The role of money in politics, and the impact of the Court’s jurisprudence on it, is likely to play a prominent role in the upcoming Supreme Court confirmation fight. Despite the Roberts Court’s gutting of campaign finance regulations in cases like Citizens United, important safeguards like transparency rules, contribution limits, and bans on foreign spending in U.S. elections remain constitutional.
But given the Court’s approach over the last decade, even these last remaining protections could be at risk. As Judge Brett Kavanaugh gets set to answer questions from the Senate Judiciary Committee, a look at his record offers cause for deep concern.
In his 12 years as a federal appeals court judge, Kavanaugh has cast doubt on the constitutionality of fundraising limits; suggested a way to get around disclosure laws; and even gone out of his way to limit the reach of the foreign spending ban.
In fact, one of his most notable decisions in 2009 presaged Citizens United itself, freeing nonprofit corporations from campaign spending rules. The next year, Citizens United held that all corporations have the right to spend unlimited money on electoral advocacy and set the stage for almost all contribution limits for groups unaffiliated with candidates and parties to be eliminated. That is how we got super PACs (a type of political action committee that can raise unlimited funds) and more shadowy “dark money” organizations that don’t reveal their donors.
Still, even as the Supreme Court has thrown out various safeguards, it didn’t eliminate all rules. Most notably, the Court has steadfastly embraced transparency for campaign spending as a valid means to deter corruption and keep voters informed. We have a dark money problem because the Court’s decisions created legal loopholes that Congress and the Federal Election Commission refuse to fix. But the courts aren’t stopping them from doing so. Indeed, states like California have made great progress toward solving this problem in their own elections.
That could change. Opponents have increasingly set disclosure rules in their sights. An influential panel of Kavanaugh’s own court, the D.C. Circuit, proclaimed in 2016 that “[d]isclosure chills speech,” and suggested the Court revisit its pro-disclosure jurisprudence. Kavanaugh was not on that panel, but his decisions suggest that he too may be skeptical of disclosure rules. In another case that year, he suggested politically active groups might be able to use 501(c)(3) tax status to evade transparency, with the added bonus of a tax deduction.
Kavanaugh also has sought to narrow the reach of the foreign spending ban. The Citizens United Court vehemently denied its ruling would open the floodgates to foreign spending in our elections, and the Court later summarily affirmed a lower court decision written by Kavanaugh himself upholding the federal ban on some types of foreign campaign spending.
In that ruling, however, Kavanaugh went out of his way to note that he was interpreting the law to prohibit only “express campaign speech” by foreign nationals, leaving other ads permitted, even those clearly intended to influence an election.
The vast majority of campaign ads purchased by Russian operatives in 2016 fell into this latter category. Tellingly, a Russian firm indicted by Robert Mueller for election interference cited Kavanaugh’s decision in its defense. If Kavanaugh’s ruling represents the outer limit of what the government may prohibit, it will be infinitely harder to curtail foreign meddling in future elections.
Finally, there’s the issue of contribution limits. The Supreme Court has long upheld limits on how much one can give directly to a particular campaign or party committee, along with rules that classify money spent in collaboration with them as a type of contribution. The fact that candidates and party leaders routinely flout contribution limits by working “hand-in-glove” with super PACs has more to do with a failure to close legal loopholes and enforce existing laws than with anything the Court has said.
But overturning contribution limits is a top priority for many in the conservative legal movement, and Kavanaugh has signaled he may be supportive. In a 2010 ruling, he wrote that political party fundraising limits could be inconsistent with Citizens United and suggested the Court may want to “clarify or refine” its approach.
Other courts have said candidates and outside groups have a virtually limitless right to collaborate on electoral advocacy, which basically renders contribution limits meaningless. If the Supreme Court goes down this road, top donors will have even more dominance than they do now.
We’re at a pivotal moment. The Court has repeatedly failed to anticipate or acknowledge the negative consequences of its campaign finance rulings and seems unlikely to retreat from them. At the same time, its approach is extraordinarily unpopular. One recent survey indicated that three quarters of Americans would support a constitutional amendment to overturn Citizens United.
Will the Court risk further backlash by sweeping away more campaign finance regulation, or will it bow to what most Americans want and leave room for common-sense safeguards? The man who could cast the deciding vote will be appearing before the Senate Judiciary Committee to answer some questions. Senators should ask him to level with the American people about his intentions.
(Photo Illustration: Brennan Center/Shutterstock.com)