But how is that we, in a capitalist system, usually determine the value of something? By how much we are willing to pay for it, of course. And there is nothing wrong with that. How much voters are willing to contribute to a candidate is a direct reflection of how strongly they support that candidate, just as how much we are willing to pay for an automobile shows how badly we want to drive that automobile... Wealth is scattered so broadly in this country, and held by so many different people of diverse political viewpoints, that there is no danger of one mainstream political ideology unfairly having an upper hand in the raising of funds for political campaigns.11
Mr. Bush apparently fails to recognize what makes our democracy fundamentally different than our economy: while it may be fine for some of us to drive fancier cars, we’re all supposed to have an equal say over the decisions that affect our lives. He pretends that significant discrepancies in wealth that play out across race, gender, and class do not shape what Americans are “willing” to contribute to candidates.12 And, he ignores compelling empirical research that demonstrates that the wealthy in fact have starkly different views than the rest of us, especially on core economic issues; and that these views translate quite readily into government action.13
Damien Schiff’s views on money-in-politics are equally disturbing. The Court of Federal Claims does not rule on relevant cases, but can be a launching point for future judicial appointments so we feel compelled to register our opposition at this stage.
As an attorney for the Pacific Legal Foundation, Schiff filed an amicus brief in the Citizens United case featuring two pro-big-money arguments.14 Schiff argued for more corporate political spending, ignoring that for-profit corporations are economic actors that actually distort our democracy when bringing their wealth to bear upon policy questions in narrow service of their bottom line.15 More important, he called for an extreme form of strict scrutiny review of money in politics laws, requiring “actual evidence of quid pro quo corruption” to sustain any campaign finance rules—an even narrower standard than the Roberts Court’s current restrictive view that would threaten remaining protections.16
During the June 14, 2017 Senate Judiciary Committee hearing for these nominees, Senator Klobuchar questioned Mr. Bush about his amicus brief authorship and Senator Whitehouse spoke powerfully how “the Citizens United explosion of unlimited money” has led to “a politics in which...billionaires and massive special interests can drive their influence through our political system in unprecedented ways that would have made Teddy Roosevelt throw up, that would have horrified James Madison and Thomas Jefferson.”17 Yet neither Bush nor Schiff repudiated their troubling views as expressed through blogging (in the case of Bush) or amicus representation (in the case of Schiff).
The role of big money in politics became a central issue in the debate over Justice Neil Gorsuch’s confirmation to the U.S. Supreme Court because the public cares deeply about this issue.18 This continued in the debate over Judge Thapar’s confirmation.19 And it must continue here.
To ensure that all voices are heard, not just those of powerful corporations and wealthy donors, it is essential that we confirm judges and justices who understand that the Constitution gives we the people the power to protect our democracy from big money.
Unfortunately, John K. Bush and Damien Schiff do not appear to see our pro-democracy Constitution as the vast majority of Americans do—and for this reason we urge you to oppose their confirmation to the U.S. Court of Appeals for the Sixth Circuit and the Court of Federal Claims, respectively.
Americans for Democratic Action
Association of Flight Attendants, CWA
Center for Popular Democracy
Coalition to Restore Democracy
Communications Workers of America Concerned Citizens For Change
End Citizens United
Free Speech for People
Main Street Alliance
Mi Familia Vota
National Black Justice Coalition
National Council of Jewish Women
National LGBTQ Task Force Action Fund
National Organization for Women
Other 98% Action
People for the American Way
Small Planet Institute
Service Employees International Union
United for Democracy Now
1 Adam Lioz, Breaking the Vicious Cycle: Rescuing Our Democracy and Our Economy By Transforming the Supreme Court’s Flawed Approach to Money in Politics, DEMOS (2015).
2 Adam Lioz, Juhem Navarro-Rivera & Sean McElwee, Court Cash: 2016 Election Money Resulting Directly from Supreme Court Rulings, DEMOS (2017).
3 Judge Gorsuch’s Extreme Views Could Undermine Urgently Needed Money-in-Politics Reforms, DEMOS & CAMPAIGN LEGAL CENTER (January 31, 2017); Rick Hasen, “Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear,” ELECTION LAW BLOG (May 22, 2017).
4 Winter v. Wolnitzek, 186 F.3d 673, 693 (E.D. Ky. 2016).
5 Brief of United States Senator Mitch McConnell as Amicus Curiae in Support of Movants/Cross- Respondents, Martin v. Commonwealth, 96 S.W.3d 38 (Ky. 2003) (No. 2000-SC-1101).
6 ALLIANCE FOR JUSTICE, AFJ Nominee Report: John K. Bush (June 2, 2017).
7 G. Morris, “Barack Obama and Monica Lewinsky Change Democrats’ Minds,” ELEPHANTS IN THE BLUEGRASS (June 20, 2008).
8 Buckley v. Valeo, 424 U.S. 1 (1976); Republican National Committee v. FEC, 445 U.S. 955 (1980).
9 The Roberts Court has cut back on public financing programs by striking “triggered” matching provisions, but the core policy of providing public funding for campaigns remains on firm constitutional ground. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).
10 See e.g. Sean McElwee, Whose Voice, Whose Choice? The Distorting Influence of the Political Donor Class in Our Big-Money Elections, DEMOS (December 8, 2016).
11 G. Morris, “The Right to Put Your Money Where Your Mouth Is,” ELEPHANTS IN THE BLUEGRASS (February 6, 2008).
12 Sean McElwee, Whose Voice, Whose Choice? The Distorting Influence of the Political Donor Class in Our Big-Money Elections, DEMOS (December 8, 2016).
13 David Callahan & J. Mijin Cha, Stacked Deck: How the Dominance of Politics By the Affluent and Business Undermines Economic Mobility in America, DEMOS (2013).
14 Brief Amicus Curiae of Pacific Legal Foundation in Support of Appellant on Supplemental Question, Citizens United v. FEC, 558 U.S. 310 (2010) (No. 08-205).
15 Id. at 11-17.
16 Id. at 4.