Supreme Court Justice Anthony Kennedy’s resignation Wednesday opens a second seat for a President Trump appointee to the Court, only a year after a conservative dark money group spent millions pushing Neil Gorsuch on the bench.

On Wednesday, Kennedy, 81, announced his retirement (effective July 31), after more than three decades on the Court. “It has been the greatest honor and privilege,” he said in a statement.

Shortly after taking office, Trump nominated Gorsuch to replace former Justice Antonin Scalia, who died during President Obama’s last year in office. Senate Majority Leader Mitch McConnell (R-Ky.) had refused to hold a confirmation hearing for Judge Merrick Garland, Obama’s nominee, leaving the seat open for Gorsuch.

Gorsuch appeared on a shortlist of Supreme Court candidates handpicked by the Federalist Society, a group of conservative legal minds that recruited conservative judges for future Trump appointments.

After Gorsuch’s nomination was announced, the Judicial Crisis Network (JCN), a nondisclosing 501(c)(4) nonprofit, pledged $10 million in lobbying and public relations spending to pressure the Republican Senate’s confirmation.

Tax returns obtained by OpenSecrets in March 2017 revealed that JCN was primarily funded by the Wellspring Committee, another nondisclosing politically active nonprofit, which is linked to Ann and Neil Corkery. The Corkerys run a network of conservative “dark money” groups organized to influence public policy.

Leonard Leo, the Federalist Society’s executive vice president, orchestrated the funding for Wellspring and JCN and is linked to BH Group, an obscure Northern Virginia LLC, which donated $1 million to Trump’s inaugural committee last year.

Leo appears to be already working on the Federalist Society’s next Supreme Court endorsement. On Wednesday, he met with Senate Republicans, according to media reports.

Leonard Leo, the influential Federalist Society official who has the White House’s ear on judicial nominations, was the special guest at Senate Republican lunch today. Talked to senators about this year’s SCOTUS term — Seung Min Kim (@seungminkim) June 27, 2018

The Judicial Crisis Network, as well as a coalition of groups linked to conservative megadonors Charles and David Koch, announced plans Wednesday to fund seven-figure ad campaigns in support of Trump’s eventual pick to replace Kennedy, POLITICO and HuffPost reported.

Demand Justice

Demand Justice, a newer liberal “dark money’ group founded as a counterweight to Judicial Crisis Network, launched a digital ad campaign against Trump’s judicial picks in May 2018.

Weeks before Justice Kennedy publicly announced his retirement from the U.S. Supreme Court, Demand Justice launched a “Ditch the List” website and digital ad campaign targeting potential Supreme Court nominees on President Donald Trump’s shortlist. Since the White House confirmed that President Trump will choose his next nominee to replace Justice Kennedy from the list, this campaign is likely to grow in coming weeks.

The group announced that it expects to raise $10 million in its first year and spend on digital ad campaigns in the mid-five figures. However, the group’s structure keeps the actual amounts raised and spent hidden.

Like Judicial Crisis Network, Demand Justice is keeping quiet about where it gets its funding. Unlike Judicial Crisis Network, which follows the well-established “dark money” model of incorporating as a tax-exempt nonprofit organized under section 501(c) of the Internal Revenue Code that is required to file annual 990 tax returns, Demand Justice is a non-tax-exempt entity organized by a fiscal sponsor—making their finances even more opaque.

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According to a May 2018 addition to the list of trade names on file with D.C. Department of Consumer and Regulatory Affairs, Demand Justice was organized by a fiscal sponsor called the Sixteen Thirty Fund. As a fiscal sponsor, the Sixteen Thirty Fund is an existing 501(c)(4) nonprofit organization that that has agreed to provide a legal home and support for Demand Justice as a non-tax-exempt entity.

Donors who steer money to Demand Justice would report donations to the fiscal sponsor rather than Demand Justice itself, adding an extra layer of secrecy that further obscures the source of funds.

Furthermore, Demand Justice is not required to file annual 990 tax returns with the IRS because it is fiscally sponsored by the Sixteen Thirty Fund.

Sixteen Thirty Fund acts as a fiscal sponsor for over 45 initiatives that lack tax-exempt status or do not exist as separately incorporated entities. Because Sixteen Thirty Fund consolidates all of its fiscally sponsored projects into a single tax return, information about the project’s activities, funding, and spending remain largely hidden among all of its other projects.

Although tax-exempt nonprofits are required to disclose spending on lobbying and grassroots operations, Sixteen Thirty Fund merely discloses lobbying spending totals for all of the sponsored initiatives collectively without parsing out which portions of that money were directed through each initiative.

This arrangement makes it virtually impossible to determine who funds the group and how that money is being spent.

Facebook’s new political ad archive shines some light on Demand Justice’s spending.

From the time the social networking platform began archiving ads with political content on May 7, 2018, until the date that Justice Kennedy announced his retirement, Demand Justice ran 41 digital ads on Facebook. Two of those ads cost more than $1,000 but less than $5,000, ten ads cost more than $100 but less than $1,000, and the remaining ads cost less than $100.

Demand Justice’s first three ads have focused on federal appeals court judges on Trump’s Supreme Court shortlist: Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit, Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, and Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit.

Behind the group’s obscure funding structure is a team including former Hillary Clinton spokesperson Brian Fallon, who previously worked at the Justice Department and on Capitol Hill for Sen. Chuck Schumer (D-N.Y.); Gabrielle McCaffrey, a digital organizer for the Clinton campaign; Christopher Kang, a former congressional staffer who played a key role in the Obama administration’s judicial nominee vetting; and Paige Herwig, another Obama administration alum and and former aide to top Judiciary Committee Democrat Sen. Dianne Feinstein (D-Calif.).

Fallon, Demand Justice’s executive director, derided the candidates on Trump’s list in a tweet Wednesday.

Every name on Trump’s shortlist would be another Neil Gorsuch. Democrats should draw a line in the sand now that they will oppose anyone on that list. — Brian Fallon (@brianefallon) June 27, 2018

Researcher Robert Maguire contributed reporting for this story.



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