Neil Gorsuch, and the Supreme Court’s Role on Money in Politics

Democrats in Congress have signaled their intention to make campaign finance a major theme of the Gorsuch hearings this week. No doubt with that in mind, the anti-speech group Demos has rushed out a document criticizing past U.S. Supreme Court decisions that, they claim, have “benefited a small class of wealthy, white conservative men.”

The Demos report is curious in a wide variety of ways, but mostly, it shows the extremism of Demos and the anti-speech zealots behind the move to regulate political speech.

What Demos claims to do is demonstrate the amount of money in American politics that is the “result” of four U.S. Supreme Court decisions: Citizens United v. FECMcCutcheon v. FECColorado Republican Federal Campaign Committee v. FEC; and Buckley v. Valeo. They then use a simplistic formula to determine how much spending is attributable to these cases. For example, one of the many holdings in Buckley is that Congress cannot prevent a candidate from spending his or her own money on his or her own candidacy. So Demos just takes any money spent by candidates on their own races, above the limits struck down by Buckley, and says that spending is the result of Buckley.

Demos’s methodology is crude and unsophisticated. Most importantly, there is no effort to examine what Samuel Issacharoff & Pamela Karlan famously dubbed the “hydraulic effect” – the fact that blocking one form of political communication simply diverts political activity and spending to another form of communication. For example, when Congress first prohibited labor unions from spending on campaigns, the unions simply established the first Political Action Committees, or PACs. When spending on campaigns was limited, it simply diverted to discussing issues that influenced campaigns; when that was prohibited within 60 days of an election, it simply diverted to being spent earlier, and so on. In other words, it’s very hard to tell Americans that they have to stop trying to discuss politics or influence political races. Indeed, on the progressive left, it is probably fair to say that any effort to limit their spending to defeat Trump, turn voters against him, or stop his administration’s agenda would be considered “fascist.”

Even with that gaping analytical flaw, the study then makes a number of curious decisions. For example, Demos does not include in the study political spending that it likes, e.g. “We did not include the $5,000 (in 2016 dollars) limit on independent expenditures by people or political organizations in our analysis because … people should be able to pool limited contributions together through organizations in order to raise their collective voices.”

OK. But why not exclude other sources as well, such as money candidates spend on their own races, since people should be allowed to spend their own money to deliver their own messages to the people who will have to decide how to vote?

Nor does Demos consider ways in which Supreme Court decisions have reduced the amount of money in politics. For example, Demos doesn’t consider that Davis v. FEC limited the amount of money in politics by striking down the “millionaire’s amendment,” which allowed for larger contributions to politicians in some circumstances? Shouldn’t that be subtracted back out of the spending that allegedly results from Supreme Court decisions?

Of course, the unspoken assumption throughout the report is that more spending is inherently bad. In fact, political communication is at the core of mass democracy, and spending has been shown to increase political knowledge in the electorate. Again, how many anti-Trump progressives really want to reduce the amount spent to “resist” the Trump administration?

Nor does Demos consider if the Supreme Court decisions were correct as a matter of constitutional law. The Constitution, of course, prohibits the government from regulating political speech.* Knowing what people in power will sometimes do to silence criticism and critics, or to keep themselves in power, this is a good thing. Indeed, by permitting constitutionally-suspect restrictions on political contributions and regulation of independent spending – thus deterring much spending – one could argue that that the court has dramatically decreased political spending from where it would otherwise be. And, as we’ve noted many times, all this constitutionally-suspect regulation permitted by the Court has done nothing to improve American political discussion, and quite a bit to harm it.

Which brings us to the extremism of Demos and its allies. This report makes clear that the regulatory lobby has in its sights not just Citizens United and other decisions of the Roberts’ Court, but also Buckley v. Valeo. Buckley is a 41 year old decision in which liberal Justices – notably Justices Brennan and Marshall – were, with conservatives, in the majority, defending free speech rights. Although not specifically stated in the report, it is also clear that Massachusetts Citizens for Life v. FEC – a decision written by Brennan and joined by Marshall – would have to go for Demos to realize its goals. (“MCFL” upheld the right of a small group to publish a newsletter urging voters to “vote pro-life.”). Remember that the provisions struck down in Buckley would, among other things, have limited all spending by groups of citizens to $1000 for anything even remotely connected to politics. (Thus undercutting Demos’ own statement, quoted above, that citizens should be allowed to pool limited contributions to make independent expenditures.) Do members of the Sierra Club really think that the Club should be limited to spending $1000 for anything with “the purpose of influencing an election”? What about Demos itself, which almost certainly spent over $1000 preparing this report, which they clearly intend to influence public thinking on an important issue, and hence to influence electoral results, at least indirectly? In short, Demos is urging that the Justices overrule Buckley – a per curiam opinion in which only Justice White dissented from those portions defending free speech rights, and which is one of the pillars of modern First Amendment law protecting political speech.

Now there, dare we say it, is your extremism. This report was rushed out, it appears, to provide fodder for attacks on Judge Gorsuch this week, but it really shows the radical position of Gorsuch’s critics.**

We should be thankful that the Constitution protects our rights to free speech, and should judge harshly those who would restrict those rights.

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*Yes, I know this is not the exact language of the First Amendment. So sue me. Or at least argue that it does allow Congress to regulate political speech.
**It’s worth noting that Gorsuch has written almost nothing on campaign finance; his one decision on the issue as a federal judge was a 3-0 decision striking down a Colorado law that discriminated against minor parties. He was joined by one Obama-appointed judge and one Reagan appointed judge, so this was hardly an “out there” type of opinion.