This week, the U.S. Senate is holding hearings to consider President Donald Trump’s nominee to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death.
Senators must evaluate how Judge Neil Gorsuch will review laws intended to protect the integrity of government and the democratic process – and the next justice could provide the pivotal swing vote on future cases about money in politics.
Seven years ago, the Supreme Court decided Citizens United v. FEC, striking down long-standing laws prohibiting corporations and unions from spending on political campaigns. Several years later, in McCutcheon v. FEC, the court struck down the overall limit that an individual could contribute to political candidates, parties and political committees.
The Supreme Court decided each case by a 5-4 vote, with Scalia siding with the majority. Each case made it easier for wealthy interests to back campaigns and buy influence over public policy. Now the mere threat of campaign spending can reset policy priorities in Congress and state legislatures.
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The Citizens United ruling defied common sense and came to erroneous conclusions. For example, it ruled that corporate campaign spending does “not give rise to corruption or the appearance of corruption,” provided that corporations spend their campaign cash independently of candidates. It also said that any appearance of influence or access “will not cause the electorate to lose faith in our democracy.”
In McCutcheon, the Supreme Court went a step further, writing that the “ingratiation and access” that come with campaign spending “embody a central feature of democracy.” Doubling down on the reasoning of Citizens United, the court held that money flowing through entities like super PACs cannot corrupt in the same way as money that goes directly to a candidate.
The premise of both cases is faulty. The court presumed that the new spending it unleashed would be independent of political candidates, and that it would be disclosed “at the click of a mouse” so that voters could make better informed decisions on Election Day.
Unfortunately, too often the spending is neither independent of candidates nor disclosed.
Super PACs – which can accept unlimited amounts of money from nearly any source – are now considered a “must-have accessory” of political campaigns. Candidates brazenly associate with super PACs solely backing their campaigns, in some cases outsourcing their campaign’s tasks.
Moreover, there are now clear examples of how so-called independent spending can lead to corruption. The Brennan Center for Justice has detailed recent cases of elected officials doing the bidding of those that backed their campaign through nominally independent groups, or trading plum government appointments in exchange for campaign funding.
And since Citizens United, secret campaign spenders have pumped more than $800 million into federal elections, not counting sums spent at the state and local level.
One case, in particular, raises questions about how Gorsuch will approach campaign finance laws. The problem is not that he voted to strike down a poorly designed contribution limit that treated contributions to major party and minor party candidates differently. What is concerning is that he took the time to pen a concurring opinion to signal his openness to striking down other contribution limits by subjecting those laws to “strict scrutiny,” which would depart from decades of Supreme Court precedent.
With a Congress hostile to campaign finance reforms, new laws will be passed at the state and local levels, including by initiative. Courts have routinely provided a degree of deference to voter initiatives, particularly when they augment rights and protections for people. A number of these laws could be challenged in the Supreme Court.
Before confirming Gorsuch to a lifetime appointment, senators should strictly scrutinize his own philosophy about the laws whose very purpose is to protect our representative, and increasingly vulnerable, democracy.
Ann M. Ravel is former chairwoman of the Federal Election Commission and California’s Fair Political Practices Commission. She can be contacted on Twitter @AnnMRavel.