It is said that the arrival of every new Supreme Court Justice creates a “new court.” As Monday’s confirmation hearing of Judge Neil Gorsuch for Supreme Court Justice arrives, we must ask ourselves, what kind of decisions on democracy will the new court bring?
With the Supreme Court’s recent flawed interpretations of campaign finance law threatening to make the American political system even more out of touch with average citizens, Senators must push for Judge Gorsuch’s view of whether the constitution allows us to check the corrosive influence of money in our political system.
We do not know where Judge Gorsuch stands on all the important issues afflicting our democracy. But there is too much at stake for the Senate to rubber stamp this nominee without asking a few seminal questions.
What ‘standard of scrutiny’ will Judge Gorsuch apply to laws concerning campaign finance and contribution limits?
This sounds technical, but judicial scrutiny has a very real effect on the outcomes of cases. It is worrisome that Judge Gorsuch has expressed interest in providing a higher level of constitutional protection to a donor’s right to make political contributions than the court currently affords the right to vote.
In Riddle v. Hickenlooper, Judge Gorsuch was receptive to raising the standard of scrutiny to be applied to contribution limits. This approach could deal a fatal blow to remaining contribution limits by opening up equal protection challenges to contribution limits from super PACs, corporations, government contractors and other entities. This could dismantle many of the core laws that attempt to insulate our policymaking process from special interest influence.
Does Judge Gorsuch believe restrictions on corporate campaign contributions prevent corruption or the appearance of corruption?
Corporations have been barred from using funds from their general treasuries to make campaign contributions to candidates and party committees in federal elections since 1907, and the law has been repeatedly upheld by the Supreme Court. If Judge Gorsuch believes in dismantling the corporate contribution ban, it would open the floodgates to corporate and union domination over political discourse.
It would also suggest that Judge Gorsuch is out of touch with supporters of President Trump who believed the heart of Trump’s “drain the swamp” message. We must work to ensure our democracy is one where all citizens can participate, not just the elites. As many as 80 percent of voters believe the federal government — and the entire U.S. political system — is out of touch with the average citizens it is designed to represent.
Along those lines, the court will decide Republican Party of Louisiana v. FEC, which is a challenge to current restrictions on the use of soft money contributions to state parties in federal elections. These contributions could allow state political parties to become a vehicle by which wealthy interests seek influence from their elected officials outside the limits of federal law.
If Judge Gorsuch turns his back on the 2003 McConnell v. FEC decision, it could usher in an era of unprecedented government corruption. In that ruling, the majority recognized that “just as troubling to a functioning democracy as classic quid pro quo corruption” is the danger that large contributors will be able to purchase influence over and access to the officeholders who are the recipients of their largesse.”
Given that the court is likely to take up issues like contribution limits and corporate restrictions this year, this should be a major concern to advocates of open, accountable government. Judge Gorsuch should have to answer questions about which side his judicial gavel will land on issues affecting everyday voters.
Have citizens’ rights to speech under the First Amendment been distorted by the courts to privilege special interests?
The First Amendment was not intended to be a roadmap to the plutocracy of an elite donor class of insiders. The Framers wrote the First Amendment to guarantee everyone the right to speak. The Framers wanted officeholders to be accountable to the voters.
Accountability goes hand in hand with disclosure. Citizens broadly agree they should be able to look up candidates in real-time to see what entities have spent substantial sums on the candidate’s behalf. Disclosure was upheld 8-1 in the otherwise disastrous 2010 Citizens United v. FEC decision, but it is currently under attack by special interests arguing it chills free speech.
In a 2015 poll conducted by the New York Times and CBS News, a majority of Americans do not equate donating money to political candidates with “free speech.” That same poll shows that 84 percent of Americans, regardless of political affiliation, agree money has too much influence on elections.
In another case likely headed to the Supreme Court this year, Texas Democratic Party v. King Street Patriots, an advocacy group is challenging the constitutionality of numerous provisions of Texas’s campaign finance law, including PAC disclosure requirements. The outcome of this case could serve as a bellwether test for these laws nationwide.
Knowing Judge Gorsuch’s stance on this case will help us understand whether Gorsuch is in fact a judge “in the mold of Scalia,” the justice whose seat he is seeking to fill. But Justice Scalia’s legacy on campaign finance includes the premium he placed on government transparency. Scalia said that the premise of the First Amendment is that the American people are neither sheep nor fools. Expressing his support for political disclosure laws, Scalia wrote, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Let’s hope we aren’t doomed.
The electorate has an interest in knowing who is writing large campaign checks to air ads about candidates because it allows voters to evaluate competing messages critically and use this information at the ballot box. The dark money issue has never been more salient. More than $42 million in dark money dollars were spent in the 2016 presidential race and more than $5 million each were spent on both sides of the Pennsylvania, Florida, Nevada, North Carolina, Ohio, and Indiana Senate races, according to data by OpenSecrets.org.
What does all of this mean for the confirmation hearing for Judge Gorsuch?
The question is whether Judge Gorsuch’s views of our democratic system, and the constitution, provide a privileged role for voters and citizens or for special interests such as business corporations and large economic entities. Will he offer greater protection to the secrecy of political money or use a flawed First Amendment argument to justify striking down contribution limits completely, allowing a free-for-all for big donors?
Before confirming Judge Gorsuch to a lifetime seat on the nation’s highest court, he should be thoroughly scrutinized until he answers specific questions about his view on money in politics. No other issue occupies this unique place — and with such bipartisan agreement that something needs to change to empower regular American voters to have a voice in this system.
Trevor Potter is president and founder of the Campaign Legal Center, a nonpartisan organization focused on national election laws and ethics in government. He is also a senior adviser to reform group Issue One and head of the political law practice at Washington firm Caplin & Drysdale. He previously served as chairman of the U.S. Federal Election Commission.