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.
Washington Examiner: Gorsuch’s record shows strong support for the First Amendment view of campaign finance laws (In the News)
By David Keating
By Ben Paynter
One of the longest held rules in charity is that nonprofits don’t have to publicly disclose who has given them money. It’s a First Amendment issue, since the Supreme Court intervened during the Civil Rights era when state governments in the South tried to make the NAACP publicize its donor lists. Knowing a donor’s association with a controversial cause might lead to them or their group being threatened, limiting their chance for free expression…
Perhaps most surprisingly, while left-leaning groups created the precedent, it’s now right-wing organizations that are paying to defend it. The two cases in question are Americans for Prosperity Foundation v. Becerra, in which the group, which organizes grassroots support of conservative political action, has challenged the California attorney general’s request that all tax-exempt nonprofits submit non-redacted donor lists, ostensibly to give the state more oversight into organizational scams or group corruption. And Independence Institute v. Federal Election Commission, where the organization, a think tank devoted to research and advance libertarian causes, is arguing that if a group issues only policy-influencing ads (instead of candidate-supporting ads) during a campaign election period, they should be exempt from federal election laws that require sharing political donations.
By Eric Wang
For both policy and administrative reasons, most laws must set thresholds below which they do not apply. If every time someone acting below a regulated threshold prompts someone else to advocate lowering the threshold, the law’s scope will constantly expand until everything is regulated. This is both socially undesirable and practically untenable.
Indeed, we see this ill-advised trend in proposals to expand the federal and state lobbying laws, and many of which states have implemented. Last year the New York State Joint Commission on Public Ethics decided to regulate certain public relations consultants as lobbyists. After a wave of protest and litigation, brought in part by the Center for Competitive Politics on behalf of PR firms, the state legislature acted to reign in JCOPE’s overreach…
Many state and municipal lobbying laws and regulatory agencies also purport to impose no minimum threshold for lobbyist registration. In Missouri, the Center for Competitive Politics is representing Ronald Calzone, a concerned citizen who merely shared his views on proposed legislation with state legislators, against the Missouri Ethics Commission’s charges that he failed to register as a lobbyist.
The Intercept: Trump Denounced “Broken System” of Big Money Politics. Neil Gorsuch Could Make It Worse. (In the News)
By Jon Schwarz
It’s particularly easy to imagine a Supreme Court with Gorsuch striking down all remaining contribution limits, since it’s already moving in that direction. In 2014, four years after Citizens United, the Court struck down something that Buckley had held was constitutional: a limit on the aggregate amount any individual could give to all candidates overall per election cycle. It was already set at a level almost no Americans could imagine donating, $48,600. But now the super-rich can give as much as they want to candidates across the U.S. as long as no single one gets more than $5,400.
Notably, Justice Clarence Thomas voted to strike down the limit and wrote a concurring opinion stating that all contribution limits are unconstitutional…
So it’s no surprise that the places like the Center for Competitive Politics, a D.C.-area think tank that exists to dismantle all limits on money in politics, is thrilled by Gorsuch’s nomination – in particular because in his Riddle v. Hickenlooper opinion Gorsuch appreciates “the legal uncertainty surrounding levels of scrutiny” of contribution limits.
By Ilya Somin
Judge Neil Gorsuch is a well-respected jurist and a better Supreme Court nominee than I expected from Donald Trump. In retrospect, I underestimated Trump’s incentive to appease more conventional Republicans by selecting a Supreme Court justice they liked…
Despite my reservations on some issues, Judge Gorsuch might well turn out to be an excellent Supreme Court justice. I am somewhat reassured by co-blogger Sasha Volokh’s discussion of his record on civil liberties, and by this analysis of his limited record on free speech. At the very least, he cannot be dismissed as a mere crony of Trump’s.
NPR: South Dakotans Voted For Tougher Ethics Laws, But Lawmakers Object By Peter Overby South Dakota’s citizen-led experiment to “drain the swamp” of political corruption appears to have lasted less than three months. Lawmakers in the state Senate voted 27-8 Wednesday to repeal the voter-approved initiative and send the measure to the governor. The legislation […]
Bill of Rights Defense Committee & Defending Dissent Foundation: What Does Neil Gorsuch Mean for Civil Liberties? (In the News)
By Sue Udry
On a few issues, Trump’s nominee for the Supreme Court, Neil Gorsuch, is not abominable. But overall, he is cut from the same cloth as Antonin Scalia, and is likely not a man we can count on to cast the deciding vote for liberty from the bench…
Gorsuch doesn’t have a long record here, but a few cases unearthed by David at the Center for Competitive Politics support media freedoms against claims of defamation or invasion of privacy. Gorsuch also ruled against a Colorado law limiting campaign contributions, because they were applied unequally to third parties. His opinion argued that “a state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some “compelling” or “closely drawn” purpose – and Colorado has articulated none.”
By Branko Marcetic
Finally, some of Gorsuch’s writings suggest that, on one of the fundamental issues of the day – the colossal amounts of money being poured into elections by large corporations – he stands quite apart from most of the country. Striking down an inequitable Colorado campaign finance law, Gorsuch suggested that political contributions are a “fundamental right,” restrictions on which demand “strict scrutiny” from the courts. The Center for Competitive Politics, an anti-campaign-finance-regulation organization, liked the wording.
Gorsuch’s stance puts him at odds with not just campaign-era Trump – who built much of his campaign around anger at wealthy donors – but also the public, including Trump’s voters. For nearly two decades, a majority of Americans have supported limiting money’s influence on politics.
Filed Under: In the News
By Luke Wachob
Under the Obama administration, many Democrats were confident that regulating politics would serve their interests and promote fairness at the same time. Already suspicious that conservative groups played fast and loose with the rules, they imagined that the brunt of new rules would fall on groups like Americans for Prosperity or the National Rifle Association. They also had faith that public disclosure of support for advocacy groups would allow allies to expose and shame donors whose pocketbooks stood in the way of their vision of the common good.
After Election Day, the landscape looks vastly different. Allegations of racism, misogyny, and xenophobia failed to stop Trump’s rise, and failed to intimidate his supporters. Now, the laws that invade privacy to root out “dark money” could be used to make government lists of supporters of increased immigration, LGBT rights, abortion rights or criminal justice reform. And instead of going after groups like AFP or the NRA, liberals may worry about Trump targeting groups like Planned Parenthood or the Sierra Club.
As Republicans ascend to the White House, here’s hoping liberals return to their roots. If they were to join with conservatives, it’s possible they could make free speech great again.
By Peter Overby
Voters in South Dakota adopted a package of ethics and campaign finance reforms in November. Now the legislature is declaring a state of emergency in order to repeal it.
(Ed. Note: CCP Research Fellow Scott Blackburn featured at 2:00)