Nine years ago, Supreme Court Justice Anthony Kennedy authored a 5-4 decision that state-level judges must recuse themselves from cases in which an interested party has exerted “disproportionate influence” over selection of the judge. The case, Caperton v. Massey, involved a coal baron buying a seat on the West Virginia Supreme Court, with $3 million in campaign spending, in order to overrule a lawsuit that his company lost.
That good-government ruling may seem quaint by today’s standards of judicial confirmation lobbying.
Business groups with interests before the U.S. Supreme Court have orchestrated a multifaceted campaign to pressure the Senate to swiftly confirm Judge Brett Kavanaugh.
Business groups with interests before the U.S. Supreme Court have orchestrated a multifaceted campaign to pressure the Senate to swiftly confirm Judge Brett Kavanaugh to the nation’s highest court. The advocacy reaches across the influence economy of Washington, D.C., with the largest corporate lobbying groups and billionaires working in concert with Republican operatives to elevate Kavanaugh to a lifetime posting atop the judiciary.
Few businesses, however, have stamped their names on the effort. Most major corporations and wealthy donors are instead using 501(c) nonprofit groups that do not require donor transparency to air upward of $15 million in reported advertising spending in order to convince the public to support Kavanaugh’s nomination. Other conservative groups contributing to the ad war have not disclosed how much they are spending, likely bringing the total much higher.
Among the groups publicly campaigning for Kavanaugh to be confirmed are the giants of pro-business lobbying — organizations like the U.S. Chamber of Commerce and the Koch brothers-funded Americans for Prosperity. Lesser-known, business-funded political groups, such as the Republican Attorneys General Association, are also spearheading campaigns. Meanwhile, a host of industry groups — funded by many of the same corporate interests that fund the larger lobbying organizations — are eagerly waiting for Kavanaugh to be elevated and rule on cases that will affect their businesses.
Brett Kavanaugh’s Pro-Business Record
While the particular funders of pro-Kavanaugh campaigns are obscured, the goals of the groups behind the effort are far from hidden. The interests backing Kavanaugh are hoping that his confirmation will tilt the court and undercut potentially dozens of government policies on clean elections, environmental regulations, bank regulations, and predatory lending, in addition to weakening organized labor.
Even for a Supreme Court nominee chosen by a Republican president, Kavanaugh has compiled a uniquely pro-business record.
Take, for instance, the famous SeaWorld case: After a trainer was eaten by a killer whale at SeaWorld, Kavanaugh wrote a dissenting opinion at the D.C. Court of Appeals against new safety regulations, calling such measures “paternalistically” motivated. On environmental regulations, he ruled multiple times to overturn Clean Air Act regulations on cross-state pollution and climate change, in both cases arguing that the Environmental Protection Agency acted beyond its statutory bounds.
When it comes to corporations’ ability to affect elections, too, Kavanaugh has reliably sided with business interests. As The Intercept reported, Kavanuagh authored a pivotal decision in 2009 that helped clear the way for the infamous Citizens United ruling, which unleashed unlimited corporate spending in political campaigns the following year.
In addition, Kavanaugh has ruled against consumer rights, against labor organizers, and against class action lawsuits — a record that places him squarely in the Fortune 500’s corner. The Constitutional Accountability Center, after analyzing key rulings on workers rights, corporate regulations, and multinational corporate liability, found that Kavanaugh “has sided with corporate and business interests even when consumers, workers, and regulatory agencies had the text of the law and precedent on their side.” Similarly, the progressive consumer rights group Public Citizen analyzed Kavanaugh’s decisions and found that the judge sided with big business in 76 percent of cases brought before him in the D.C. circuit.
His elevation to the Supreme Court may give Kavanaugh an opening to strike down a whole litany of government regulations in short order. The key test case for the Trump administration appears to be a legal precedent known as the “Chevron deference.” The doctrine emerged from a 1984 ruling that gave federal agencies leeway to reasonably interpret the law when a statute is ambiguous. In 2007, Kennedy joined the four liberals on the Supreme Court for the Massachusetts v. EPA decision, which enshrined the Chevron deference and ruled that the EPA had authority under the Clean Air Act to regulate greenhouse gas emissions.
The decision laid down the legal authority for policies ushered in by President Barack Obama, interpreting 20th century statute to develop new regulations on a range of issues faced by society, including net neutrality, climate change, and workplace safety.
Kennedy’s retirement opens up the possibility that the court could revisit the Chevron deference in a way that sharply limits regulatory power.
Corporations See Dollar Signs on Supreme Court
Corporate lobby groups seized on the opportunity that Kavanaugh’s nomination represents. Business lobby groups have leaned on President Donald Trump not only to repeal as many of the previous administration’s regulations as possible, but to appoint judges who will overturn the Chevron deference standard — a move that could eviscerate a range of government policies that exist today, while also tying the hands of any future Democratic president.
The National Federation of Independent Business, a lobby group currently mobilizing support for Kavanaugh, has said that the Chevron deference is among the organization’s top judicial concerns. Koch Industries’ counsel, Mark Holden, in a column praising Trump’s judicial nominations, approvingly cited Justice Neil Gorsuch’s strident criticism of the Chevron deference. The sprawling Koch network has made efforts to weaken federal regulatory authority the primary focus of its lobbying apparatus.
White House counsel Don McGahn and Federalist Society Vice President Leonard Leo — two of the men most intimately involved in vetting Trump’s judicial appointments — have also reportedly made opposition to the Chevron deference a key factor in evaluating nominees.
Trump’s inauguration saw Kavanaugh explicitly laying out his full-throated opposition to the Chevron deference legal doctrine.
That criteria has not been lost on Kavanaugh. Though he spent the years of the Obama administration routinely ruling against agency authority, Trump’s inauguration saw Kavanaugh open up a new and more forceful line of argumentation as a D.C. circuit judge: He began explicitly laying out his full-throated opposition to the Chevron deference legal doctrine.
“The Chevron doctrine encourages agency aggressiveness on a large scale,” Kavanaugh said in a speech before the Notre Dame Law School on February 3, 2017. “Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.” He noted that he witnessed this “all the time” from agencies such as Securities and Exchange Commission, the Environmental Protection Agency, and the Federal Communications Commission.
Just a few months after the speech, Kavanaugh was added to Trump’s list of potential Supreme Court nominees.
It’s no surprise, then, that interest groups around the Beltway have noted that Kavanaugh’s placement on the court could help overturn regulations opposed by business. A contributor to the publication InsideARM, a trade journal for telemarketing companies and debt collectors, noted that recent regulations on robocalls rely on broad, rather than literal, interpretation of existing statute, making the rules vulnerable to legal challenges. If such a challenge comes along while Kavanaugh sits on the court, he would likely restrict or overturn the Chevron deference in ways that could benefit telemarketers and debt collectors.
Likewise with the U.S. Chamber of Commerce, the largest pro-business lobbying federation in the country, which represents firms such as Dow Chemical, Prudential, ExxonMobil, and Goldman Sachs. The group has long challenged environmental and financial regulations on the basis that regulators acted beyond the limits of statutory authority. The powerful lobby announced in August that it would mobilize support for Kavanaugh, claiming it would score support for Kavanaugh as a “key vote” in evaluating members of Congress. The Chamber spends tens of millions of dollars every election cycle against lawmakers who cross them on major votes.
The Republican Attorneys General Association, which is currently spearheading a lawsuit to overturn Affordable Care Act regulations, is similarly conducting its own “Confirm Judge Kavanaugh!” campaign. RAGA is funded by Coca-Cola, WalMart, Koch Industries, and other large corporations.
The Koch brothers’ political arm, the group known as Americans for Prosperity, has similarly swung into action. The group is mobilizing door-to-door canvassing, producing television and Facebook advertising, and directly lobbying the Senate to confirm Kavanaugh.
If confirmed, Kavanaugh will immediately have an opportunity to axe regulatory authority. On Monday, the Supreme Court, with one vacant seat, heard oral arguments on Weyerhaeuser Co. v. United States Fish and Wildlife Service, a suit regarding whether the federal government can designate land as a habitat for endangered species.
In that case, many of the same groups lobbying to confirm Kavanaugh — including the U.S. Chamber of Commerce; the National Federation of Independent Business; and Cause of Action, a legal affiliate of the Koch brothers’ political network — have filed amicus briefs arguing that federal agencies should be reined in to prevent regulations that businesses view as overly burdensome.
The stakes for corporate lobbying groups to confirm Kavanaugh, and to do so quickly, could not be more clear.