To: Interested Parties
Date: April 6, 2017
From: Demos, Every Voice and ReThink Media
Judge Neil Gorsuch’s troubling record on money in politics became a potent sticking point during the debate over his nomination to the U.S. Supreme Court and formed the backbone of the opposition that denied him the 60 or more votes traditionally garnered by Supreme Court justices. Of the 44 senators who filibustered his nomination, at least 22 of them -- including many facing competitive 2018 races like Senators Jon Tester (D-MT), Claire McCaskill (D-MO) and Angus King (I-ME) -- cited Gorsuch’s potential to protect and further entrench the power of big campaign donors in our democracy.
The opposition underlined the immense role the Supreme Court has played (and will now continue to play) in undermining the right of everyday Americans to be heard in the political process as well as the resonance of messages challenging big money in politics -- even with voters in deep red states like Missouri and Montana.
The Nomination
Concerns about Gorsuch’s record on money in politics surfaced immediately following his nomination. On the night of his nomination, Demos and Campaign Legal Center published a review of his case history which concluded Gorsuch would be “among the ranks of justices extremely hostile to this issue, such as Thomas and Scalia.” Particularly troubling is his concurring opinion in Riddle v. Hickenlooper in which he suggested applying “a higher level of constitutional protection to a donor’s right to make political contributions than the Court currently affords the right to vote.” Organizations like Every Voice and End Citizens United highlighted this compromising record in their statements in response to the nomination.
Senators made clear from the start that his record on this issue would factor into their decisions of whether to support or oppose his nomination. When the nomination was announced, Sen. Maria Cantwell (D-WA) said, “There is too much at stake – from women’s choice and immigration reform to LGBTQ rights and marriage equality to voting rights and campaign finance reform.” Similarly, Sen. Kamala Harris (D-CA) said, “The next justice will have a profound impact on money in politics, voting rights, immigrant and women’s rights, and more.” Sen. Jeff Merkley (D-OR) said, Gorsuch “could threaten fundamental rights in America, including...the rights of ordinary citizens to have their voices heard in elections.”
U.S. House members also spoke out. Rep. Jim McGovern (D-MA) tweeted, “All the progress we've made for women, the environment, campaign finance reform, LGBT equality & more will be on the line with #SCOTUS.” And Rep. Ro Khanna (D-CA) said, “Gorsuch called money in politics a "fundamental right," and rejects abortion and LGBTQ rights. His views need to be exposed and rejected.” Rep. Dina Titus (D-NV) echoed those concerns on Twitter as well.
Elected officials considering Gorsuch’s record on the issue had the firm backing of American voters across the political spectrum. In a poll conducted just weeks before the announcement of the nomination, 63% of all voters--including 56% of Trump voters--said it was “very important” President Trump nominates a Supreme Court justice who is open to limiting the influence of big money in politics. Ninety-three percent said it was at least somewhat important, and 77% said Congress should reject any nominee who will help the wealthy wield outsize power in elections.
Before Senate Committee Hearing
The number of voices worried Gorsuch would continue to tilt the playing field in favor of the wealthy and powerful only continued to grow as more people dug into his record -- including lawyers, membership organizations and members of Congress.
In a column for The Washington Post, Zephyr Teachout, law professor and historian of corruption in America, wrote, “A Gorsuch democracy won’t look much like a democracy at all, with donors allowed essentially unlimited avenues for influence. Gorsuch’s views on antitrust and campaign finance go hand in hand. They reveal a judge who will further open the way for a few wealthy people to rob the American people of their basic freedoms and properties, and to subvert our democracy once and for all.” Election law expert Rick Hasen agreed in a column for CNN where he wrote, “The court with Gorsuch, like a court with Scalia still on it, seems poised to kill off what's left of McCain-Feingold and potentially open the door to candidates taking unlimited contributions from individuals and perhaps even corporations.”
More than 100 U.S. Representatives and 120 membership organizations--including civil rights, environmental, labor, and good government communities--signed letters urging members of the Senate Judiciary Committee to thoroughly vet whether Gorsuch would be open to common-sense limits on big donor power during the committee’s confirmation hearings.
All the while, more and more senators continued to leave private meetings with Gorsuch deeply troubled by the damage he would cause our democracy if confirmed. Both senators from New Hampshire, Sens. Maggie Hassan (D-NH) and Jeanne Shaheen (D-NH), emphasized their concern about the increase of secret money in elections following the Supreme Court’s decision in Citizens United v. FEC. Sens. Dick Durbin (D-IL) and Amy Klobuchar (D-MN) noted their differences of opinion with Gorsuch on the issue. These senators would later announce their opposition to his nomination because of his approach to campaign finance.
Senate Committee Hearing
People who were troubled by Gorsuch’s views on money in politics heading into the confirmation hearing were equally troubled, if not more so, when the hearings concluded. Money in politics immediately emerged as a key theme during the first day of the hearing, but over several days of questioning Gorsuch provided senators no assurances he’d protect every American’s right to be heard in the political process. In almost every case he simply refused to transparently reveal his views.
Right at the start he refused to answer a question from Senate Judiciary Chairman Chuck Grassley (R-IA) on whether he agrees with Citizens United. When given a second chance by Sen. Pat Leahy (D-VT) to explain his views, Gorsuch proceeded to misstate the holding in Citizens United by wrongly saying that Congress has ample room to enact expenditure limits. Some suggested he was purposively misleading to soften the ruling’s harshness.
Gorsuch also tried to dodge Sen. Leahy's simple question of whether buying votes or favors is corruption.
Sen. Sheldon Whitehouse (D-RI) then brought the discussion to transparency and whether donors to outside political groups should be disclosed, considering the fact that such groups are spending millions to ensure his confirmation. He again evaded and refused to acknowledge whether disclosure is in the public interest, leaving open the possibility he’ll side with the Koch brothers and Justice Thomas who oppose disclosure rather than with the late Justice Scalia and most Americans who support the right to know who’s spending money to influence our politics.
Sen. Klobuchar proceeded to examine his troubling concurring opinion in Riddle v. Hickenlooper. Again, Gorsuch evaded three direct questions about whether he believes strict scrutiny should be applied to all laws limiting campaign contributions, a legal standard that would all but invalidate these remaining limits on how much wealthy donors can influence our elections. The next night The Daily Show’s Trevor Noah highlighted Gorsuch’s opinion in Riddle and his reluctance to talk about it.
Perhaps most disturbingly, he expressed zero understanding that “the problems facing our democracy run much deeper, and are more systemic, than bribes to particular politicians.” This suggests he would continue the Court’s misguided approach to money in politics and continue to narrow the right of We the People to protect our democracy from the domination of wealthy special interests.
Demos President Heather McGhee succinctly summed up what we learned about Gorsuch in her testimony before the Senate Judiciary Committee. She said, “Judge Neil Gorsuch has the potential to be the deciding vote to destroy the few remaining protections against big money dominating our democracy. His troubling record on money in politics, especially when added to the rest of his record of favoring wealthy interests over the rights of ordinary people, requires this Committee to reject his nomination to the U.S. Supreme Court.”
Senate Confirmation Vote
Following the hearing, it was clear Gorsuch does not believe that everyday Americans should drive our democracy. His out-of-touch views on money in politics played a critical role in denying him the broad bipartisan support past nominees have received.
Senator after senator announced they would be voting against his nomination because, as Sen. Tester put it, “With Judge Gorsuch on the bench, I am deeply concerned that dark money will continue to drown out the voices and votes of citizens.” On the senate floor, Senator Bernie Sanders (I-VT), Sen. Merkley and others reiterated that Gorsuch’s position on money in politics made him unfit for our country’s highest court. Senator Mazie Hirono (D-HI) spotlighted cases like Citizens United in which “the Supreme Court has issued numerous 5-4 decisions which have favored corporate interests over the rights of individuals.”
Some 22 senators ultimately opposed Gorsuch on these grounds. Those senators represent a diverse set of states including Florida, Maine, Missouri, Montana, Ohio and Pennsylvania where sitting senators face potentially difficult reelection efforts. The senators understand their constituents and most Americans are still hungry for real action to ensure government of, by and for the people after President Trump betrayed his populist promises to drain the swamp and fix the super PAC “disaster.” In fact, several people were arrested in the Hart Senate Office Building for staging a sit-in to protest the nomination hours before the Republican majority changed senate rules to allow Gorsuch on the Court with mere majority support. The protesters chanted, “Money ain't speech, corporations aren't people."
As USA Today reporter Heidi Przybyla concluded in an article on the Gorsuch nomination, "If Trump's election marked a realignment of U.S. politics, anger over corporate influence buying was what united both Trump's passionate base and the progressive left. What it means is minimal political risk for Democrats who defy legislation, or in this case a Supreme Court nominee, seen as favoring corporations and wealthy donors."
Moving Forward
Ultimately Senate Republicans changed the rules of the game at the last minute to seat a justice on the Supreme Court who will be, in the words of Every Voice’s David Donnelly, “a gift to the billionaires and corporate interests.” They will now own future Court decisions that continue to give more weight to a billionaire’s ability to drown out voters’ voices with millions in election spending than to every American’s right to vote. Voters were already disgusted with the $3 billion in 2016 election spending directly attributable to past Court decisions. Justice Gorsuch’s likely rulings against basic checks to the power of big donors will only intensify voter outrage.
It is also now clear voters and elected officials will seriously vet future Supreme Court nominees on money in politics and the nominee’s relevant record and views on the issue will feature heavily in the confirmation process. With three justices 78 years of age or older, it won’t be long before there’s another vacancy on the high court. Whoever is President would be wise to nominate someone whose views on the people’s ability to protect our democracy are aligned with the vast majority of Americans. Otherwise that nominee will also face an uphill confirmation battle.
