Small Fish Case Masks Billionaire Backer’s White Whale

Lisa Graves: [00:00:00] In episode one, we heard about judge shopping. If you missed that episode, first of all, we encourage you to go back and catch up on the entire series. But if you need a refresher, or if you’re just here for this specific episode, basically judge shopping is the way that shadowy groups manipulate the judicial system by manufacturing a case in a specific jurisdiction in order to get that case heard by a specific judge or panel that they know will be friendly to their cause.

Well, in this episode, we’ll get into another tactic. That’s plaintiff shopping, or perhaps more appropriately in this case, plaintiff fishing. And to illustrate that, I want to introduce you to a fisherman from New Jersey.

Bill Bright: I am William Bright. I am a first generation fisherman. I’ve been fishing for 40 years.

Lisa Graves: For Bright’s entire career, he’s had to take out a government monitor with him and his crew on each [00:01:00] fishing expedition. These monitors act as safeguards against overfishing. I won’t dive deeply into the importance of that right now, but on a surface level, overfishing can cause a disruption in the ocean’s food webs and can lead to the loss of marine life, including further loss of vulnerable species like sea turtles and coral.

The government monitors even protect the sustainability of Wright’s industry. But here’s Bill’s rub. In 2020, Congress limited the government’s ability to pay for the fee to have the monitor on board. Shifting the cost burden from American taxpayers generally to the fishing operation.

Bill Bright: The concerns that I have about paying for the monitoring is that long term, is it financially feasible?

Because I’m on such small margins now, I don’t know if the quotas shrink, am I going to be able to do this?

Lisa Graves: That’s Bill Bright’s side of the story, and here are some of his colleagues.

Fisherman 2: I mean, there’s a human face [00:02:00] on it, and there are real costs. I mean, the fishermen that are affected by this. business people, they’re real people.

Fisherman 3: The fishermen that are working on our vessels would have to find jobs somewhere else.

Lisa Graves: But then one day, a non profit group reached out to Bright. They call themselves the Cause of Action Institute. That is, by the way, who produced that pull at your heartstrings video that you just heard the fishermen in.

They told Bright they wanted to protect honest, hard working fishermen. They were gonna get his message out there and help him challenge the monitor fees, even if they had to take it all the way to the US Supreme Court. It was going to be David versus Goliath, and together they would make things better for small fishermen in America.

But here’s the catch, David in this story is actually a group of billionaires led by one of the richest men in America, and in fact, the world. And that [00:03:00] historic fight against Goliath, it really has nothing to do with standing up for fishermen like bright. In fact, to them, Bright is kind of the bait. And if the Supreme Court swallows it, it will destroy a foundational legal doctrine that helps government agencies keep giant corporations in check.

And this would leave local communities and our environment caught in their nets. I’m Lisa Graves, and this is Grave Injustice, a new podcast from Courier that explores how extremist interest groups are hijacking the courts to bend the law and rewrite the rules. In this episode, we’ll explore how a seemingly small squabble over a seemingly small government policy could be the thread that unravels the government’s power to keep industry in check and protect ordinary people from corporate greed.

This Fisherman’s Case is called Loper Bright Enterprises, Inc. [00:04:00] versus Gina Raimondo. That tape we just heard of the fishermen is from a video on a site called loperbrightcase. com. Here’s some background. There’s an old law on the books that sets fishing limits in national fisheries. That law expressly requires companies in certain fisheries to pay out of pocket for government monitors to enforce those limits.

but not for Atlantic herring fishing. For them, the law doesn’t say that either way. And by the way, the agency in charge of enforcing this law is the National Marine Fisheries Service, or the NMFS, and it’s part of the Department of Commerce. Unfortunately, for the NMFS, there is a 40 year old legal doctrine that says when the law delegates authority to an agency, the courts defer to the enforcing agency and its expertise to interpret what that law means, within reason.

It’s called the Chevron Deference Doctrine. So when [00:05:00] Bright, and the billionaires funding his litigation, took this case to the U. S. Supreme Court, they went after this Chevron Doctrine. Strike it down, they urged. They said that the courts should have the final call and shouldn’t have to defer to agency expertise and certainly not to the meddlesome fisheries service.

End Chevron, and you end those fees for fishing monitors. By the way, Loper Bright is being heard alongside a similar case out of Rhode Island called Relentless Inc. versus Department of Commerce. I should also point out that these cases aren’t as high stakes as those fishermen in the video make it seem.

The fee isn’t destroying the industry. Bill Bright claims that paying the government monitors cuts about 5 percent out of his bottom line, which isn’t nothing, but also special government fees are standard in many industries, including fishing. And that’s all beside the point because this case really isn’t about the fishing industry.

It’s [00:06:00] about the Chevron deference doctrine. And the Chevron precedent is a really, really big deal. And if it goes away, that would reshape the balance of power in our government and with corporations.

Christopher Leonard: I feel that the Chevron case is kind of the North Star of this battle.

Lisa Graves: This is Chris Leonard. He’s an investigative journalist who covers corporate malfeasance.

Christopher Leonard: Chevron gives latitude to agencies like the EPA to carry forward really complex regulatory regimes. And it doesn’t have the, like, retail political valence of so many laws, but it’s going to affect. So many people’s lives so dramatically, if the case is decided in a certain way.

Lisa Graves: The Chevron Doctrine comes from a 1984 case that had to do with the way the Environmental Protection Agency interpreted the Clean Air Act.

And the Supreme Court ruled that when an agency makes a reasonable interpretation of a statute, the courts are [00:07:00] required to defer to the agency’s expertise. and enforce the law. After all, the agencies are the experts here, not judges on individual courts. I also spoke with David Doniger. He’s an attorney with the Natural Resources Defense Council.

David Doniger: Supreme Court said, look, step one, if the law is absolutely clear and unambiguous, then Your job is to make the agencies follow the law. But step two, if Congress has left some space, some room for agencies to help with sort of second tier policy decisions. You, the judges, are supposed to respect those decisions unless they’re completely off the wall.

Lisa Graves: The Chevron Doctrine has been used for far more than policing over phishing. In fact, it’s been decided in more than 18, 000 different cases, including at least 70 rulings by the U. S. Supreme Court. The government has used it to thwart [00:08:00] attacks on civil rights policy, anti discrimination law, carbon emissions regulations, all sorts of stuff.

Right wingers don’t like the Chevron doctrine very much. They argue that it gives the executive branch too much power to circumvent Congress and the courts. Ignore the fact that it also helps government keep big corporations in check.

Christopher Leonard: In terms of corporate power, I do use the analogy of it’s the Roe v. Wade that animates powers like Coke. It would be a huge decision, a huge win for them.

Lisa Graves: Eliminating Chevron deference is target number one for the right wing network tied to big business. It’s a white whale, a big fish, to keep my metaphors on theme. But the big irony here is that the right wingers were the ones who put that fish in the water.

The Reagan administration, to be more precise.

Ronald Reagan: We must and will be aware of the need for conservation, [00:09:00] conscious of the irreversible harm we can do to our natural heritage.

David Doniger: The early 1980s, the Reagan administration began to roll back regulations on clean air and other environmental safeguards.

Ronald Reagan: But at the same time, let us remember that quality of life means more than protection and preservation.

David Doniger: And Natural Resources Defense Council challenged one of the first of these rollbacks, a change in the definition of an air pollution source.

Lisa Graves: That’s right. In the original 1984 case, Chevron USA, Inc. versus Natural Resources Defense Council, Inc., Chevron deference was used to help the right wing agenda. It allowed the EPA under the Reagan administration to interpret the Clean Air Act in a way that made it easier for factories to pollute.

Ronald Reagan: As Teddy Roosevelt put it, conservation means development as much as it does protection. Quality of life also means a good job, a [00:10:00] decent place to live.

Lisa Graves: And for a while, it was just another part of the legal landscape, something both parties used when it was convenient.

David Doniger: It was a neutral doctrine. If a statute had a range of meanings, and a president who wants to do more to implement the public health and safety laws, for example, the agencies could interpret those terms more expansively.

Lisa Graves: Likewise, for Republican administrations, that didn’t like certain regulations or environmental protections or whatever, they could then interpret laws as narrowly as possible.

David Doniger: So it was neutral, but what has happened in the last 10 years is there’s a very concerted campaign by the Federalist Society types, by conservative law foundations funded by big, very conservative billionaires to recast this.

Now it’s an attack on government. [00:11:00] Altogether,

Lisa Graves: but some things have changed since the days of Ronald Reagan. First two out of the last three presidents have been democratic much to the chagrin of big industry and the policy makers it funds in Washington DC

David Doniger: whether it’s pollution or food safety or worker protections or protections of shareholders in, in the stock market.

There’s a class of very wealthy, very conservative people out there who would just like to have as. week of government as possible, and they have latched onto Chevron deference as a way to to make government as weak as possible.

Lisa Graves: But there’s been another change as well. The right wing has been packing the courts.

If you’ve been listening so far, you’ve heard how the federal society and its elder statesman Leonard Leo have placed an unprecedented number of judges at every level in the federal judiciary, including the Supreme Court.

Chris Hayes: What we have now is the kind of [00:12:00] captured court that Leonard Leo has worked towards for years.

David Doniger: The goal of these groups is to enfeeble the federal government, to make it as weak as possible, because they don’t like to have anybody looking over their shoulders.

Lisa Graves: Although the U. S. Supreme Court has cited Chevron 70 times since 1984, it hasn’t cited that doctrine. In any ruling since 2016, that’s significant ’cause in 2016, we just recently learned from investigative reporters. Clarence Thomas attended an exclusive men’s encampment called the Bohemian Grove Club as a guest of billionaire Harlan Crow, and told the men assembled there that he thought he was gathering the votes to overturn Chevron and thought that he had persuaded Antonin Scalia to join him.

And to top it all, in 2022, the Supreme [00:13:00] Court established a counter doctrine, the quote, major questions doctrine. And it’s kind of an uno reverse card for Chevron. Under that new doctrine, the court can strike down an agency rule if the court deems the issue is a quote, major question that it thinks Congress should resolve rather than defer to the expert agency’s latitude under existing law.

The Supreme Court first used it to hobble the EPA’s ability to require more renewable energy sources for power plants in the 2022 case called West Virginia versus EPA. And then they used it to strike down Joe Biden’s initial student loan debt forgiveness. But the Supreme Court can’t really use the major questions doctrine to strike down the EPA.

The fishery services monitoring fees, one fee for one type of company in one specific fishery is more of a minor matter than a so called major question. But if in this case, the court kills Chevron, [00:14:00] it won’t matter. Big questions, small questions. It will all be federal judges and not agency experts deciding what corporations can and cannot do.

And that’s great news for corporations and billionaires, especially one billionaire in particular, but not for the rest of us. Up next, one billionaire in particular.

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Lisa Graves: There’s a saying in politics, if you see a turtle on top of a fence post, you know at least one thing, he had help. After all, turtles can’t climb fences, someone put him up there. By the same token, can a small New Jersey fisherman with a beef over a niche government policy put himself in a position to up end federal government power as we know it?

And you know what? Maybe. Who knows? But in this case, that fisherman did have help, a lot of help, and especially from one guy, billionaire Charles Koch.

Nancy MacLean: So, Charles Koch is a figure that I think is a challenge for many of us normal people to understand the sheer ambition and the heedlessness of human consequences.

Lisa Graves: Nancy MacLean is a professor of history and public policy at Duke University, and she’s the author of Democracy in Chains. the deep history of the radical right stealth [00:16:00] plan for America. Who’s Charles Koch? He’s the heir to a petroleum and petrochemical empire called Koch Industries, which is the second largest privately held company in the United States.

He, along with his late brother, David, built a massive network of right wing mega donors. and use them to fuel a whole bunch of special interest groups.

Nancy MacLean: He has been building an empire of organizations that his foundations and his colleagues in the corporate world helped to subsidize, and they include now hundreds of influential organizations, groups like the Heritage Foundation, the Cato Institute.

Lisa Graves: Koch also has helped finance the Federal Society and Leonard Leo’s operations. Koch and his brother also launched Americans for Prosperity and its predecessor. AFP is a massively influential right wing interest group. Koch funded groups, especially Americans for Prosperity, often run ads against Democratic candidates in federal, state, and local elections.

Nancy MacLean: What [00:17:00] all of them share in common that is so relevant to the case the Supreme Court will be deciding is a deep hostility to any restraints on corporate behavior, on what Franklin Roosevelt called malevolent corporate actors.

Lisa Graves: They pumped hundreds of millions of dollars into the Tea Party movement. and their groups have lobbied against legislation for workers rights, health care, and environment protections.

Koch has been behind the spread of disinformation about climate science and so much more.

Nancy MacLean: And so Charles Koch has funded organizations that have disinformed the public, uh, conversation, that have spread the libertarian dogma, and that have transformed our political system, virtually wrecking our democracy.

Lisa Graves: Nancy McLean says that even at an early age, Charles Koch was indoctrinated with a libertarian ideology from his father, Fred Koch. Charles also fueled a number of professors in trying to advance his ideology, and one of those professors was [00:18:00] James McGill Buchanan, whom the Atlantic called the architect of the radical right.

Buchanan claimed that government was fundamentally broken, and he taught that the only way to fix it was to change the constitution.

Nancy MacLean: Charles Koch really invested heavily in the ideas of this figure, James McGill Buchanan, who by the 1970s was saying in order to achieve this libertarian agenda, which by then they knew was terribly unpopular with people, um, they would have to have, he said, uh, Constitutional changes of such an order that they amounted to a constitutional revolution.

So this is what Charles Koch was seeking, was this constitutional revolution.

Lisa Graves: So how is Koch achieving that constitutional revolution? It starts at the bottom. Here’s journalist Chris Leonard again.

Christopher Leonard: We gotta remember that this company, Koch Industries, and the guy who runs it, Charles Koch, is deeply rooted in engineering, and their bread and butter is owning and operating the very [00:19:00] complex infrastructure that underpins modern society.

Lisa Graves: Chris investigated Coke and his business operations for years, and he wrote a book about his findings. It’s called Coke Land, The Secret History of Coke Industries and Corporate Power in America.

Christopher Leonard: And I feel that they’ve applied that view to our political system. I mean, I mean, these are really smart, nuts and bolts, granular thinkers.

Lisa Graves: Chris says That one part of Charles Koch’s genius in influencing the law is focusing not just on high profile stages, like presidential campaigns, but on the day to day workings of government.

Christopher Leonard: They are focused on, and they have been focused on since the 80s. Uh, local elections, um, influencing the very complicated process of legislation at the federal level in the Senate in the House, getting into the committees and influencing policy at the, at the, at the level where complex laws are written.[00:20:00]

They’re looking at the system from top to bottom, and their real field of expertise is getting into the pipes, as I call it, the same way they manage natural gas. They’ve been working to influence these systems deep down for decades.

Lisa Graves: Koch, who trained as an engineer, has really sought to re engineer the inner workings of government, and a huge amount of his effort has been focused on the courts.

Again, Koch is one of the men who has been funding the Federalist Society for decades.

Nancy MacLean: So very early on, he invested in groups like the Institute for Justice, which was an extreme libertarian, uh, outfit, and also the Federalist Society.

Lisa Graves: Leonard Leo may be at the helm of the right wing legal movement, but Koch’s money Has helped keep the engines running.

Nancy MacLean: And now we’re in a situation in which a captured Supreme Court with six of the nine justices having come from the Federalist Society, now they are on the verge of deciding something that would achieve a [00:21:00] dream for Charles Coe.

Lisa Graves: That dream, of course, is the death of the Chevron deference doctrine. Coke has been after this thing for years, and now, having captured the Supreme Court, he finally has his shot.

Because the Loper Bright Fisherman case is, in reality, really Charles Coke’s case. Up next, Senator Sheldon Whitehouse outlines the scheme.

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As a lifelong journalist, I couldn’t stay silent as bad actors in politics game the system while others in my profession turn a blind eye. So [00:22:00] every week, I’m holding the news media accountable and encouraging us all to be more than grateful. Fact checkers, we must be fact crusaders. Make sure you’re subscribed to receive my newsletter every Monday.

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Lisa Graves: Last September, Senator Sheldon Whitehouse. The chairman of the Senate Judiciary Committee’s Courts Subcommittee filed an amicus brief outlining the Koch led group of right wing interests backing Mr.

Bright in his phishing squabble. Senator Whitehouse was gracious enough to list them for me.

Senator Sheldon Whitehouse: In the Loper case, there were these groups that filed briefs. Buckeye Institute, Cato Institute, Competitive Enterprise Institute.

Lisa Graves: There was also the landmark group. legal foundation, the Mountain States Legal Foundation, the National Right to Work Legal Defense Foundation,

Senator Sheldon Whitehouse: New Civil Liberties Alliance, Pacific Legal Foundation, and the U.

S. Chamber of Commerce.

Lisa Graves: Every single one was funded by the Koch Family Fortune. [00:23:00]

Senator Sheldon Whitehouse: Every single one funded by another right wing group, the Bradley Foundation. Nine out of ten funded by Donors Trust, which as you know is not A real entity in and of itself. It’s a identity laundering organization. So who knows who, but we know who uses it.

It’s the right wing outfit funded by donors capital fund, which is it’s related entity and half of them funded by ExxonMobil

Lisa Graves: as for Bill Bright himself, his companies being represented by a so called public interest law firm called cause of action. All of whose lawyers are technically working pro bono, but the lawyers representing Cause of Action have a day job.

All of them have been on the payroll of Americans for Prosperity. In fact, Cause of Action’s longest serving board member is representing Koch Industries in a major case in which the state of Minnesota is seeking to hold Koch Industries accountable for its role accelerating the devastating climate changes that are underway.

Senator Sheldon Whitehouse: The fossil fuel industry is Undoubtedly, [00:24:00] the central component of the court capture operation.

Lisa Graves: This isn’t Senator Whitehouse’s first time tracing corporate meddling in court cases. He began pursuing the issue intensely in 2010, after the Supreme Court’s ruling in Citizens United v. Federal Election Commission, which unleashed corporations and the super wealthy to influence elections without any real limits on how much they could secretly spend.

Senator Sheldon Whitehouse: After Citizens United shut down Republicans on climate change, because it allowed the fossil fuel industry to make the Republican party an offer it couldn’t refuse to shut up on, on the climate stuff. That was very frustrating. So I started looking at that and digging into it and looking at what’s going on behind the scenes and looking at the dark money operation around climate denial and all the front groups that the fossil fuel industry used.

And then it began to overlay with stuff that I was seeing at the Supreme Court. That the climate denial groups were turning up in the Supreme Court as well and appeared to be active in the [00:25:00] efforts to pack the court. So I began to see that overlap.

Lisa Graves: He’s discovered instances of groups and companies making up entirely new entities from whole cloth just to stack the deck with amicus briefs to the court.

Senator Sheldon Whitehouse: I’ve actually developed kind of a subspecialty in this regard. In fact, it is so bad. That in one case, a 501c3 corporation that was essentially a twin, a sibling anyway, to a 501c4 corporation. Nobody reported that a whole flotilla of briefs had been filed by groups funded by the 501c4 sibling in a case in which the 501c3 was the actual party, was the actual petitioner.

This whole thing Is a ploy and the justices, I’m confident know it, particularly the right wing ones and the funders, of course, know it. They’re funding all this operation, all this sort [00:26:00] of coordinated fakery, but the public and the other parties don’t know that these folks who are showing up are actually just fronts for the same entity.

Lisa Graves: So how does this coke funded coordinated fakery work? Senator Whitehouse says the machine goes into motion long before a case reaches the U. S. Supreme Court.

Senator Sheldon Whitehouse: This actually begins way earlier with the same Koch funded litigant groups deciding what issue they want to fight, sometimes after the right wing judges have signaled that they’re up for the fight.

Lisa Graves: Yeah.

Senator Sheldon Whitehouse: Deciding what issue they want to fight, then going out and finding a plaintiff of convenience. So like 99 times out of a hundred in real life, the client experiences their injury, has their wrong, and then they go and find a lawyer. And that’s how cases begin. Not these. These begin with the right wing litigation shops go out and finding basically a fake lawyer.

Client of convenience and then they go through the litigation very often doing something [00:27:00] very weird Which is when they get to the district court saying we want to lose quick as a wink rule against us

Lisa Graves: Yeah,

Senator Sheldon Whitehouse: and then at the circuit court level we want to lose quick as you can rule against us Because the whole deal is to move as rapidly as possible with this essentially fake litigation up to the Supreme Court Which is their real target where then the amici curiae come in and all the Dark money funders can get their message to the justices.

Lisa Graves: So Koch’s fingerprints are everywhere in this case. They’re on the plaintiffs. They’re on the third party amicus briefs. They’re on the justices on the bench. At the time of this recording, the U S Supreme court has not passed down a ruling on the two Fisherman’s cases, but right wing judges seem dismissive of the importance of that Chevron precedent.

On the one hand, in oral arguments for Loper Bright’s sister case called Relentless, Justice Amy Coney [00:28:00] Barrett wondered if ending Chevron would put decades of Supreme Court rulings on the chopping block, asking

Amy Coney Barrett: Isn’t it inviting a flood of litigation?

Lisa Graves: On the other hand, Chief Justice John Roberts emphasized that the court he leads has chosen not to apply Chevron for several years and questioned its usefulness.

For Brett Kavanaugh claimed that Chevron was plagued with, quote, internal inconsistency. And Neil Gorsuch quipped that, quote, lower court judges

Neil Gorsuch: Even here, in this rather prosaic case, can’t figure out what Chevron means.

Lisa Graves: I think that’s grossly distorting, but that’s what they said. So, things are looking pretty good for the right wing legal movement’s quest to finally bag the Chevron deference precedent, get it reversed, or limit it in some dramatic way.

In reality, none of this has anything to do with really standing up for the little guy. What are the odds that a law firm [00:29:00] fueled by an oil baron who spent years and hundreds and hundreds and hundreds of millions of dollars to try to dismantle the Chevron? Corporate oversight by government would just take pity on a small fisherman pissed about government fees.

Probably the same odds as a turtle climbing a fence.

Christopher Leonard: I don’t mean to be glib, but, you know, the fishermen really remind me they’re like the legal equivalent of Joe the Plumber.

“Joe the Plumber”: My name’s Joe Wurzenbach. Good to see you, Joe. I’m getting ready to buy a company. Your new tax plan’s gonna tax me more, isn’t it?

Lisa Graves: Remember Joe the Plumber?

“Joe the Plumber”: I’ve worked hard. I’m a plumber. Putting

Lisa Graves: aside that his name was not Joe, and he was not a plumber, he was a small business owner who lambasted Barack Obama about his proposed regulations during a 2000 campaign event. And he became famous for doing so.

Christopher Leonard: It was sort of highlighted as, as the little guy, when in reality, Coke was pushing a very concentrated agenda to protect the interests of large corporations.

Lisa Graves: [00:30:00] In Bill Bright, in some ways, Coke has found another Joe the plumber, but this time for Coke’s judicial agenda. Chris says this is a perfect example of the strategic genius of Coke and his allies. bankrolling the capture of the American court system. They go small. They hunt for small, seemingly sympathetic plaintiffs in small communities and use them as levers for big changes upstream.

Christopher Leonard: You know, the big rotating carnival wheel of the presidential election is important. But it is these nuts and bolts systems of power that need to be influenced by democratic control. You know, we have got to get back into this.

Lisa Graves: Listening to Chris, I’m reminded of a saying among military buffs. Amateurs talk about tactics, but professionals talk about logistics.

Leonard Leo, a big, flashy right wing influencer, he’s strong on tactics. He’s out there schmoozing judges and future judges. Bending the ear of [00:31:00] presidents, landing justices on the bench. But make no mistake, he’s done an excellent job at rigging the courts, and he’s been the main villain of our last three episodes.

But guys like Coke, and his corporate mega donor allies, they’ve mastered another side of the judicial battlefield, the logistics, the banalities, of the evil. After all, Had you even heard of the Chevron deference precedent before this episode? Or did you know how colossally important it’s been for basic checks on corporate greed?

If the answer is no, there’s no shame in that, because the boring stuff, that’s how they get you.

Next time on Grave Injustice, we’re taking on the Trump immunity case, from what it means that the U. S. Supreme Court took the case, to what the possible rulings could mean for [00:32:00] our struggling democracy.

Glenn Kirschner: Thus far, these judges whose impartiality is plainly open to reasonable question are still presiding over these cases.

They have basically caught and killed. The possibility of a timely resolution of the absolute immunity nonsensical argument.

Lisa Graves: We’ll get into it all on Grave Injustice.