The anti-weaponization fund still seems to be a matter of controversy. I argued in the Washington Reporter that the Senate GOP should take the focus off Donald Trump and get down to the brass tacks of stopping all settlement slush funds, which has been a GOP priority for at least a decade. It has been alleged otherwise: “Yes because Dems have been abusing the judgment fund/sue and settle for YEARS to fund their friends. But very few people in the GOP gave a crap until Trump tried to set up a process to make victims of Biden’s DOJ whole. Read into that what you will.” That’s just not correct, and misunderstanding the history can lead to misunderstanding the possibilities for real reform.
There are two distinct but related Democratic abuses of settlements that Republicans have opposed since around the middle of the Obama administration. The first is judgment fund abuse. The marquee examples of that are the Pigford, Keepseagle, Love, and Garcia settlements. That’s where the DOJ enters into a collusive settlement with favored litigants to pay them out from the mandatory-spending judgment fund outside the appropriations process. The second is third-party settlement abuse. That’s when settlements involving federal regulators involve payouts to preferred third-party NGOs by the settling targets, essentially a cy pres problem. The Wells Fargo settlement is the prime example of that, but they also happened with some frequency with environmental regulators. It, too, is an effort to skirt appropriations but at the hands of private parties who are forced to fund left-wing activists. The weaponization fund is mostly in the first category, although it could conceivably have a third-party payout problem depending on how its residual moneys are handled.
It’s simply not so that the GOP didn’t give a crap about this until Trump. During late the Obama years James Lankford’s Stop Settlement Slush Funds Act was a thing. It was cosponsored by Orrin Hatch, Mike Lee, Ted Cruz, John Cornyn, Ron Johnson, and James Inhofe. By the next Congress it had added Jeff Flake, Mike Crapo, and John Kennedy. At the time I was working for Flake and suggested that we use it as our price for cosponsoring the First Step Act jailbreak bill. (He wasn’t interested in potentially poison-pilling Mike Lee and Dick Durbin’s signature legislation.)
The issue died down some during the first Trump administration because Attorney General Sessions issued regulations forbidding the practice. Assistant Attorney General Jeff Clark followed up with prohibitions specific to environmental matters.
Of course Joe Biden made the reestablishment of slush funds an administration priority. It was therefore one of the main lines of attack against Merrick Garland, Lisa Monaco, and Vanita Gupta when they came before the Judiciary Committee. Many members hit them on it. Grassley asked them about it in courtesy calls. Gupta had to answer second-round written questions about it (unheard of in recent years), and her plainly inadequate answers helped predicate the organized Republican filibuster of her markup.
The issue popped up again that September when the Wall Street Journal reported that Garland was going to settle out “family separation” against the ACLU to the tune of $450,000 per affected individual. In other words Garland was going to use the judgment fund to make illegal aliens millionaires. We dug into the judgment fund and concluded there wasn’t much we could do about it legislatively so instead we seeded stories on how outrageous it was that resulted in Biden basically agreeing and putting a stop to the settlement. The ACLU responded that Biden didn’t know what he was talking about, and McConnell and Grassley wrote to Garland inquiring just who exactly was in charge over there. We used the tools at our disposal to stop them.
And the conference was with us — Steve Daines filed an NDAA amendment at the time prohibiting family-separation money settlements. It had 33 cosponsors, from Josh Hawley to Susan Collins. Amendments on slush funds weren’t uncommon under Biden generally. Marsha Blackburn, for example, had one for the American Rescue Plan.
During the back end of Biden, Tommy Tuberville reintroduced the standalone bill — along with Thom Tillis, Tom Cotton, Rick Scott, Cynthia Lummis, Ron Johnson, and Ted Budd.
The House was active on it, too. The House companion bill to stop settlement slush funds by Bob Goodlatte had passed; no Republican voted no. (It didn’t advance in the Senate.) Under Biden, Representative Lance Gooden took over the bill and the Judiciary Committee reported it out. And as Jason Yaworske, a longtime House leadership aide, has pointed out on Twitter, they spent a lot of time digging into the Pigford-style settlements as well.
So it’s simply not the case to say that Republicans didn’t care about the issue until Trump. They weren’t able to stop the practice writ large (although, again, there were some successes) because there wasn’t a path to do so realistically beyond “fight harder” theatrics and shutdown threats.
The current weaponization fund presents just such a path if Republicans are willing to take it. Democratic outrage at the fund puts them in an awkward position. Republican efforts to ban slush funds will make them pick: Do we want money for our clients more than we fear Ed Martin handing money out to our enemies? While the momentum here may have shifted with Trump saying that he’s abandoning the plan, moving to kill all the slush funds is still an opportunity to turn the issue around on Democrats.
What would it look like? Again, there are two related abuses. The easy one to fix is the cy pres abuse which can be fixed with the standard Lankford-Goodlatte-Tuberville-Golden bill. The collusive settlements are harder and would require some legal creativity.
The core issue is that the judgment fund exists for a good reason: The attorney general needs to be able to settle out cases. The issue is how to prevent him from settling out collusive cases. One option is to do what Adam Schiff wants to do here and simply carve out settlements like the weaponization fund by restricting the availability of funds based on facts related to the settlement. That obviously won’t work, but unfortunately it’s an approach the Wall Street Journal editorial board seems to support.
The problem is that any broader legislative restriction will be ignored when Democrats are in charge. One of their pocket district courts will approve the settlement, and no one will disturb it on appeal. At the same time there’s a reason the predicate case for the weaponization fund was brought in Florida: Republicans have jurisdictions, too.
The key to making any reforms not a mere paper promise is meaningful judicial review. Congress could legislate that any settlement relying on the judgment fund with payouts in excess of $250,000 per capita (or whatever) need to be approved by a district judge for being substantially fair, as articulated in statute (e.g. real adversity of interest, lack of ex parte communication, indicia of real negotiation, lack of adverse judicial rulings, etc.). Basically just articulate the things that were bad in Pigford/Keepseagle and the weaponization fund, and say that courts must police that.
Congress should then provide for mandatory appeal of those fairness decisions to a circuit court selected at random (the judiciary has mechanisms for this). The judiciary will howl for a variety of reasons, but the simple fact is that unless a judge in D.C. needs to worry about an appeal in Cincinnati, or a judge in Texas needs to worry about one in Richmond, there isn’t necessarily a legal check here. Congress could even provide mandatory appeals to the Supreme Court for settlements in excess of $1 million per person.
A process like that would provide sauce for the gander, consistent with a decade of Republican policy interests. Simply stopping the weaponization fund is entirely orthogonal to those interests. Republicans should continue to be interested in the issue and take advantage of rare Democratic agreement. Unfortunately most of them probably just want the issue to go away.