Democrats to Probe Gorsuch Views on Campaign Finance

Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...

By Kenneth P. Doyle

Democrats supporting campaign finance regulation have stopped short, so far, of outright opposition to Supreme Court nominee Neil Gorsuch, but key lawmakers said the burden of proof is on Gorsuch to show he won’t help extend the line of recent court decisions that rolled back limits on money in politics.

Sen. Sheldon Whitehouse (D-R.I.) said Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit, will have to convince Democrats that he won’t follow the Supreme Court’s deregulatory path of rulings like its pivotal 2010 decision in Citizens United v. Federal Election Commission in order to avoid a Senate filibuster of his confirmation vote.

Whitehouse, a member of the Senate Judiciary Committee, spoke on a March 14 press call, less than a week before the committee is set to begin confirmation hearings on Gorsuch on March 20. He noted the possible Democratic filibuster of the nomination has led to speculation that Senate Majority Leader Mitch McConnell (R-Ky.) would seek the “nuclear option”—eliminating the filibuster and allowing Gorsuch to be confirmed with less that 60 votes in the Senate.

House Lawmakers’ Letter

Also questioning Gorsuch’s views of money and politics issues were a Democratic House lawmaker, Rep. John Sarbanes (D-Md.), and representatives of groups supporting strong campaign finance regulation. Sarbanes led a group of 110 House Democrats signing a letter to the Senate Judiciary Committee saying that Goresuch must be asked about whether he agrees with the majority opinion in Citizens United and about his views on other key legal issues related to campaign finance.

“In our view, the Supreme Court has for decades embraced a deeply flawed approach to the laws governing money in our politics,” the House members’ letter said. “The result has been a system that empowers the wealthy and well-connected, while drowning out the voices of everyday Americans.”

Critics of the high court have pointed to a series of 5-4 rulings striking down campaign finance limits. Chief among them was the 2010 decision in Citizens United, which struck down a decades-old ban on direct corporate spending to influence federal elections. The ruling sparked a sharp increase in the amount of campaign money spent by outside groups not formally linked to candidates or political parties.

The House Democrats’ letter pointed to poll results indicating that 90 percent of voters believed a new Supreme Court justice should “be open to limiting the influence of big money in our politics.” Polls show 91 percent of those who supported President Donald Trump back this view, the letter said.

Gorsuch Called First Amendment Defender

Trump criticized what he called a corrupt political system while on the campaign trail but has proposed few systemic changes to address the issue. His nomination of Gorsuch has been widely viewed as indicating the president won’t push the Supreme Court to change direction on campaign finance issues.

Republicans and groups critical of campaign regulation generally have supported the Gorsuch nomination. The Center for Competitive Politics, which says it is America’s “largest nonprofit defending First Amendment political speech rights,” applauded Trump’s selection of Gorsuch as a nominee for the Supreme Court.

The judge’s “opinions show an understanding that the role of a judge is not to enact his own preferences, but neither is it to rubber stamp the legislature,” said Bradley A. Smith, a former Republican commissioner on the FEC, who is chairman of the Center for Competitive Politics. “At a time when free speech often seems on the defensive, we are pleased that President Trump has nominated someone who will defend a robust First Amendment.”

Few Rulings on Point

While groups involved in campaign finance issues seem to believe they already know Gorsuch’s positions, the judge has issued few rulings in this area. Frequently cited is his concurring opinion in a 10th Circuit case decided in 2014, known as Riddle v. Hickenlooper.

Gorsuch was on a three-judge panel that struck down a Colorado law imposing lower campaign contribution limits on minor party candidates than on major party candidates. He wrote separately, however, to say that making a political contribution was a “fundamental” right deserving the highest level of constitutional protection, known as “strict scrutiny review.” Gorsuch’s critics have speculated the opinion could indicate he would be open to loosening or striking down contribution limits for candidates and political parties, which have been left largely intact by the Supreme Court’s recent rulings.

Gorsuch critics also point to his majority opinion for the 10th Circuit in a case known as Burwell v. Hobby Lobby. The judge’s ruling extended the Supreme Court’s holding in Citizens United in favor of “corporate personhood,” according to critics. The 10th Circuit ruled that privately held, for-profit secular corporations were “persons” under the meaning of the Religious Freedom Restoration Act, and could qualify for religious exemptions from a mandate in the federal health-care law, the Affordable Care Act, to provide health plans with birth control services. Ultimately, the Supreme Court ruled in 2014 that corporations claiming religious objections couldn’t be forced to provide birth control.

Battle Over Court Majority

As significant as particular opinions, according to critics, is the perception that Gorsuch was nominated to the Supreme Court in order to preserve the court’s conservative 5-4 majority in key issues, including campaign finance, following the death last year of Justice Antonin Scalia.

During the March 14 press call, Whitehouse said Senate Democrats are concerned that the Supreme Court majority has become a “tool of the Republican Party” to preserve power for Republican candidates and corporations. He said the trend was evidenced by a series of 5-4 opinions under the leadership of Chief Justice John Roberts that have advantaged Republicans in elections and given corporations the upper hand in disputes with unions and others. The trend toward politicizing the court is eroding its credibility for objectively upholding the law, the senator charged.

Yet, evidence that the trend is continuing is witnessed by the public battle over Gorsuch’s nomination, Whitehouse said. He said millions of dollars in “dark money” from undisclosed sources is being spent on advertising efforts by groups backing the Supreme Court nominee.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.