Opinion: The dark money king

By JONATHAN P. BAIRD

Published: 11-06-2023 6:00 AM

Jonathan P. Baird lives in Wilmot.

I would bet that if you asked most regular people who Leonard Leo was, the overwhelming majority would say they never heard of the guy. Leo first came to public attention when former President Donald Trump was considering nominees to the U.S. Supreme Court. Leo, a leader in the conservative legal organization the Federalist Society, gave Trump a list of names they had vetted. From that list, Trump picked Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

If being Trump’s judge whisperer was the only thing Leo ever did, that alone would have been significant. However, that barely touches Leo’s accomplishments. Operating behind the scenes, he has created a conservative legal juggernaut of staggering influence.

Probably Leo has been most successful as a network builder. Whether it is the U.S. Supreme Court, federal courts, state supreme courts, and state solicitor generals and attorney generals, Leo has been the architect of a conservative power grab in all these forums. He advised the Trump administration in filling more than 200 positions in federal district and appellate courts. He has cultivated pipelines of conservative legal talent and then has used Federalist Society connections to place proteges in positions of power.

Leo has had tremendous success as a fundraiser. It is no exaggeration to say that dark money associated with his various front groups have bankrolled the entire conservative legal movement. In August 2022, a 90-year-old right-wing billionaire, Barre Seid, gave a new group set up by Leo $1.6 billion. It was the largest known political advocacy donation in U.S. history.

With that immense amount of money, Leo then distributed much of that money throughout the conservative legal movement. The money has been used to influence elections, judicial appointments and public policy battles. In a speech to the Federalist Society, Leo’s good friend, Justice Clarence Thomas introduced Leo and referred to him as “the number three most powerful person in the world.” Thomas may have been joking but he was not off the mark.

ProPublica and the NPR show On The Media recently did a three-part podcast about Leo titled, “We don’t talk about Leonard.” The podcast delved deep into the world around Leo and many people were unwilling to talk about him. He is funding so many organizations that no one who takes that money wants to run the risk of alienating him. People generally did not want to go on the record.

Even before he got the $1.6 billion donation in 2022, Leo was a prolific fundraiser. According to ProPublica, tax records show that between 2014-2020, groups in the Leo orbit raised more than $600 million. Leo is the embodiment of dark money, where the source of spending utilized to influence elections, public policy and political influence is never disclosed to the public. His frequently name-changing non-profits pass along money to each other. The law allows non-disclosure of where money came from.

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When asked about the money, Leo will always say something like he is just trying to keep up with the left but what he is doing is unprecedented. Speaking as someone on the left, I would acknowledge the left has nothing like what Leo has set up.

He has created an apparatus that includes think tanks, law firms, marketing firms, academics, shell companies and journalists designed to steer the law in a pro-elite, anti-abortion, deregulatory and anti-democracy direction. And, as noted, the enterprise is funded anonymously so it remains largely hidden. Citizens United paved the way for unlimited secret corporate political spending.

When people write about the courts, context is often missing. So many articles begin by looking at an individual case. What is missed is that Leo, the Federalist Society, and their extreme right-wing billionaire funders are commandeering democracy by using their massive money machine to capture the courts.

Being unable to win many popular elections because of their reactionary agenda tilted to supporting the super-rich, conservatives like Leo work to control democracy through the ultra-minoritarian power of the Supreme Court. Leo did not start his efforts during the Trump years. He was also an advisor to George W. Bush on his Court appointments including John Roberts and Samuel Alito. Leo has spent the last 30 years working this project.

The last thing Leo wants is the nomination of judges who might deviate from his extreme right orthodoxy. He looks at justices like Sandra Day O’Connor, David Souter and Anthony Kennedy as squishy and failing his litmus test.

He wants young conservative judges in the Thomas/Alito mold who can be on the court many years and who are pro-gun, anti-abortion and anti-gay. Leo has cultivated the careers of many young lawyers. He then will try to get them placed so they can further his culture war agenda by deciding cases he and the Federalist Society want advanced.

These days, cases don’t accidentally make their way to the Supreme Court. Leo has been all about getting test cases to the High Court. He scored his biggest win when abortion rights were gutted but Leo has a big agenda. I suspect reversing gay marriage and opposing contraceptive access is next.

In his most recent incarnation, Leo is now the chairman of Teneo Network, a group that plans to “crush liberal dominance” in American life. Teneo plans to do to American society what the Federalist Society has done to American law. He is fighting the woke and Hollywood which he, as a Catholic, sees as corrupting youth.

Many liberals and progressives have failed to understand what Leo has constructed. He has had a generational timeframe and has undeniably pushed many courts, including the Supreme Court, in a far-right direction.

Any Democratic administration now or in the foreseeable future must consider the reality that the Supreme Court will likely block any major progressive reform it can, using legal mumbo-jumbo like the major questions doctrine. This is Leo’s legacy. Progressives need their own long-range generational strategy. Without that, we will be playing defense indefinitely.