In late May, the Supreme Court decided not to take up a case that some said could have been the next Citizens United. The case, Republican Party of Louisiana v. FEC, would have given the Court the opportunity to overturn yet another pillar of campaign finance law – this time, the limits on state and local political parties using large and unregulated “soft money” contributions on federal election activity.
One of the two justices who publicly dissented from the decision not to consider the challenge was newly appointed Justice Neil Gorsuch. Gorsuch’s reasons for wanting to hear a case that could further relax campaign finance law are not known, but his decision underscores the massive support his nomination received from an organization that is benefiting from campaign finance deregulation, the Judicial Crisis Network (JCN).
JCN is an organization dedicated to ensuring the confirmation of conservative judges, particularly in the higher courts. Recently, JCN launched a $140,000 ad campaign supporting the nomination of Michigan Supreme Court Justice Joan Larsen to the Sixth Circuit Court of Appeals in light of the fact that Michigan Senators Debbie Stabenaw and Gary Peters have not yet given word on her nomination. The campaign “encourage[s] Democrat Senators Stabenaw and Peters to Stop Playing Partisan Games with Judicial Nominee.” The advertisements resemble those that JCN rolled out in January prior to the Senate vote on Supreme Court Justice Neil Gorsuch.
On January 9th, the Judicial Crisis Network (JCN) announced a $10 million dollar advertising campaign blitz to urge senators to confirm President Trump’s pick for the Supreme Court. The week leading up to the Senate vote, which Senate Democrats planned to filibuster, JCN launched an additional million dollar television and digital ad campaign to push for an up-and-down vote for Judge Gorsuch. The ads running nationally were 30-second spots that, in the style of a traditional electoral campaign advertisement, painted a favorable, uncontroversial picture of Judge Gorsuch as “a constitutionalist rather than a partisan” who is “completely qualified, with bipartisan support” in order to appeal to Democrats. There were also state-specific iterations, such as an ad that ran in West Virginia encouraging constituents to call Sen. Joe Manchin (D-WV) to thank him for pledging to support Judge Gorsuch.
Prior to the April 6 vote, only three Democratic senators – Manchin, Joe Donnelly (D-IN), and Heidi Heitkamp (D-ND) – stated they would support Gorsuch, which was not enough to prevent the eventual Democratic filibuster and subsequent invocation of the “nuclear option” to make the Supreme Court confirmation a matter of simple majority vote and expediently ushering in the 113th Supreme Court Justice.
JCN was founded in early 2005 as the Judicial Confirmation Network to “[drum] up support for [George W.] Bush Supreme Court nominees John Roberts Jr. and Samuel Alito Jr.,” who it hoped would serve as “allies for Scalia on the Court’s right flank.” JCN was the brainchild of right-wing attorney Jay Sekulow of the American Center for Law and Justice, and initial funding was given by California real estate owner and “foreclosure king” Robin Arkley II, a prominent conservative California donor. Anne Corkery, a conservative fundraiser and lawyer, helped get the organization off the ground; her husband, Neil, now serves as its treasurer.
Sekulow is a member of the conservative Federalist Society, which was founded in the early 1980s to change law and policy to reflect conservative positions “[t]hrough conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary.” In 2005, Sekulow joined three other Federalist Society members – former Attorney General Edwin Meese III (who influenced judicial selection since the Reagan administration), C. Boyden Gray (who advised judicial appointments in George H.W. Bush’s administration), and Leonard Leo, executive vice president of the Federalist Society (who took a leave of absence to advise George W. Bush on judicial selection, and did the same “to work full time on Gorsuch’s nomination”) – to provide informal but influential judicial selection advice to the Bush administration. The group came to be known as the “Four Horsemen,” and it worked through JCN to “[assemble] a group of grassroots organizers, public-relations specialists, and legal strategists to prepare for vacancies that might occur on the Supreme Court.”
JCN successfully pushed for the confirmation of Roberts and Alito during the Bush administration, then went quiet until late in 2008, when it began issuing ads questioning President Obama’s ability to choose Supreme Court candidates. During the Bush years JCN purported to “[work] to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” But after President Obama was elected, JCN changed its tune and began demanding “[c]areful scrutiny by the Senate” of presidential nominees. In 2010, JCN changed its name to the Judicial Crisis Network in order to reflect its “broade[r] mission” to “confront the radical legal and legislative threats facing the country.” On its website, as well as in promotional material, JCN now presented itself as an organization that will “oppose attempts to undermine rule of law; unconstitutionally expand the power of government; politicize the enforcement of law; threaten American sovereignty…or bias the legal system on behalf of politically favored groups or individuals.”
Following the death of Antonin Scalia and Senate Majority Leader Mitch McConnell’s categorical rejection of any Obama administration nominee, JCN further repudiated its earlier claim to work to ensure every nominee gets and an up or down vote, announcing a “seven figure television, radio and digital advertising campaign” that advocated against considering any Obama Supreme Court nomination. By contrast, in 2005, when a Republican administration was in office, JCN circulated a petition that urged Senators to bring judicial nominees to the floor for a vote as part of their constitutional responsibility.
DARK MONEY CONNECTIONS
While JCN’s actions indicate an apparent bias for up or down votes only for Republican nominees, it is not a partisan political organization. Rather, JCN is a section 501(c)(4) social welfare non-profit, and therefore not required to disclose its donors. However, because social welfare organizations are still required to list their grants and contributions to other organizations, it is known that the Wellspring Committee provided JCN with 90% of its funding . Wellspring is run by Anne Corkery, who helped found JCN and whose husband, Neil, is JCN’s treasurer.
The Wellspring Committee is a conservative dark money group that gives to a swath of organizations that often support Republican candidates, such as the 501(c)(4) arm of America Rising, 45Committee, Americans for Prosperity, and Americans for Job Security, as well as to Data Trust, a data mining company that “serves to continually develop a Republican and conservative data ecosystem.” Wellspring’s financial support to JCN allows JCN to serve as a further conduit for other groups that engage in politics, adding another screen to conceal the original donors. According to JCN’s 2014-15 tax return, the group spent 35 percent of its expenditures on election-oriented grants, including $950,000 to the Republican Attorneys General Association (RAGA). As JCN’s chief counsel and policy director Carrie Severino noted: “conservative AGs are emerging as key leaders in the battle for limited, constitutional government,” and JCN realizes that “the easiest way to change the law is to change the judges.”
The danger is not just that “[t]here’s a small group of billionaires who are working very hard to influence and even to control our democracy,” as Senator Sheldon Whitehouse (D-RI) said during Justice Gorsuch’s testimony. It’s also that we “don’t know who they are.”
It is unsettling that the JCN and its web of associated conservative dark money organizations were instrumental in the appointment of a man whose opinions will shape the legal landscape of the American republic for decades. The courts are “one of the most important battlegrounds for public policy…[Justice] Gorsuch will leave his fingerprints on the Constitution…”