Journalist Rob Schilling filed an amended complaint today in his common law right of access lawsuit against Speaker of the House Nancy Pelosi, other senior House officers, the House itself and its Committee on Oversight & Reform. Schilling seeks emails and other records pertaining to the Committee’s use of donor-provided consultants to help guide an investigation of private parties over their political speech.
Schilling initially filed his suit in January of this year. After the House Office of General Counsel (OGC) took the position that only the Committee had the records Schilling sought, but again denied the request to release them, Schilling sent the request which had already been sent to various other offices to them. After the Committee itself denied the request, as it had the requests sent to Pelosi’s Office and others, Schilling added the Committee and the House itself as defendants.
The amended complaint lays out the scheme by which the Oversight Committee brought in former House staff to, naturally, perform work typically performed by House staff, which Schilling asserts is impermissible under House Rules and federal statute. It contains new, intriguing information, including:
* Schilling’s requests pertain to the revealed practice of providing donor-financed services to congressional offices of the kind typically performed by congressional staff, purportedly to help compensate for staff lost due to Congress reducing its and its offices’ staff budget but elsewhere admittedly to help plan a congressional investigation of private parties. This is a practice that was the subject of past, great public interest and ethics complaints filed against, e.g., then-Speaker of the House Newt Gingrich under Rule 24’s predecessor, House Rule 45. In those cases, a non-profit’s employees provided basic office functions for Mr. Gingrich in apparent violation of the prohibition against the use of unofficial resources for official purposes; in this case, the staff work being performed is that of professional staff planning investigative hearings of shared political opponents, with compelled testimonies and subpoenas of private parties. There also is reason to believe this privately-aided, non-legislative investigation instead seeks to engineer a referral to the Department of Justice to assist third-party litigants and the Executive branch.
* Schilling explains how there is no legitimate legislative purpose or legislative activity at play in the Committee’s decision to bring in-house outside parties who provide congressional offices with “consulting services” underwritten by activist donors who desire the pursuit of certain congressional oversight, and in certain ways. Similarly, there is no legitimate legislative purpose or activity when a committee takes those services, and takes affirmative steps toward fulfilling those objectives. This is further still less a legitimate legislative pursuit when, as appears to be the case here, those uses of House resources are to assist third-party litigants, and the Executive branch in fulfilling a political vow.
* Subsequently, the Biden-Harris presidential campaign promised that, if elected, “Biden will instruct the Attorney General to… strategically support ongoing plaintiff-driven climate litigation against polluters”.
* Mr. Schilling believes that the objective of this use of Committee resources by Members and staff, by engaging outside parties to perform work typically performed by congressional staff, is to assist that campaign vow, the pressure to do so which is building. (See, e.g., Lesley Clark, “Biden fails to fulfill pledge on climate lawsuits,” E&E News, January 19, 2022 https://www.eenews.net/articles/biden-fails-to-fulfill-pledge-on-climate-lawsuits/). Schilling argues that the Department of Justice seizing on such a referral is one of the very few options remaining given the climate plaintiffs’ current position, repeatedly made clear in filings all the way to the United States Supreme Court, that these suits themselves which were originally filed in federal court are in fact are purely local matters about which no federal court ought to concern itself.
* Relevant to this, and to the principals within and public interest in these records set forth in his amended complaint, is an October 31, 2020 email, released under California’s Public Records Act, sent from one of the parties who has acknowledged advising the Committee investigation, Phil Barnett, to a law professor serving on the climate-plaintiffs’ legal team. Specifically, three days before the 2020 elections, on Saturday October 31, 2020, Barnett wrote to UCLA Law School’s Ann Carlson, “If Tuesday [Nov. 3, 2020] goes well we should find a time to talk so I can give you an update on some recent positive developments”.
* Schilling states on information and belief that Barnett was referencing plans for this congressional investigation into his correspondent’s legal team’s litigation targets, which he would help plan if Democrats maintained their congressional majority. They did, the investigation ensued, and Barnett, as he and Oversight Subcommittee Chairman Ro Khanna have now acknowledged, helped plan it.
* Schilling notes that the counsel at the time to Mr. Barnett’s organization “Co-Equal,” Margaret Goodlander, soon moved from that position into the Department of Justice in January 2021 as counsel to the Attorney General, in which position she likely would receive any referral to the Department from the Oversight Committee.
* According to news reports, the lead public spokesman on the Committee’s investigation, “[Rep.] Khanna said the committee has enlisted the aid of ‘a lot of people’ involved in planning the Waxman hearings for advice and planning.” Zack Burdyk, “Democrats call for oil company executives to testify on disinformation campaign,” The Hill, September 16, 2021. “The Waxman hearings” are 1994 tobacco hearings after which the Committee leadership are publicly quoted as patterning their “climate disinformation” hearings.
* As detailed in Schilling’s amended complaint, this description of those individuals and other information in the public domain indicate that these people include certain parties whose own website and promotional media describes them as providing donor-financed services to congressional offices of the kind typically performed by congressional staff, in order to help compensate for staff lost due to Congress reducing its and its offices’ staff budget. This is further supported, as detailed herein, by public statements made by donor groups plainly stating that they have given hundreds of thousands of dollars to finance the provision of assistance to “congressional investigations.”
* Schilling argues that information, —including based upon Chairman Khanna’s admissions, other materials in the public domain including statements to the media and a previous written offer by Messrs. Phil Barnett and Phil Schiliro to provide free services to other elected officials to advance the “climate” agenda — that Messrs. Barnett and Schiliro are among the outside parties brought in as consultants to help plan this quasi-judicial pursuit of private parties, with and on behalf of outside parties but conducted under the purported authority of the Congress.
* Schilling argues that information strongly suggests that Messrs. Barnett and Schiliro provided these services through and as part of a group called Co-Equal. The group’s own website and a profile in the New York Times describes the group as making these former staff available as in-kind contributions to congressional offices (https://www.co-equal.org/team), “to consult” on oversight and investigations (Carl Hulse, “Congressional Veterans Pitch In to Rebuild Oversight Muscle,” New York Times, June 22, 2019.
* Co-Equal’s Phil Barnett and Phil Schiliro informed the media earlier this year that their advice to the Committee on this investigation was provided wearing a “different hat” than this group which they founded for the purpose of providing advice to congressional offices to replace that lost by staff budget cuts, and whose website describes precisely the services Rep. Khanna described as does the Times coverage announcing the group’s and its staff’s influence on Capitol Hill in providing these consulting services to congressional offices.
* The 2019 Times story acknowledged that, while this organization is unable to “replace 1,000” staff, it is doing what it can by offering “less than a dozen former staff members” for the purpose by “volunteer[ing] their skill set to the House and Senate as Congress rebuilds its oversight muscle.” The story includes comments from interviews with Messrs. Barnett and Schiliro and is complete with a posed ‘team photo’ of Co-Equal staff on the steps of the Capitol.
* Privately replacing even one staff position lost to budget cuts, or otherwise, is impermissible under House Rules and federal statute. It cannot be regarded as legislative activity to circumvent federal law.
* Co-Equal’s website boasts that the entity was established by Messrs. Barnett and Schiliro — as a project of what media reports describe as a “Democratic Dark Money Juggernaut,” “the ‘mothership’ behind a network of Democratic dark money nonprofit groups” — to provide consulting services to burnish the staffs of congressional allies. (https://www.co-equal.org/need. “Co-Equal can help balance the scales… It can provide strategic advice on the legislative process and oversight. And it can connect congressional offices with experts who can level the information playing field.”)
* This Times story described it as “funded by donors …to consult with congressional aides seeking guidance on messaging or how to move ahead with inquiries.” Hulse, “Congressional Veterans Pitch In to Rebuild Oversight Muscle,” New York Times, June 22, 2019.
* Specifically, Co-Equal’s website acknowledges it operates under the umbrella of Arabella Advisors (“Co-Equal is a project of the Hopewell Fund, a 501(c)(3) public charity. Co-Equal Action, is a project of the Sixteen Thirty Fund, a 501(c)(4) social welfare organization”, and Sixteen Thirty Fund is a part of Arabella (see https://www.arabellaadvisors.com/expertise/fiscal-sponsorship/).
* According to the public record, donors who are underwriting provision of Co-Equal’s services to congressional offices include significant financiers of activist campaigns designed to direct or otherwise influence governmental policy, including, e.g., George Soros and eBay founder Pierre Omidyar. For example, a 2018 document shows a grant of $300,000 from Soros’s 501(c)(4) Open Society Policy Center to Co-Equal Action via Sixteen Thirty Fund to “support work to enhance congressional effectiveness and oversight” by Co-Equal. Omidyar’s Democracy Fund Voice reported another grant of $282,000 in 2019 “to provide… advice that helps members of Congress …conduct effective oversight.” (See also https://www.influencewatch.org/app/uploads/2022/01/democracy-fund-voice-2019-grant-to-co-equal-action.pdf).
* Both of these grants to Co-Equal match Rep. Khanna’s description of the work performed by the parties he also described as having been brought in to assist in planning his climate investigation; that work also is consistent with Messrs. Barnett’s and Schiliro’s 2017 memorandum offering to similarly donate such services to other elected officials (who are not covered by House Rules or, e.g., 31 U.S.C. § 1342); it also is consistent with the services Messrs. Barnett’s and Schiliro assert on Co-Equal’s website that they now also offer to congressional offices, and further is consistent with reporting by the New York Times, with the assistance and input of Messrs. Barnett’s and Schiliro, of what Co-Equal is providing to congressional offices.