Updated: New material has been added to this article since its original publication on 3/23.
It was a cold winter night in Washington, D.C., not long after President George W. Bush won a second term, and the mood at the upscale Italian restaurant was downright celebratory.
The most prominent guest was Supreme Court Justice Antonin Scalia, but his table also boasted a mix of high-powered conservatives, including some deep-pocketed donors. Among the elite were Federalist Society executive Leonard Leo, fundraiser and lawyer Ann Corkery, and California real estate magnate Robin Arkley II. “The big prize was to sit next to Scalia,” quipped one attendee at the soiree, adding that Arkley was one such lucky winner.
As it happened, the bash coincided with the birth of a new judicial advocacy outfit that Corkery was instrumental in launching, and Arkley in funding, according to conservative sources familiar with the events. The Judicial Confirmation Network (JCN), set up as a 501(c)(4) “social welfare” group that doesn’t disclose its donors, would prove to be a crucial player in drumming up support for Bush Supreme Court nominees John Roberts Jr. and Samuel Alito Jr.—eventual allies for Scalia on the Court’s right flank.
In the years since, JCN’s modus operandi and battlegrounds have shifted—particularly since Barack Obama won the White House, which prompted the group to sound the alarm and change its name to the Judicial Crisis Network. In the ensuing years, not only has it fought to block Obama’s nominees to the high court, but it has spent millions to sway state judicial elections and attorneys general races, helping to uphold state laws backed by conservatives, nurture like-minded talent in the states, and advance pro-business, limited-government legal agendas aligned with its donors’ leanings.
To expand its influence in state elections, JCN has emerged as a pipeline for secret money to other, better-known dark money groups like the Wisconsin Club for Growth and the American Future Fund which, in turn, have spent big bucks in state Supreme Court and AG races.
JCN heightened its focus on AG races last year when it pumped $1 million in secret money into the Republican Attorneys General Association, making it the third-biggest contributor to RAGA and helping the GOP pick up three new slots so that it now controls the majority of state AG posts.
JCN’s pivotal part in the surge of spending on court elections has received scant attention. But in 2012, it dished out more than $2 million in court races in Michigan alone—half of that in a single down-ticket state circuit contest, according to the Michigan Campaign Finance Network. And over the last two years, the organization contributed a minimum of about $2 million to groups that were involved in 2014 state judicial elections and efforts to influence how judges are chosen. Recipients of JCN checks included the many-tentacled Republican State Leadership Committee, which for the first time invested in court races around the country, spending more on them than any other outside group.
More broadly, in the last election cycle TV ad spending in state Supreme Court elections jumped to at least $13.8 million, according to a preliminary tally by the nonprofit Justice at Stake Campaign. Outside groups, both conservative and liberal, accounted for an estimated $4.9 million of that, or more than 35 percent—a greater share than ever before.
The sharp rise in judicial election spending by JCN and other groups on both sides of the political aisle troubles some judicial candidates who have been targeted. “To the extent that judicial campaigns start looking like other campaigns, there’s a risk that judges will be perceived as having a political agenda,” Sam Ervin IV, a North Carolina Supreme Court justice, told The Daily Beast. Ervin, who was elected in 2014 and is the grandson of the celebrated senator who led Congress’s investigation of the Watergate scandal, lost an earlier race in 2012 after a spending blitz by several outside groups totaling almost $2.6 million, much of it dark money including $75,000 from JCN. “The public is better served, in an environment where judges are elected, if they know the source of the funding for those campaigns,” Ervin, a Democrat, added.
To fill its own coffers, JCN has increasingly relied on funding—to the tune of nearly $4 million, according to IRS documents—from another non-disclosing group, the Wellspring Committee, that’s run by Corkery and was founded seven years ago with the help of conservative donors in the network led by billionaire brothers Charles and David Koch. Corkery’s entree to that rarefied network came via JCN supporter Arkley, an early attendee of their famed retreats. And Ann Corkery and her husband, Neil—who is JCN’s treasurer—are central figures in a cluster of other nonprofits, according to IRS documents.
A fast rise
JCN’s early niche entailed working in tandem with a well-organized conservative coalition—in which Leo, the Federalist Society’s executive vice president, was a key player—to ensure that Roberts and Alito won Senate confirmation. To that end, JCN spent hundreds of thousands of dollars in 2005 and January 2006 on radio and online ads, as well as on grassroots efforts, to shape public opinion. One example: The group ran a radio ad blitz in late 2005 in Arkansas, where the two Democratic senators’ votes were considered in play, using Christmas themes and an appeal from a black minister.
Well-connected consultants helped JCN get things up and running. One was Gary Marx, a rising social conservative star who Corkery recruited to became the group’s executive director, according to a well-placed source.
Another was New York lawyer Wendy Long, a former clerk for Clarence Thomas. She left the law firm Kirkland & Ellis and signed on as counsel to JCN, becoming the organization’s face on cable news and buttressing its legal bona fides.
But mostly, JCN’s early rise was attributable to Corkery’s ability to rope in a few big donors. “Ann is very good at cultivating relationships and capitalizing on them,” a conservative source observed.
Robin Arkley, the president and CEO of Security National Corp. who had tapped Corkery to be his political liaison and senior advisor, became a key underwriter of JCN’s operations, to the tune of the high six or low seven figures, sources say. The pair went to some of the early fundraising and policy retreats held by the Kochs—events that now draw a glittering cast of wealthy allies and conservative stars to raise millions for the brothers’ network of politically active groups. Arkley was also a financial backer of the Federalist Society. “Arkley helped put Ann in play” as a liaison to funding for advocacy groups on the right, said one conservative.
Corkery had a breakthrough year in 2008. Koch operatives gave her the reins to their fledgling Wellspring Committee, a dark money conduit that began pumping funds to other dark money Koch-backed groups like Americans for Prosperity. At the same time, Corkery served as a finance vice chair for Mitt Romney’s 2008 presidential campaign.
Though Corkery’s most direct Koch ties frayed after the ’08 elections and Arkley’s wallet took a hit in the financial crisis, according to sources and reports, Corkery mined other big donors she’d been courting for Wellspring, such as John Templeton Jr., a Pennsylvania philanthropist, and New York hedge fund mogul Paul Singer, conservative sources said.
Conservative and business groups had been pouring money into state court elections through the early 2000s in order to produce a friendlier legal climate—one that curbed tort liability for corporations, for example. Smart marketing and intellectual heft provided by Leo’s Federalist Society helped them notch significant gains. From 2000 to 2009, business and conservative groups spent more than twice as much on state court elections as plaintiffs’ lawyers, unions, and liberal groups—$26.3 million to $11.9 million, according to Justice at Stake.
Wellspring, followed quickly by JCN, became big players in directly and indirectly funding state Supreme Court races. In 2008, for example, it funneled $200,000 to a Wisconsin group that produced the negative attack ads that helped a conservative eke out a victory over a sitting Supreme Court justice, tipping control of the bench to the right. In 2009, Wellspring grants went to groups trying to change judicial selection methods in Missouri and Tennessee.
In 2010, Wellspring began sending money directly to JCN, giving it and a related organization, the Judicial Education Project, $400,000; an additional $306,000 came in 2011, then $1.5 million in 2012 and $1.4 million the next year. Big grants also went to other organizations playing in judicial politics—including $400,000 in 2011 for Wisconsin Club for Growth, a major actor in that state’s shift to a conservative Supreme Court majority.
Wisconsin Club for Growth was also aided by JCN to the tune of more than half-a-million dollars from mid-2012 to mid-2013 as JCN began to function as a dark money conduit like Wellspring. The Wisconsin group spent close to $400,000 to help win a second 10-year term for Justice Patience Roggensack.
And an investigation into whether Walker illegally coordinated efforts with several groups—including Wisconsin Club for Growth—in the run-up to his 2012 recall vote now depends on a ruling by the state’s justices. The special prosecutor leading the probe has asked at least one—perhaps all four—of the court’s conservatives to recuse themselves because of support they have gotten from the groups. (Given recent history and the state’s weak judicial conduct rules, court observers say that seems unlikely.)
The lower court money bomb
While turning, and keeping, the Wisconsin court conservative was a high priority for JCN and others on the right, the group didn’t spend much cash there directly. But the opposite was true in neighboring Michigan, where JCN laid out more than $2 million on two 2012 court races. About half the money went to an effort to keep law professor Bridget McCormack from sitting on the state Supreme Court, including a last-minute ad accusing McCormack of volunteering to represent terrorists, featuring the mother of a soldier killed in Afghanistan. (McCormack did volunteer one of her law school clinics to represent a Guantanamo detainee, though he was released before the students communicated with him.)
The other $1 million, though, was spent attempting to kick an Oakland County Circuit Court judge off the bench—and JCN’s spending in that race was matched by Americans for Job Security, which had earlier benefited from Wellspring largesse.
Such staggering spending on a lower court contest may be unprecedented, and it was far from clear why the groups were interested. One possible explanation: a funder with an ax to grind.
Who that was may never be known. But “pretty much everyone believed” it to be Manoj Bhargava or a person or entity linked to him, said a Michigan lawyer who had a ringside seat at the time; other attorneys and journalists in the state told The Daily Beast the same thing.
The Indian-born Bhargava, who invented the now-ubiquitous 5-Hour Energy shot, might be seen by some as a walking contradiction. On the one hand, he lived as a monk in India for years and has taken a pledge to give more than half his wealth to charity. But he’s also a fierce competitor who, according to a profile in Forbes, displays in his office cardboard tombstones bearing the names of rivals his company has beaten in court.
A 2012 case before Circuit Judge Phyllis McMillen may shed light on the origins of the campaign against her. Bhargava, through 5-Hour’s parent company Innovation Ventures, was suing a key 5-Hour contractor for allegedly stealing trade secrets. McMillen was presiding over the case. At first she issued a temporary restraining order against the contractor. As facts emerged, though, she lifted the TRO. To allow Innovation Ventures to “crush competitors” unfairly, she said in court February 10, “is certainly not something that’s supported by public policy.”
McMillen was running for her first full term in 2012. That spring, soon after she lifted the TRO, she and her colleagues who were also on the ballot learned they had opposition: a couple of lawyers from Republican Attorney General Bill Schuette’s office. Three non-Michiganders had provided the seed money for their candidacies: Andrew McKenna of Virginia, a Republican fundraising consultant with ties to Bhargava, according to a well-placed source; John Templeton, one of Ann Corkery’s funding sources; and John Bryan of Oregon, a retired oil and chemicals executive who spoke at one of the Koch confabs.
TV ads sponsored by JCN and its dark money ally showed up closer to the election, with some attacking McMillen (one made her appear to have been lenient with a habitual offender) and others praising the challengers. “They were on every half-hour,” McMillen told The Daily Beast. “It was relentless.” There was radio, too, and a torrent of direct mail.
Bhargava did not respond to numerous requests for comment.
In any case, JCN’s Wolverine State crusades didn’t work out too well. McCormack is now a Supreme Court justice and McMillen won her contest, too. In early 2013, she ruled against Bhargava.
Attorneys general become focus
JCN’s surging dark money dollars found a new outlet last year when the network ponied up $1 million to the Republican Attorneys General Association for its 2014 drive to help the GOP capture AG seats in Nevada, Colorado, and elsewhere. That made JCN RAGA’s third-largest donor in a year when RAGA was instrumental in helping Republicans capture enough AG posts that they now hold the majority. RAGA and similar 527 organizations must disclose their donors, but the sources of JCN’s contributions remain in the dark.
On top of that, JCN sent $750,000 to the Iowa-based American Future Fund, which started its own AG project between July 1, 2012, and June 30, 2013, tax filings show—JCN’s largest grant of that fiscal year. In turn, AFF chipped in $680,000 to RAGA last year.
State attorneys general had been moving higher on JCN’s political radar. Policy director and chief counsel Carrie Severino, who succeeded Wendy Long as JCN’s counsel in 2010 and, like her, once clerked for Justice Thomas, wrote in National Review right before the 2012 elections that conservative AGs are “emerging as key leaders in the battle for limited constitutional government.” Many of them, she noted, had joined the challenge to Obamacare, and a number were also fighting the Dodd-Frank financial services overhaul and EPA regulations.
Dark money ties that bind
The JCN spending through RAGA to boost the GOP’s share of AG slots is just one example of the synergies that the network has forged as a dark money vehicle. Other ties binding JCN to various groups it has funded—and received money from—are evident in the comings and goings of personnel, consultants, and board members. For instance, when Gary Marx stepped down as JCN’s executive director in mid-2011, he took a similar post with Ralph Reed’s Faith and Freedom Coalition (a group that Wellspring helped in 2010 with a $250,000 check). Likewise, last year Chris Jankowski became a consultant to JCN after spending several years running the Republican State Leadership Committee until he departed suddenly in early 2014, according to multiple sources. Both JCN and Wellspring had funneled hundreds of thousands to the RSLC, which has helped the GOP chart major gains in legislatures and other state offices. (RAGA had been part of that group but was spun off early last year.)
But JCN’s tightest ties with any group or individual revolve around Ann and Neil Corkery, which meant that Wellspring’s links to JCN were personal as well as political. Serendipitously Ann Corkery’s husband Neil was JCN’s treasurer, a paid part-time gig. The group’s small board also includes Dan Casey, a veteran GOP operative and “the political and PR brains” of that shop, says one source. Wellspring’s board was made up of Ann Corkery and two people the Corkerys knew from their work with Catholic groups.
But in 2011, the ties between these two dark money machines grew even closer when Ann Corkery sacked her two fellow board members at Wellspring and replaced them with her daughter and the son of JCN board member Casey, according to IRS filings and former board members. One of those ousted, treasurer Steven Wagner, said, “I never saw any financial records. I was treasurer in name only.”
In 2012, tax records show that Neil Corkery was not only treasurer of JCN, president of its allied Judicial Education Project, and executive director of a charity called the Sudan Relief Fund, all of which paid him salaries; but he also drew paychecks from at least four other organizations: the anti-gay union National Organization for Marriage, ActRight Action, the Catholic Association Foundation, and Catholic Voices. His total earnings were almost $450,000, and his weekly workload was 105 hours in the first half of the year, the groups' IRS filings show, before dropping back to a mere 80.
Some who are familiar with the groups are dubious about that workaholic schedule—especially at the Sudan charity, where Corkery was paid $235,000 for a supposed 40-hour workweek. Neither Ann nor Neil Corkery responded to phone messages or written requests for comment on this story.
Critics notwithstanding, the board changes at Wellspring a few years ago seemed to spell good news for JCN, coinciding with the two recent years in which JCN received close to $3 million from Wellspring and allowing the network to ramp up its efforts in the states.
And JCN has been otherwise busy, too—churning out, for example, amicus briefs for major legal challenges to Obama administration policies, including the high-profile case that now threatens to undermine key sections of Obamacare which was argued before the Supreme Court in early March.
The group doesn’t always toe the mainstream GOP line: It has at times weighed in against Republicans in what look like internal party spats fueled by donor preferences.
Ultimately JCN looks poised to continue its role as a dark money juggernaut in 2016 in state and federal elections—both directly and via allied dark money and 527 conduits. If JCN’s recent history proves a guide, that means voters going to the polls in 2016 will remain largely uninformed about who’s writing the network’s big checks for ad and grassroots drives to help elect the highest judicial and legal officers in the states, and senators who may well have to approve nominees to fill future Supreme Court vacancies.
Robert Maguire of the Center for Responsive Politics contributed to this piece