Enter Justice Gorsuch. What now for campaign finance reform?

Yesterday, Neil Gorsuch was sworn in to to the Supreme Court. All those who care about getting big money out of politics have real reason to be concerned about Gorsuch’s record. Though Gorsuch has had few opportunities to rule directly on the issue, two opinions raise red flags that Judge Gorsuch could vote to gut the few remaining protections against big money that we have left. Judge Gorsuch’s extreme evasiveness to important questions about his interpretation of the law in this area leave little doubt that the Supreme Court remains unlikely to change its disastrous course on money in politics.

Facing a Supreme Court that is once again antagonistic to reforms that so many Americans agree are needed, it is time to consider that a turn in the jurisprudence does not have to start at the Supreme Court. Even the most well developed legal theories do not begin at the high Court, nor does the Court conjure doctrine out of thin air. The Supreme Court is, in a sense, in constant conversation with the lower federal courts and state supreme courts. This was evident, for example, in the landmark marriage equality ruling Obergefell v. Hodges, which drew on and responded to the logic of several Circuit Court of Appeals opinions regarding state-level marriage equality prohibitions.

In my essay “Laying the Foundation for a New Jurisprudence in State Courts,” I argue that advocates for reducing the role of big money in politics should turn their attention to a state-based legal and organizing strategy designed to give state legislatures and supreme courts breathing room to examine and weigh alternative rationales for money in politics reform, beyond prevention of quid pro quo corruption. With this breathing room, the laboratory of the states can kick the tires on alternative jurisprudences, which until now have primarily existed in books and law reviews. A growing body of law in state courts could help lay the foundation for the Supreme Court to eventually veer towards a new course that better reflects broad cultural norms about the role of money in politics and allows for laws that level the playing field in our elections.

The current formula for judging campaign finance restrictions takes limits on money in politics to be burdens on free speech that can only be justified if they are shown to be narrowly tailored to achieving a compelling state interest. However, contrary to Judge Gorsuch’s misstatement of the law, the Supreme Court effectively views preventing the reality or appearance of quid pro quo corruption as the only compelling state interest that could ever support limits on spending or contributing money. In crafting this jurisprudence, the Court has discounted or ignored the importance of several other democratic values, such as political equality and preventing systemic corruption, among others.

To bring one or more of these rejected yet critical interests back into the equation, states should distinguish their interests in limiting the role of money in politics from that of the federal government. There are two places where advocates can focus this argument: first, the structure of the state’s government and, second, the language of the state’s constitution.

Democratic Structure in the States

First, because states have more direct democratic systems than the federal government their lawmaking structures may be more susceptible to hijacking by powerful interests, giving them a more powerful interest in limiting the influence of money in politics. Because states do not have the complex system of veto-gates between their governmental branches in place at the federal level, it is almost always easier to pass legislation at the state level than at the federal level. These channels of decision-making are therefore more open to manipulation by powerful special interests, particularly mechanisms of direct democracy, like ballot initiatives. This means that state governments have heightened and distinct compelling interests in regulating campaign finance to protect state democracies.

State Constitutional Provisions

Second, state advocates can argue that losing campaign finance regulations would harm their unique constitutional values, deriving either from the words of their founding documents or from their high courts’ interpretations of that language. For example, several states, including California, Colorado, and Florida, have constitutional clauses delineating that “that government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” Arizona’s Constitution requires “that all elections ought to be free and equal.”  Arkansas and Kentucky provide that elections must be “free and without corruption.” The constitutions of Alaska and Connecticut stipulate that “the privilege of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult, or other improper conduct.” Hawaii has a specific constitutional prescription that the legislature set contribution limits. Maryland has a constitutional prohibition on poll taxes and a legislative requirement to pass “laws necessary for the preservation of the purity of Elections.”

In addition to having specific instructions to preserve a broad set of democratic values, almost all state constitutions contain analogous provisions to the U.S. Constitution’s promise of freedom of speech and equal protection. Despite the language of these state clauses being similar or the identical to the federal constitution, state courts are free to interpret them differently than how the Supreme Court interprets the analogous parts of the U.S. Constitution.

Implementing a State-Based Campaign Finance Reform Strategy

These structural and constitutional arguments provide a tangible hook for states to sufficiently distinguish themselves from the U.S. Government in order to justify consideration of additional interests, like political equality. There is much work to be done to put flesh on the bones of this legal theory.

For academics and researchers, a place to start may be a state-by-state survey identifying a complete list of states with unique election related constitutional provisions, how those provisions have been interpreted in state court, and the nature of case law concerning state-level equal protection and free speech provisions.

Attorneys defending state-level campaign finance laws can draw on that work to create robust arguments as to why various interests are undoubtedly compelling to protect states’ chosen democratic structures and promote the values they have enshrined in their constitutions.

Finally, organizers and advocates should consider augmenting this list of constitutional provisions by adding language to their state’s founding document to explicitly promote the interests they deem worthy of advancing, like political equality.