Outside Money Fuels Court Fight Amid Calls for Kyl Not to Vote

Kavanaugh denounced money spent against him, but lots is being spent on his behalf

From left, Senate Majority Leader Mitch McConnell, R-Ky., Supreme Court nominee Brett Kavanaugh, Vice President Mike Pence, and then-former Sen. Jon Kyl, R-Ariz., who was Kavanaugh's sherpa at the time, meet in McConnell's office in the Capitol on July 10, 2018, the day after President Donald Trump nominated Kavanaugh to the Supreme Court. (Bill Clark/CQ Roll Call/POOL)

Supreme Court nominee Brett Kavanaugh denounced the “millions of dollars in money from outside left-wing opposition groups” during his testimony Thursday about sexual assault allegations, but he didn’t mention the millions spent by groups backing him.

The Judicial Crisis Network, the leading conservative nonprofit that is running advertisements in support of Kavanaugh’s confirmation, has spent about $12 million on the effort, according to sources familiar with the group — already more than the $10 million it spent in last year’s confirmation of Justice Neil Gorsuch.

The Judicial Crisis Network, as a 501(c) (4) tax-exempt social welfare organization, does not need to publicly disclose its donors. It does, however, report its federal lobbying, which last year included paying Sen. Jon Kyl, R-Ariz., who was a lobbyist at Covington & Burling until he returned to the chamber, replacing the late Sen. John McCain in September.

Kyl’s past paid lobbying for the Judicial Crisis Network, along with his unpaid role as Kavanaugh’s “sherpa” during this year’s confirmation process, has prompted some ethics experts and liberals to call on Kyl to recuse himself from voting on Kavanaugh’s nomination. Other experts in Senate ethics say Kyl’s past work is unlikely to trigger an actual conflict of interest as defined by the chamber’s rules. Kyl did not work for the Judicial Crisis Network in 2018.

A spokeswoman for Kyl did not yet provide comment.

In light of Kyl’s “role in guiding Judge Kavanaugh through the confirmation process, he should recuse himself from the final vote,” said Meredith McGehee, executive director of the campaign finance overhaul group Issue One.

Jeff Hauser, a former senior AFL-CIO official who runs the Revolving Door Project at the Center for Economic and Policy Research, said he found Kyl’s volunteer work for Kavanaugh troubling as well as the newly returned senator’s previously paid gig for the Judicial Crisis Network.

Last year, during the Gorsuch confirmation, Kyl’s then-firm disclosed collecting $215,000 in fees from the network, according to congressional lobbying reports; Kyl was one of two lobbyists from the firm working for the client, those records show.

Though “Kyl may have not had a specific client to bill for his lobbying work on Kavanaugh’s behalf, a ‘sherpa’ is just a fancy euphemism for a senior lobbyist,” Hauser said. If Kyl intends to recuse himself from issues that involve such former clients as defense contractor Northrop Grumman, “he should be recusing himself from voting on his recent ‘pro bono’ client, Brett Kavanaugh,” Hauser added.

In the fight over Kavanaugh’s confirmation, which has been delayed as the FBI investigates allegations of sexual misconduct during the nominee’s high school and college years, every senator’s vote is likely to matter, making the stakes over Kyl potentially high.

To recuse or not to recuse

Robert L. Walker, of counsel with the law firm Wiley Rein, is a former chief counsel and staff director for the Senate and House ethics committees. Should Kyl’s previous work for the Judicial Crisis Network or his role as unpaid sherpa for Kavanaugh force the senator to recuse himself from the vote? Walker said: “The answer is absolutely not.” He said there was no indication that a financial stake was at issue, and said the Senate rules aren’t particularly strict when it comes to conflicts of interest.

Another lawyer who specializes in ethics and lobbying matters, Chris DeLacy of Holland & Knight, said Kyl should ask the ethics panel, which is the only entity that could “authoritatively” determine whether a potential conflict exists. DeLacy said he would expect the committee to find no such conflict.

A Senate Ethics Committee official did not respond to a request seeking comment.

“While the Kyl situation is interesting and somewhat unique, it does not appear he has an actual conflict of interest under either Senate rules or federal law. The conflict of interest rules apply while serving in the Senate and afterward,” DeLacy said. “My read of the Kyl situation is that those who are insisting he must recuse himself from the Kavanaugh vote are motivated more by an interest in defeating the nomination rather than any serious ethics concerns.”

Some see irony in Kavanaugh’s complaint about dark money. Those in favor of stronger campaign finance regulations raised concerns about Kavanaugh’s nomination from the get-go, given that the Supreme Court has played such a pivotal role in the nation’s political money rules in recent years with landmark cases such as Citizens United v. FEC in 2010.

“There’s little question where Judge Kavanaugh stands on campaign finance,” Rick Hasen, a professor who focuses on election law, wrote on his blog on Sept. 6. “He’s likely to vote to strike down even individual contribution limits, and already created a gaping hole in the rules meant to limit foreign money in U.S. elections.”

Political money circus

Given what’s at stake, groups on both sides of the debate have invested heavily.

While the Judicial Crisis Network has been funding pro Kavanaugh ads, liberal groups such as Demand Justice, the American Civil Liberties Union and NARAL Pro-Choice America, an abortion-rights organization, have been running ads against Kavanaugh’s nomination.

“Deep-pocketed, anonymous special interests on both sides of the political divide are pulling out all the stops in this high-profile fight for a Supreme Court seat,” said Michael Beckel, research manager at Issue One, McGehee’s group. “The public does not know the identities of the donors bankrolling the major conservative and liberal groups behind the deluge of ads touting and criticizing Judge Kavanaugh.”

The nominee himself expressed his frustration during his testimony Thursday when he called it “a calculated and orchestrated political hit” fueled by millions of dollars from his opponents in liberal groups.

“This is a circus,” Kavanaugh said. “The consequences will extend long past my nomination. The consequences will be with us for decades.”

Two White House spokespeople did not respond to a request for comment about whether Kavanaugh had similar concerns about the spending on his behalf by conservative groups such as the Judicial Crisis Network in the confirmation battle.

Todd Ruger contributed to this report.

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