The current threat to the landmark Roe v. Wade decision on abortion rights — which is widely expected to be overturned by right-wing appointees to the Supreme Court this month — comes in the context of years of counter-majoritarian efforts by dark money groups to strike down the widely popular Roe precedent and then block abortion rights in the states.
In this context, GOP Supreme Court appointee Samuel Alito’s effort to dress up his recently leaked draft decision in the Dobbs v. Jackson case as pro-democracy is riddled with deception. On page two of his draft decision, Alito falsely characterized Roe as striking down the abortion laws of every state, despite the fact that Roe allowed states to impose some abortion restrictions in the last two trimesters of pregnancy, even as it outlawed the total criminalization of abortion. Alito doubled down several pages later, declaring “It is time to … return the issue of abortion to the people’s elected representatives.” What Alito failed to mention is that the Supreme Court on which he sits has been captured by right-wing forces seeking to entrench minority rule over the rule of law — and that they are replicating this process at the state level.
This agenda has been decades in the making. At the center of the story is Leonard Leo, the far right lawyer and Federalist Society fundraiser behind the right-wing capture of the Supreme Court that paved the way for the likely fall of Roe.
As one of Leo’s former public relations staffers described it, “He figured out twenty years ago that conservatives had lost the culture war. Abortion, gay rights, contraception — conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.” Leo played a key role in Alito’s elevation to the Court 15 years ago and then became former President Donald Trump’s “judge whisperer,” hand-picking Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch for Trump’s list of Supreme Court nominees.
The Federalist Society is just one cog in Leo’s dark money network that has raised more than $580 million in recent years via a dizzying array of nonprofits and pass-through funds financed by secret wealthy donors.
The Judicial Crisis Network, another major group in Leo’s network, has donated heavily to organizations like the Republican State Leadership Committee and the Republican Attorneys General Association, which focus on securing control of state seats of power to help them solidify their regressive agenda. These groups have been preparing for a post-Roe United States by targeting two kinds of officials who will be central in efforts to ban abortions at the state level: state judges and attorneys general.
Anti-Choice Dark Money Is Flooding State Courts
Though often overlooked, state courts will play a decisive role in the scope of Americans’ reproductive rights if Roe is overturned. A State Supreme Court, for example, may rule that a state’s constitution protects abortion rights for its residents, as the courts in Kansas, Montana and five other states have done.
Over the last decade, special interests and the politicians who serve them have sought to exert more control over the judicial branch because it has ruled in ways they dislike. Politicians in 35 states introduced more than 150 bills that would have “politicized or undermined the independence of state courts,” according to analysis by the Brennan Center.
One of the tactics employed largely by Republican legislatures has been to inject partisanship into judicial selection by eliminating nonpartisan judicial nominating commissions. Another has been to add party affiliation to candidates in judicial elections, where even a million dollars in ads by a special interest group can enormously overshadow the spending by the candidates themselves.
At the center of the effort to control state courts by packing them with ideological partisans rather than experienced judges known for their fairness is the Republican State Leadership Committee.
The Republican State Leadership Committee (RSLC) is a national “527” electoral group that calls itself the “largest organization of Republican state leaders in the country.” RSLC, which has become one of the largest outside spenders influencing key state court elections, launched its so-called “Judicial Fairness Initiative” (JFI) in 2014 to help GOP-aligned state judicial candidates.
In 2022, 32 states are holding elections for State Supreme Court seats, with 87 of 344 total seats up for election. In February, RSLC-JFI announced its plans to break its previous spending records, meaning it will drop several million dollars on court races. A recent report from the Brennan Center pegged RSLC’s court spending between 2019 and 2020 at $5.2 million.
RSLC’s major funders include the U.S. Chamber of Commerce, the tobacco industry, and some of the largest corporations in the world, like oil baron Charles Koch’s Koch Industries.
Another of RSLC’s top donors is far right lawyer Leo’s Concord Fund (the formal legal name of Judicial Crisis Network), which has made big cash transfers to the group — more than $6 million from 2012 to 2020 — and was its biggest funder in 2018.
Though that may not sound enormous, its effect is consequential because of how the funding is deployed. We’ve tracked RSLC’s playbook for years: to move a million dollars or more to JFI for last-minute political ads just after the primary fundraising disclosure deadlines in a state. Those cash bombs spent in the week before the general election — which the judicial candidates they target do not have the time or cannot raise the funds to effectively counter — have won seats for RSLC’s right-wing picks for the bench.
RSLC has already run ads this year in North Carolina, where control of its highest court is on the line. North Carolina is one of the few southern states which currently does not have severe restrictions on access to abortion.
The anti-choice right has seemingly keyed into this effort to capture state courts because they regard independent courts as a roadblock to their agenda to outlaw abortion.
In Montana, Republican Attorney General Austin Knudsen has worked with the state GOP to smear the state court’s reputation over rulings they dislike, including on abortion. The state courts recently blocked their effort to impose the election of judges by district instead of statewide elections, which would in effect have been a judicial gerrymander to give right-wing districts disproportionate representation.
AG Knudsen has even called for the court to overturn its landmark Armstrong v. State ruling from 1999, which protects the right to abortion in the Montana constitution. In an unprecedented move, Knudsen, along with Montana Gov. Greg Gianforte, Sen. Steve Daines and the state GOP, have now thrown their weight behind James Brown in the Supreme Court race to unseat Montana Supreme Court Justice Ingrid Gustafson. Brown previously represented a dark money group that grossly violated numerous anti-corruption laws in Montana.
Jeff Laszloffy, the president of the Montana Family Foundation — a state-level affiliate of the anti-LGBTQ Christian dark money organization Family Policy Alliance — called for the state court to be replaced in order to undo Armstrong after Montana’s March for Life in January 2022. “We [marched] over to the court … to put the court on notice: We understand that Dobbs could go our way.… We will use decisions that are rendered by judges across the state … in our efforts to get pro-life judges elected in the next election cycle,” Laszloffy said.
In Kansas, another state where the State Supreme Court has protected the right to seek an abortion, the right wing has also tried to undermine judicial independence by attempting to change how justices are selected. Kansas’s selection system is widely considered effective at insulating the court from political meddling or public backlash over rulings.
But two state constitutional amendments, nearly placed on the ballot this year by the right-wing dominated state legislature, would have replaced the merit-based system, opening the floodgates to outside spending like the cash bombs from RSLC. Kansas Family Voice, a Christian right dark money group opposed to abortion and LGBTQ+ rights, backed the measures.
Following failed efforts to remove sitting justices through anti-retention campaigns earlier this decade, the Kansas GOP and anti-choice groups have pivoted to an even more extreme strategy: circumventing the court’s authority altogether by backing a ballot measure that would overturn its 2019 ruling protecting the right to abortion. Right-wing religious groups have launched a “Value Them Both” PR campaign to support the ballot measure ahead of voting in August. It had raised over $1.2 million as of February 2022, the majority of which has come from large Kansas churches.
The Brennan Center documented 65 bills in 28 states last year that “would have either enabled the override of court decisions or prohibited state officials, including judges, from enforcing particular laws or court decisions, especially those related to abortion or guns.” This year is slated to see the highest number of statewide initiatives on abortion since 1986.
State Attorney General Races Take on a Renewed Urgency
Dark money groups on the right are also attempting to influence the selection of the highest law enforcement officer in key states. In a post-Roe nation, state attorneys general would have broad latitude over how state abortion bills are interpreted and whether or not they are enforced.
For example, Wisconsin’s Democratic AG Josh Kaul has vowed not to enforce his state’s archaic 1849 law banning nearly all abortions, and Michigan’s AG Dana Nessel has said the same of her own state’s ban, which was adopted in 1931.
State attorney general races have attracted significant corporate and dark money cash, much of which has been through the Republican Attorneys General Association. This year, the Republican Attorneys General Association plans to spend nearly $700,000 in a last-minute ad blitz to unseat AG Kaul. In 2018, the Republican Attorneys General Association spent nearly $3 million against him. (It also launched an attack ad against AG Nessel during her 2018 campaign.)
The Republican Attorneys General Association — a pay-to-play group created more than two decades ago out of RSLC — essentially sells access to Republican state attorneys general. Its 527 status allows it to take in unlimited sums from corporations, dark money groups and individuals, which it then uses to help Republican candidates for AG win elections. The Republican Attorneys General Association’s corporate donors often have major financial interests in cases brought and defended by the same AGs whose political ambitions they are funding.
Since it became legally distinct from RSLC in 2014, the Republican Attorneys General Association’s largest contributor has been far right lawyer Leo’s Concord Fund/Judicial Crisis Network, itself a darkly funded operation that passes through millions from its secret donors. It has received more than $14 million from the group, including $1 million in the first quarter of 2022 alone.
The so-called “Rule of Law Defense Fund,” the 501(c)(4) arm of the Republican Attorneys General Association, has also received significant funding from Judicial Crisis Network. The fund helped organize the rallies that culminated in the January 6 insurrection, as first reported by Documented. In a robocall on January 5, it told listeners, “At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal.”
Democrats currently occupy 24 of 51 attorney general seats, and 30 seats will be up for election in 2022. Given Leo’s role in raising funds for the Republican Attorneys General Association, restricting abortion — as well as limiting regulation of corporations — will doubtless be a key part of their agenda to capture these offices in the upcoming elections.
The takeover of state courts and attorneys general posts is a longstanding effort by dark money groups, but Roe is likely just the beginning of its pernicious payoff. Alito’s leaked opinion indicates a hostility to other core rights and freedoms, including same-sex marriage, mixed-race marriage, and even access to contraception.
The central notion of fundamental rights is that they are essential and protected so they cannot be overcome by the whim of a mere majority or an impassioned effort by reactionaries. But the right-wing judges in control of the Supreme Court and the dark money groups that helped install them appear determined to destroy Americans’ rights to their most intimate decisions, and more.
The silver lining is that the expected fall of Roe has pulled back the veil on the anti-democratic forces trying to reshape the judiciary and has illustrated the power of oft-overlooked state offices. Alito’s gambit to “let the states decide” may prove to be the spark for a stronger movement against the corruption of dark money and for a more democratic political system that will protect against assaults on reproductive justice and fundamental freedoms in all 50 states.
True North Research Executive Director Lisa Graves contributed to this article.