How Progressives Hijack Democratic Governance (yet another way!)

Dairy lawsuit challenges prosecution by special interests

Over the past 60-odd years, until the election of Donald Trump, the growth of a massively sprawling bureaucratic-progressive deep state transformed America from a functioning democracy into a dysfunctional authoritarian enterprise using an array of weapons designed to hijack power from its constitutional seating.

The explosion of regulations, the rise of independent agencies, the radicalization and monopolization of education, the flow of federal grants to left-wing nonprofits—all these and more have served to collectivize power for a progressive elite. Now, a lawsuit by Wisconsin Dairy Alliance and the Venture Dairy Cooperative has spotlighted yet another tactic progressives use to bypass democratic governance—the use by state attorneys general of special-interest private attorneys to carry out targeted prosecutions of disfavored industries and companies.

I have reported before about the many ways in which federal agencies funnel grant dollars to nonprofits to fund their work on behalf of the progressive-bureaucratic mission. This tactic flips that animal on its head: The Department of Justice gets a politically charged in-house attorney, called a fellow, to work as an attack dog; more, instead of the DOJ paying for outside counsel (thus assuring accountability and oversight), the special-interest attorney’s nonprofit pays the attorney to work at the DOJ (thus assuring that the DOJ pursues a private special-interest agenda).

Wisconsin is one of 10 states using this arrangement. In February, the dairy groups sued attorney general Josh Kaul, contending that a 2021 agreement between the state Department of Justice and New York University’s (NYU) School of Law is illegal and unconstitutional. Under that contract, NYU’s State Energy and Environmental Impact Center employs an attorney and pays that attorney to work in the DOJ as a Special Assistant Attorney General (SAAG) for environmental litigation.

The dairy groups correctly say this arrangement violates due process and equal protection guarantees, while improperly delegating prosecutorial power to an outside, privately funded interest. According to the dairy groups, Kaul has effectively outsourced environmental litigation to an out-of-state special-interest group, and—guess who—the dairy industry is among her targets.

Kaul, of course, sought to have the whole matter dismissed, but those hopes were dashed last week when a Calumet County circuit judge refused to do so, saying the parties clearly have adverse interests, especially because NYU’s job is to enforce and prosecute environmental issues impacting the dairy industry.

“Plaintiffs have a legal interest to contest governmental actions leading to what they believe is an illegal expenditure of taxpayer funds,” the judge wrote in his order. “The DOJ’s expenditure of taxpayer funds, such as those to pay for the fellow’s travel expenses, bar dues, and court fees, gives plaintiffs a legally protected interest to challenge the DOJ’s contract with NYU/the fellow.”

Venture Dairy Cooperative’s executive director, Kim Bremmer, said the case could now focus on the merits of the matter, which the groups contend amount to a dangerous outsourcing of Wisconsin’s law enforcement powers.

“Today’s ruling moves us one step closer to holding AG Kaul accountable for his decision to cater to out-of-state interests ahead of Wisconsin citizens and businesses,” Bremmer said. “We look forward to ending DOJ’s unlawful and harmful practices.”

Yet another pipeline

The dairy groups’ complaint was blunt: “This case presents the question whether the Wisconsin Department of Justice is for sale.”

Apparently it is, but then, these are Democrats, so no real surprise. Specifically, the complaint argues that the SAAG exercises the powers of a state attorney but is paid exclusively by the Center and its special-interest backers, with her services offered to the state seemingly at no cost, except perhaps for some job-related expenses.

“But nothing in life is free,” the complaint states. “The Center’s mission is to incentivize ‘state attorneys general [to] defend[ ], enforce[e], and promot[e] strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy,’ and NYU requires that DOJ use the SAAG’s services to further those goals.”

In fact, the complaint states, Michael Bloomberg, the billionaire donor to far-left causes, founded the NYU Center in 2017 to push states to pursue left-wing programs and policies. Funding comes from Bloomberg Philanthropies.

“On May 21, 2024, the Milwaukee Journal Sentinel reported that a SAAG working in DOJ was, in fact, employed by the Center rather than the state of Wisconsin,” the complaint stated.

And that’s illegal, the groups contend.

“The attorney general and DOJ’s decision to create a SAAG position vested with power and then fill it with an attorney who is employed by a third-party special interest group violates Wisconsin law and is repugnant to public policy,” the complaint asserts.

It would equally repugnant if a Republican attorney general did the same thing, the groups declared.

“It is not difficult to imagine how a ‘Second Amendment Fellow’ deputized as a SAAG by the Gun Owners of America would be received,” the complaint stated. “Or an ‘Anti-Abortion Fellow’ empowered to act on behalf of the state while being paid by the National Right to Life. The illegal agreement challenged here is no different in principle.”

The one silver lining in all this is that when Trump finally cleans the bureaucratic house, they can all find jobs in the laundry business because they are very good at it. While one bureaucrat’s hand is busy greasing the skids to deliver tax dollars in the guise of grants to woke nonprofits for their ideological handiwork, the other hand is laundering cash back to the government via other equally radical nonprofits to assist in their environmental prosecutions.

This is bureaucratic corruption at its finest. It’s a new bossism, in fact, a bureaucratic bossism where bureaucrats, woke politicians, and special interests still gather to make their deals with the devil, only now, instead of meeting in smoke-filled back rooms, they gather in the gray, paper-weighted offices of bureaucrats, where the only visible smoke will be the smoke they are planning to blow up our you-know-what.

You’re not the only one

Wisconsin Dairy Alliance and the Venture Dairy Cooperative aren’t the only ones who have noticed these arrangements between NYU and various state attorneys general.

Indeed, their lawsuit arrived at a moment of national scrutiny. In July, the House Oversight and Government Reform Committee, chaired by Rep. James Comer (R-Kentucky), launched an investigation into the contractual arrangements, and Comer sent a Freedom of Information Act request to Patricia Harris, the CEO of Bloomberg Philanthropies, and to the NYU Center’s executive director, Bethany Davis Noll, in which he raised ethical questions and concerns about what he called the independence of state governments.

In the letters, Comer alleged that the fellows use their positions to file activist lawsuits and lobby for burdensome regulations.

“For example, according to agreements between NYU and the Office of the Minnesota attorney general, the State Impact Center’s fellows are included in ‘strategy discussions and court appearances,’” Comer wrote. “The founder of Bloomberg Philanthropies, Mr. Bloomberg, has provided hundreds of millions of dollars for partisan climate-focused advocacy campaigns and has a clear interest in influencing actions by state attorneys general.”

What’s more, Comer alleged, the Bloomberg-NYU program follows a playbook similar to that used by Bloomberg and like-minded activists at the Sierra Club, where Bloomberg provided $80 million for the Sierra Club’s “Beyond Coal” campaign to shut down every coal-fired plant in the country.

“Many of the projects that the State Impact Center’s fellows lead fit squarely within Bloomberg Philanthropies’ ‘Beyond Carbon’ and ‘Beyond Petrochemicals’ campaigns,” he wrote. “The State Impact Center’s advisory council also includes executives from the ‘green’ energy industry who have an interest in undermining fossil fuels.”

Beyond Coal used Bloomberg’s donation to hire lawyers to argue in courtrooms for the closure of the plants, Comer also alleged. And while Bloomberg disguises his donations as philanthropy, Comer wrote, “the State Impact Center is a mechanism for him to skirt legislative bodies and effect partisan policy.”

And partisan the assistant attorneys general are, Comer charged.

“There are no known examples of State Impact Center fellows working for Republican attorneys general offices,” he wrote. “The State Impact Center’s database strongly indicates that the program prioritizes Democratic policies, such as protecting Biden administration regulations, attacking Trump administration executive orders, and targeting unfavored industries such as natural gas and petrochemicals.”

According to InfluenceWatch, the Center has special assistant attorneys general in 10 states and the District of Columbia: Delaware, Connecticut, Illinois, Maine, Minnesota, New Mexico, New York, Oregon, Washington, and Wisconsin.

The danger, Comer concluded, is that the program “undermines faith in the American legal system,” turning attorneys general into conduits for partisan billionaire money.

The billion-dollar question

The real question is, even though the practice is obviously partisan, obviously ethically compromised, and obviously anti-democratic, are the contracts actually illegal?

Christopher Horner of the Competitive Enterprise Institute analyzed that and other aspects of the practice as far back as 2018, in a piece called “Law Enforcement for Rent,” in which he tracked the history of the scheme, using years of open-records requests to establish a paper trail.

“Those public records reveal the anatomy of what began as an ‘informal coalition’ of AGs to use the legal system in pursuit of an overtly political agenda in coordination with activists and plaintiffs’ lawyers,” Horner wrote.

One thing the contracts allow an attorney general to do is pursue litigation for which it would otherwise not have the resources, Horner wrote.

“The New York OAG openly boasted to a donor that its ‘need’ for privately funded prosecutors was driven in part by the ‘significant strain on staff resources’ that had been caused by its ‘non-litigation advocacy’—that described as its having ‘led’ the resistance to the Trump administration,” he reported.

Among the projects for the privately-funded prosecutors? Building cases to seek compensation from industries for supposedly having caused global warming.

“This is the most dangerous example of a modus operandi we have found,” Horner wrote. “It uses nonprofit organizations as pass-through entities by which donors can support elected officials to, in turn, use their offices to advance a specific set of policies favored by said donors. It also uses resources that legislatures will not provide and that donors cannot legally provide directly.”

Horner broke down the entire anatomy of the scheme.

The extension of such a billion-dollar per year climate industry to privately fund state attorney general investigations sets a dangerous precedent, Horner contended.

“It represents private interests commandeering the state’s police powers to target opponents of their policy agenda and to hijack the justice system as a way to overturn the democratic process’s rejection of a political agenda,” he wrote.

In effect, Horner stated, the arrangements are de facto law enforcement in which NGOs seemingly rent out their tax-exempt status on behalf of activist donors.

And Horner pointed to other constitutional, legal, and political concerns: Delegating prosecutorial power to outside interests raises due process concerns under the Fourteenth Amendment; donor-driven attorneys create incentives to file cases to maintain funding; and separation-of-powers principles could be violated when legislatures neither authorize nor fund the positions.

Back at the dairy farm

The February 20 complaint filed by Wisconsin Dairy Alliance and Venture Dairy Cooperative picked up right where Horner left off, rendering an explicit accounting of how the arrangement harms Wisconsin farmers and violates both state law and the constitution.

For example, the complaint observes, the NYU fellow working for Kaul represents the Department of Natural Resources (DNR) in enforcement actions, including a case against a rural Clark County farmer for a ditching project that the agency insists impacts wetlands, thus necessitating a permit. As such, the complaint added, the SAAG wields the same powers as any assistant attorney general—investigating, prosecuting, advising state agencies, and representing the state in court.

Yet she is not a state employee, does not go through Wisconsin’s civil service hiring process, and her salary is paid directly by the Center. The DOJ has intentionally structured the SAAG’s salary in a way that circumvents the state’s appropriations process, the dairy groups argue.

“DOJ’s agreements with the SAAG and the Center require the Center to pay the SAAG’s salary and benefits directly, rather than first routing those funds to DOJ, and without DOJ obtaining legislative approval to receive those funds,” the complaint alleged.

More ominously, the complaint observes, members of the Wisconsin Dairy Alliance and the Venture Dairy Cooperative regularly engage with DNR, which requires dairy farms that qualify as concentrated animal feeding operations (CAFOs) to secure Wisconsin Pollutant Discharge Elimination System permits.

“As part of the monitoring and permitting processes, DNR staff regularly conduct site visits to ensure compliance with the regulations governing the storage and processing of manure and other agricultural regulations,” the complaint states. “Violations of the complex regulations that govern these dairy operations often result in steep fines, enforcement actions, and attorneys’ fees.”

Indeed, the dairy groups stressed, the DOJ frequently files enforcement actions against CAFOs and publicizes those cases.

“And a finding of a violation, or even a settlement of the case with no admission of wrongdoing, can cost hundreds of thousands of dollars,” the complaint stated. “More, even when a violation is never proven and no settlement ever reached, the allegations remain in the public domain and defending against these allegations requires substantial time and resources.”

The complaint alleged that the arrangement was unlawful on multiple grounds. For one thing, no Wisconsin statute authorizes the attorney general to hire privately funded attorneys as SAAGs.

The complaint also contended that the SAAG funding cannot be considered a gift because only the Joint Committee on Finance may approve acceptance of gifts or grants, and DOJ never sought approval for the NYU fellow.

Finally, the complaint raised three critical constitutional problems, echoing Horner’s difficulties with the practice.

For starters, the complaint observed that, in Wisconsin, “executive power is to be exercised by the executive branch.”

“That, of course, means the legislative and judicial branches may not exercise this power, but it also means that it is the responsibility of the executive branch to exercise this power,” the complaint stated. “Thus, the executive cannot delegate this power to private parties. Indeed, vesting private parties with prosecutorial power tramples these constitutional limits, unleashing private parties to pursue their ‘personal or pecuniary interest which [often] is inconsistent with or repugnant to the public interest.’”

Separately, the dairy groups argued, granting prosecutorial power to a private entity violates due process.

“The Center and its Legal Fellows are third parties with interests that are or may be adverse to the interests of many Wisconsinites and many Wisconsin businesses and organizations,” the complaint stated. “The Center influences the decisions of the attorney general and the DOJ both directly through its agreement with DOJ and through the authority it exercises over its Legal Fellow, who then wields prosecutorial power in Wisconsin.”

Allowing the Center and its legal fellows to wield prosecutorial power, directly or indirectly, thus violates due process, the groups contended.

“The right to petition is fundamental because it ‘allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives,’” the complaint stated. “The right is implicit in the very idea of government, republican in form. And government action that ‘impermissibly interferes’ with the fundamental rights of some individuals but not others unconstitutionally denies those individuals equal protection of law.”

Finally, the dairy groups say, DOJ’s agreement with the Center denies plaintiffs and their members equal protection of the law by granting the Center pay-to-play, preferred access to express its ideas and priorities to DOJ and the attorney general.

“The agreement disadvantages plaintiffs and hampers their ability to petition the government because they lack access to a comparable SAAG position,” the complaint stated. “The agreement imposes a barrier between plaintiffs and the attorney general and DOJ, giving the Center insider leverage to undermine or oppose any attempts by plaintiffs to petition government officials on agricultural and other environmental issues. DOJ has thus infringed plaintiffs’ right to petition and denied them equal protection of law.”

The larger pattern of bureaucratic bossism

Since the re-election of Donald Trump, we have all come to understand how extensive, powerful, ideological, and anti-democratic the deep state is, and has been for years and years. Only now has it been exposed broadly, and a day of reckoning is surely coming.

But it requires diligence and an open eye. Some weeks ago, I wrote about the current congressional unmasking of leftist nonprofits’ exploitation of federal tax dollars to fund their radical agendas, but I also pointed out that none of that was new. It had all been exposed and buried before. Way back during the Obama administration, the GOP-majority House held hearings exposing the same network, but nothing ever came of it.

The use of these assistant attorneys general is nothing new, either, having been reported on since at least 2018. The practice might not have been introduced to Wisconsin at that time, but it was being touted and adopted in other states. It fell between the cracks, and now the dairy groups have had to pay the price with litigation.

It’s also important for us to be exceptionally vigilant about new variations of old scams, a popular ploy among progressives. The latest scheme is just a variation of a network where wealthy donors, NGOs, government bureaucrats, and progressives merge into a revolving door of influence, money, and power.

For example, a 2014 minority staff report of the Senate Environment and Public Works Committee offered a blueprint: a “Billionaire’s Club” of donors that funded environmental groups through various foundations and nonprofits, which in turn coordinated with bureaucrats to bypass legislatures and implement policy by executive fiat.

This is essentially the same model at work in the attorneys general offices. The billionaires’ club of radicals is still funding NGOs, only this time to work right inside the government. The dairy groups’ lawsuit shows that the model has metastasized into state law enforcement offices themselves.

This is a desecration of constitutional governance. As the complaint cites case law, “Authority to prosecute an individual is that government power which most threatens personal liberty.”

To vest it in a private, ideologically motivated “fellow” is to turn the justice system itself into a weapon for partisan crusades, which has become all too common these days.