren't the only ones watching. The American people are watching, and they are fed up with all of this. They trust their noses, and they know this reeks. Senator McConnell and I do agree on one thing. There are, as he said, ``storm clouds'' swirling around the Court. I also agree with him when he said this; he said: One of our country's two major political movements has decided they're fed up with trying to win the contest of ideas within the institutions the framers left us and would rather take aim at the institutions themselves. That statement is exactly true. It is just that Senator McConnell got exactly wrong which party is the guilty one. Against that litany of interference and influence and dark money all around the Court that I just described, one misquote from a brief--it is not even a contest. Here is a final quotation to set next to Senator McConnell's. It comes from Lewis Powell a few months before he took his seat on the U.S. Supreme Court. In a memo he wrote to one of the most significant forces in Republican politics, the U.S. Chamber of Commerce--a memo, by the way, that was never disclosed to the Senate during his confirmation proceedings. Here is what he wrote: Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change. Powell branded the courts a major element of what he called ``The Neglected Political Arena'' that Big Business and rightwing ideologues should move in and exploit. Exploiting that is exactly what the rightwing donor scheme is. It enmired the Court in dark money influence. It packed the judiciary with judges selected to rule in the big donors' favor. It won an 80-to-0 rout of partisan decisions benefiting Big Donor interests. And it is steering the Court to protect the dark money that was the prime vehicle for capturing the Court in the first place. Oh, yes, indeed, the Court has been politicized, but look at the evidence. We weren't the ones who did it, and no amount of smoke can obscure the evidence of how this Court became the Court that dark money built. I yield the floor.