Concerned About the Oversized Role of Money in Politics? Three Questions Senators Must Ask Judge Gorsuch

1. Do you agree that wealthy donors translating their massive economic power directly into political influence is a problem that should be taken into account when considering rules governing spending on elections?

Because the super-rich control so much of our country’s wealth and we lack strong protections against big money in politics, they have access to political power that most of us cannot afford: the power to affect both elections and public policy through private spending. In the face of increasingly expensive elections, members of an elite donor class acts as gatekeepers, shaping who runs for office in the first place. Candidates who don’t have wealthy personal or professional networks often face significant barriers to running for office and winning.

Legislatures elected under this system do not reflect America as a whole and are significantly more responsive to the preferences and priorities of the affluent than the rest of us. And, because of a long history of state-sponsored oppression of people of color—and staggering racial wealth gaps born out of that oppression—a system fueled by the wealthiest 1% of Americans means a system fueled predominantly by white people, for white people.

On multiple levels, then, we do not all come to the political table as equals. Yet for decades, an increasingly disconnected Supreme Court has refused to acknowledge political inequality as a critical problem facing American democracy. Instead, it has insisted that the only valid concern that lawmakers can address when enacting campaign finance rules is quid pro quo corruption: essentially, bribery.

If there’s any hope in limiting the oversized role of money in American politics, Senators and all of us need to know whether a potential Supreme Court justice will join the radical bloc of the Court insisting that bribery is the only legitimately important concern. Judge Gorsuch’s record suggests he would.

2. Do you think corporations should be allowed to make contributions directly to candidates?  Why or why not?  

The Supreme Court’s deeply flawed line of cases on money in politics has struck down many of the protections to limit the influence of big money in politics. Now, few policies remain in place to insulate our democracy from dominance by the donor class. Two of the few protections to survive Supreme Court review thus far are: (1) limits on how much people can donate to candidates, parties, and PACs (contribution limits); and (2) bans preventing corporations from contributing directly to candidates. Judge Gorsuch’s record, which is troubling on campaign contributions and colossally pro-corporate, threatens to decimate even these meager protections.

Judge Gorsuch’s ruling that the company Hobby Lobby has a religious right to deprive its employees of coverage for reproductive health services demonstrates that he supports, and is even willing to expand, the deeply flawed Citizens United opinion. In that case, a 5-4 Supreme Court held that policies preventing corporations from dominating electoral spending are “discriminatory” against corporations, which are entitled to the same First Amendment protections as human beings. This extreme reading of the First Amendment ignores important power dynamics and realities, and helps entrench the dominance of privileged elites.  

In all, Judge Gorsuch’s record suggests he would consistently and vigilantly protect the rights of the powerful business sector– perhaps the least vulnerable group in America—instead of the rights of all of us. Senators should directly confront Gorsuch about whether he would stack the deck even more in favor of corporations by striking down bans on corporate contributions to candidates.

3. Do you believe that the right to contribute money to an electoral campaign is a fundamental right that should receive the Court’s most stringent protections? What about the right to vote?

In his only opinion on money in politics, Judge Gorsuch joined an opinion striking down Colorado contribution limits. But in his concurring opinion, he suggested that he might have given a donor’s right to contribute money to a candidate an even higher form of protection than it already receives. This greater protection, known as “strict scrutiny”, is the approach that the radical conservative bloc of the Supreme Court has used to strike down limits on how much people can spend on campaigns—whether on their own campaigns or on their pet candidates’ campaigns through so-called “super PACs.” Under this strict approach, contribution limits could be eliminated completely. 

Applying strict scrutiny to a donor’s right to contribute or spend money is extreme. At times, the Court has not even afforded the freedom to vote with this level of protection. Consider its decision in the Crawford case. Far from applying strict scrutiny, the Court brushed aside evidence of the thousands of Indianans burdened by the voter ID law—disproportionately people of color, people with disabilities, poor people, trans people, elderly people. When the right to contribute or spend money is protected with more vigor than the right to vote, the system is fundamentally broken. Judge Gorsuch must be pressed about how he would treat these two very different rights: one which can be accessed without regard to wealth, and one which cannot.  

Senators and Americans deserve to know how Judge Gorsuch would answer these questions before confirming him to a life-time seat on the nation’s highest court.

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