By David Keating & Luke Wachob
Democrats and progressives are losing their minds over President Trump’s Supreme Court nominee, Neil Gorsuch. One left-wing advocacy group released a video titled “3 Reasons to Fear Judge Gorsuch.” Number one? According to them, if Gorsuch is on the Supreme Court, “our elections could be completely handed over to the powerful and the wealthy.”
That ludicrous statement refers to Gorsuch’s concurring opinion in Riddle v. Hickenlooper, a campaign finance case. Riddle challenged Colorado’s contribution limit law as discriminatory.
Was it ever! It allowed major party candidates to raise twice as much money as minor party candidates and independents. Progressives love to say “money isn’t speech,” but Riddle wasn’t about that. It was about equality…
Should progressives worry that Gorsuch may rule against them on campaign finance cases? Probably, given the type of restrictions they support on your free speech.
The silly Colorado law struck down by the court – they wrote it! Common Cause and like-minded groups seeking speech limits put it on the ballot. The goal? Getting money out of politics, of course.
By David Keating & Luke Wachob
By David Keating
Despite some hysterical reactions, the truth is that, as it stands, the Johnson Amendment is horribly written. It chills vital speech in violation of the First Amendment. Congress should repeal it, and pass a clear and sensible provision in its place.
The amendment was inserted into the law by a powerful senator – Lyndon Baines Johnson, who later became president. Johnson’s amendment aimed to silence groups he didn’t like. Today, the potential IRS penalty for even a minor violation of the amendment is a death sentence for any group – a complete loss of its tax exemption. That’s absurd…
No one wants churches or charities to become super PACs blessed with tax-deductible donations. That’s not what’s going to happen, and I very much doubt President Trump wants that outcome. Evangelical groups that sparked Trump’s concerns have no interest in this state of affairs either.
But do we want a law that places the IRS in a position to investigate what a preacher said from the pulpit the Sunday before Election Day?
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post covers two First Amendment retaliation cases by Supreme Court nominee Judge Neil Gorsuch. Judge Gorsuch writes one opinion and joins another in cases constrained by precedent. Casey v. West Las Vegas Ind. School Dist., 473 F. 3d 1323 (10th Cir. […]
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post reviews an opinion Judge Gorsuch joined that raised constitutional questions about the vagueness of an as-applied challenge to a disorderly conduct ordinance. Galbreath v. City of Oklahoma City, (10th Cir. 2014) A high-heeled man with a cane performing ballet routines […]
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post reviews Judge Gorsuch’s dissent in a Fourth Amendment warrantless search case. Gorsuch powerfully and colorfully argues public officers have no power to intrude upon a house and its curtilage (appendages such as porch and the immediate area) when the owner […]
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post reviews a case in which Judge Neil Gorsuch wrote the opinion concerning jurisdictional issues with strong First Amendment implications. The opinion shows how he carefully interprets the law, free of any bias on this controversial issue. Hill v. Kemp, 478 […]
Washington Examiner: Gorsuch’s record shows strong support for the First Amendment view of campaign finance laws (In the News)
By David Keating
In his time on the United States Court of Appeals for the 10th Circuit, Gorsuch consistently wrote or joined pro-free speech rulings. The Center for Competitive Politics found four cases Gorsuch has ruled on concerning press freedom, one case concerning petition rights, and one case on contribution limits. In each instance, he came down on the side of the First Amendment…
Critics of campaign finance laws will be particularly heartened by Gorsuch’s concurring opinion in the contribution limit case Riddle v. Hickenlooper. Riddle was a challenge to Colorado’s contribution limit laws, which allowed Democratic and Republican candidates to raise twice as much money as minor party and independent candidates. The majority struck down the law as a violation of the equal protection clause.
More interesting than that is Gorsuch’s concurring opinion in the case. He expressed “some uncertainty about the level of scrutiny the Supreme Court wishes us to apply” to contribution limit cases, and signaled that he might support the application of strict scrutiny, the most stringent standard of judicial review.
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post reviews a case Judge Neil Gorsuch wrote concerning First Amendment retaliation and the right to petition government. Cases relating to the petition clause are fairly rare, and the lower court dismissed the First Amendment claims. This case exemplifies Judge Gorsuch’s […]
Hon. Neil Gorsuch United States Court of Appeals for the Tenth Circuit (2006-Present) This post examines four opinions Judge Neil Gorsuch wrote or joined concerning media freedoms under the First Amendment. These cases made either defamation or invasion of privacy claims or both. (For our previous analysis of Judge Gorsuch’s views on free speech, please […]
The Insider: Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech (In the News)
By David Keating
The minor party contributors who bring this equal protection challenge suggest (at least in places) that we should consider applying strict scrutiny to this particular aspect of Colorado’s statutory scheme. They say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. The trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some conflicting cues.
No one before us disputes that the act of contributing to political campaigns implicates a “basic constitutional freedom,” one lying “at the foundation of a free society” and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities. Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.