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Donors or Voters: Could Gorsuch Join a Divided Court to Favor the Donor Class?

What a time for democracy. Scan the front page of any national newspaper these days, and even the most optimistic of #resistors can feel overwhelmed. The Russian government, say intelligence reports, conducted an “influence campaign” against Clinton and in favor of Trump. Now, the FBI is investigating whether President Trump and/or his associates had ties to such a campaign. Decades ago we feared the Reds infiltrating our land. But top-level collusion between our government and theirs? Not even “The Americans” portrays that scenario. 

As the legitimacy of the current administration is being questioned, many are also asking: is now the right time to fill the ninth seat on the Supreme Court? After all, an FBI investigation into the appointer’s level of coziness with Vladimir Putin is ongoing. Executive Orders and the like can be undone – this president’s attempted travel bans have been axed in court more than once now – but a Supreme Court appointment lasts a lifetime. Trump’s nominee, the 10th Circuit’s Neil Gorsuch, 49, would be the youngest justice on the most powerful court in the country. The question is, what would he do – or fail to do – for the state of our already threatened democracy?

In the past decade alone, at least five justices have led the country in the wrong direction when it comes to our system of governance. As I describe in my piece for the “Beyond Corruption” symposium in the Election Law Journal, “Is the Supreme Court At Odds With Itself When It Comes to Democracy? A Look at the Disparities between Crawford and Citizens United,” a 5-4 majority has given voter suppression laws the green light and unleashed a flood of new money from corporations into the political realm. By elevating the rights of corporations to spend on elections over the right to vote, the Supreme Court has pummeled American democracy at both ends.

In Crawford v. Marion County Election Board, the Court opened the door to state tactics aimed at keeping Americans from voting, reserving our most cherished right to those who’ve been represented from the get-go – at the expense of communities long marginalized. Democracy strike one. A couple years later, in Citizens United, a majority of the justices dismantled longstanding regulatory safeguards to make it easier for corporations – corporations! – to dominate election outcomes by flooding political organizations with dollars straight from their treasuries. We already knew then that money corrupts our political processes – elected officials themselves confessed the point – but Supreme Court justices, seemingly out of touch with a public for whom they administer justice, placed First Amendment rights of corporations over those of human beings, let alone everyday Americans. That’s democracy strike two. 

Not long after that, in McCutcheon v. FEC, the Court took its logic a step further, removing caps on how much an individual may contribute in total to national parties and federal candidates’ campaigns. Strike three, and you’d think we’d be out of luck. And yet, what the Court does next on democracy reform, could help to protect or further damage our politics.

McCutcheon, for example, left open the question of whether wealthy individuals can give as much as their billionaire hearts desire to any single candidate of choice. Imagine the consequences if Robert Mercer, worth a reported $12.5 billion, donated unthinkable sums to his favorite climate-change-denying candidate? Gorsuch, in an earlier opinion coming from a Colorado case, indicated he would give contribution limits the same strict scrutiny he would apply to attempts to limit Americans’ free speech rights, meaning he – and four other justices – could very well eliminate limits altogether if presented with the opportunity. A new flood of money, then, would taint an already broken system.

It’s worth noting that when confronted with the fact that the Supreme Court had overruled an earlier decision of his at the very moment he was testifying for a spot on that bench, Gorsuch acknowledged that “he had been ‘wrong’ and was ‘sorry.’” The disabled child affected by his earlier decision will now get the educational services to which he is legally entitled, thanks to a vindicating decision. But what happens when Gorsuch, siding with at least four other justices, comes down on the wrong side of campaign finance reform? With the Court currently split 4-4 on whether to uphold protections against big money, Gorsuch’s vote for big money would likely have consequential and lasting impacts on each last one of us, with no hope of reversal for decades. 

Given the current state of our democracy, that’s not a chance many of us want to take. Our Supreme Court in the past 10 years alone has inched us closer toward plutocracy and away from a system of governance that accounts for and responds to everyone. As Justice Ruth Bader Ginsburg recently noted, “we are not experiencing the best of times,” but there’s reason to be optimistic “for the long run.” As we wait for that long run to reverse some of the damage done recently, we might be better off with a Justice who could set the Supreme Court back on course for democracy. Some of us don’t have a lifetime to wait.