To: Interested Parties
Date: March 14, 2017
Re: Senate Judiciary must ask Gorsuch if he will side with big donors or voters
As the Senate Judiciary Committee prepares to take up the nomination of Neil Gorsuch for the U.S. Supreme Court next week, committee members are under increasing pressure to thoroughly vet Gorsuch’s views on important questions about where power lies in our democracy. And a new report detailing the $3 billion in 2016 election spending as a direct result of past Supreme Court rulings gave the answers to these questions even greater importance.
Today 121 democracy, civil rights, environmental, labor, and other local, state, and national organizations representing tens of millions of Americans released a letter demanding Gorsuch be forced to clarify his position on the power of big money in politics and whether he believes the wealthy should be heard above the voices of everyday people. The groups were joined by 111 U.S. Representatives in raising these issues today.
The Judiciary Committee should take its time with this nomination and ask the nominee some basic questions, including:
- Will your legal philosophy lead you to strike down even more protections against the use of corporate or personal wealth to influence elections, such as candidate and party contribution limits, or will you permit sensible limits on political money in order to ensure the voices and will of all Americans are fully represented within the political process?
- Is the prevention of bribery – so-called quid pro quo exchanges – the sole justification for limits on big money in our politics or do others exists? If so, what are they?
- Had you been on the Supreme Court at the time the Court ruled on Citizens United would you have joined the majority or the dissenting opinion? And why?
- Having never served in elected office, what value, if any, do you place on the opinions and testimonials of elected officials – both past and present – about the impact of concentrated special interest money in on our democracy?
For years Americans across the political spectrum have railed against a political system titled in favor of wealthy special interests in no small part because of the Supreme Court’s misguided approach to money in politics in cases like Citizens United and Buckley. In fact, President Trump largely rode an anti-big donor, populist wave to the White House, and 91% of Trump voters say they want a justice open to limiting the influence of big money in politics.
Nevertheless, Trump nominated a justice whose record suggests he agrees with Citizens United and would rule to strike down even more protections against the power of wealthy donors. This is not an abstract threat. There are many cases impacting our democracy that could appear before the Court in the next year.
We’re at crossroads: We can either confirm yet another justice like Scalia who will enable the wealthy to decide who runs for office, who wins and what issues get their attention, or we can demand a justice who cares more about protecting every American’s right to vote than a billionaire’s ability to drown out our voices with millions in election spending.
It’s critical Judge Gorsuch give clear answers to the questions above and senators vote down his nomination if he can’t assure the American people he believes the Constitution protects the rights of all of us, not just those of wealthy special interests.
Judge Gorsuch’s Extreme Views Could Undermine Urgently Needed Money-In-Politics Reforms
An analysis by Demos and Campaign Legal Center of Judge Gorsuch’s record on money in politics raises significant concerns.
“In his only opinion directly addressing money in politics, Judge Gorsuch expressed openness to 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. Judge Gorsuch’s openness to applying rigid “strict scrutiny” review to contribution limits—one of the few remaining checks on big money we have left, thanks to the Supreme Court—puts him among the ranks of justices extremely hostile to this issue, such as Thomas and Scalia, and is cause for serious concern…It is precisely this approach that has created a system in which single individuals and corporations can spend tens of millions of dollars to influence elections, and in which candidates and elected officials are significantly more responsive to the priorities of an elite donor class that is richer, whiter, and more male than Americans on the whole.”
Election law expert Rick Hasen has expressed similar concerns:
“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.”
Anti-corruption expert Zephyr Treachout also agrees:
“He has consistently been the friend of big business and monopolies at the expense of competition and open markets, and the friend of big donors at the expense of small donors… A Gorsuch democracy won’t look much like a democracy at all, with donors allowed essentially unlimited avenues for influence.”
Voices Demanding Thorough Vetting of Judge Gorsuch’s Views on Money in Politics
At least 15 senators have brought up the issue upon discussing Gorsuch’s nomination: Sen. Brown, Sen. Cantwell, Sen. Durbin, Sen. Franken, Sen. Harris, Sen. Hassan, Sen. Klobuchar, Sen. Merkley, Sen. Nelson, Sen. Reed, Sen. Sanders, Sen. Schumer, Sen. Shaheen, Sen. Warren, Sen. Whitehouse.
More than 100 U.S. Representatives sent a letter to the Senate Judiciary Committee:
“The Supreme Court has for decades embraced a deeply flawed approach to the laws governing money in our politics. The result has been a system that empowers the wealthy and well-connected, while drowning out the voices of everyday Americans. It is no surprise then that more than 90% of voters – including 91% of Trump voters – believe it is critical that the new Supreme Court justice be open to limiting the influence of big money in our politics… For these reasons, we ask that you implore Judge Gorsuch to provide a public response to the following questions concerning money in politics and the Constitution.”
More than 100 organizations sent a letter to the Senate Judiciary Committee:
“The seat Judge Gorsuch seeks does not belong to President Trump, Republicans, Democrats, liberals, or conservatives. It belongs to the American people. As Senators it is your duty to ensure that the next member of the Supreme Court holds dear the belief that the Constitution protects all of us, not just the wealthy and the powerful. Any nominee who does not meet this standard must not occupy a lifetime seat on the nation’s highest court.”
Voters Care How the Supreme Court Impacts Money in Politics
Arguing against a nominee who sides with billionaire donors and wealthy special interests over everyday Americans resonates with most voters regardless of party affiliation. Americans want a nominee who knows the Constitution protects everyone, not just the rich and powerful. According to recent surveys by Hattaway Communications and Greenberg Quinlan Rosner Research:
- Voters—almost unanimously—see the power of big money in politics as a problem, including two thirds of voters who say it’s “a very big problem.” Almost all voters also agree that the Supreme Court plays a role in setting the rules around money in politics, including nearly two thirds of whom say the Court plays a “very important role.”
- Voters believe money in politics is among the most important issues facing the Supreme Court, and believing that “the Constitution protects all of us, not just the wealthy and powerful” ranks as a top quality in a justice for voters across the board.
- 93% of voters—including 88% of conservatives, 90% of Republicans and 91% of Trump voters—think it is important that President Trump nominates a Supreme Court justice who is open to limiting the influence of big money in politics.
- 78% are more likely to oppose Trump’s nominee if he “has issued rulings that there should be no limits on the amount of money corporations and wealthy individuals can spend on elections.”
- 70% are more likely to oppose Trump’s nominee if he “would uphold the Supreme Court’s Citizens United decision that allowed corporations, unions, and wealthy donors to spend more money in our elections.”
- More than three in four voters agree that Congress should reject any Supreme Court nominee who will help the wealthy continue to wield too much power in our elections.
2016 Election Money Resulting Directly From Supreme Court Rulings
For the first time, Demos was able to quantify exactly how much money has flooded our elections as a result of major Supreme Court money in politics rulings. The Court Cash report identifies the impact of these decisions on a case-by-case basis -- Buckley v. Valeo (1976), Colorado Republican Federal Committee v. FEC (1996), Citizens United v. FEC (2010), and McCutcheon v. FEC (2014) -- and finds that they have, in fact, directly impacted the amount of money in our political system. The report speaks volumes about what is at stake for our democracy as the Senate considers Gorsuch’s nomination.
Key findings include:
- The Supreme Court’s rulings led to more than $3 billion in spending on the 2016 elections, which is equivalent to 45 percent of the total cost of the elections.
- The Court’s rulings led to 77 percent of spending in competitive congressional races, and 49 percent of spending the presidential election can be attributed to the Court.
- The Court’s rulings allowed 123 wealthy candidates to spend $161 million on their own campaigns.
- 1724 wealthy donors contributed $274 million in “McCutcheon Money” in 2016—money that went beyond what would have been permitted by the previous “aggregate” contribution limit.
- Buckley v. Valeo resulted in more 2016 campaign spending than Citizens United v. FEC.
Judge Gorsuch’s Thin Record on Voting Rights and Redistricting Requires Close Questioning
It’s not just money in politics. The next Supreme Court justice will also pay a key role in determining key cases on redistricting and voting rights. Much is unknown about where Gorsuch stands on these issues, according to Campaign Legal Center.
“Judge Gorsuch’s commentary on Vieth v. Jubilerer, the leading case on partisan gerrymandering, is cause for serious concern and additional questions. In a case addressing the Guarantee Clause, Judge Gorsuch wrote a dissent to denial for rehearing en banc (full panel of judges). In that dissent, he suggested that Vieth “put to bed” the issue of partisan gerrymandering due to a lack of judicially manageable standards. That is not the case.”
…
“Judge Gorsuch has tied himself closely to the judicial philosophies of Justice Scalia... Judge Gorsuch must be asked if he shares Justice Scalia’s view of the Voting Rights Act and whether he would continue Justice Scalia’s pattern of weakening protections of the right to vote while continuously increasing the constitutional protections for money spent to influence votes.”
