For all the noise conservatives make about Constitutional originalism when discussing the Supreme Court, the really radical departures from the traditions of our democracy in the last century have come from conservative justices and their stances on political spending. Starting subtly with Buckley v. Valeo and continuing on to Citizens United, a series of Supreme Court decisions in the last 50 years have repeatedly challenged widely accepted historical limits to political spending. Now, with Judge Neil Gorsuch poised to join the Supreme Court and make decisions on money in politics for decades to come, his views on this issue are critical. The Senate has a duty to the American people to determine how he would rule on money in politics cases, and if his views don’t match those of the vast majority of the American people, he should be rejected.
Our country has a long history of regulating the rich and the powerful to prevent drowning out the speech of its common men and women. The Tillman act, prohibiting corporations from spending money on political campaigns, was, in 1906, promoted by business people as liberating them from being shaken down for donations by their elected representatives. It was signed into law by a Republican president in 1907.
In the 1918 campaign for the United States Senate from Michigan, Truman Newberry spent the then unheard of amount of around one hundred thousand dollars. He won the election, and was subsequently convicted of violating the law, then known as the Federal Corrupt Practices Act. No one questioned the authority of the United States to regulate campaign finance under the United States Constitution, Article 1, Section 4 and the Seventeenth Amendment. Although his conviction was overturned by the Supreme Court, it was not because the court limited the government’s power to regulate political spending. Rather, they reversed only because they decided that the law did not apply to primary elections.
In the 1940’s after the Republican Party took control of both houses of congress, the Taft Hartley Act was passed, prohibiting campaign contributions by labor unions, banks, and corporations. That law was passed with bipartisan support, with a majority of each party voting to override President Harry Truman’s veto.
Today, just as in 1906, the influence of the extremely wealthy in our politics isn’t supporting business or creating jobs; it is only contributing to the growing inequality in our nation. The vast majority of business people and investors need a nation with a robust middle class that can afford to participate both in the economic and in the civic life of our communities.
Unfortunately, most fabulously wealthy political donors don’t have the health of our economy or small businesses in mind when they make contributions - they’re concerned about their own bank accounts and their own political power. As they increase their political power, they increase their ability to advocate for policies that disproportionately help them make more money. As they make more money, they can spend still more on politics and change politics to make yet more money, in a malevolent and immoral cycle.
This cycle of political and economic power building and feeding off of each other is a true threat to our democracy. A small number of people are able to consolidate power for themselves, leaving vast numbers of Americans locked out of both the economy and the political process. Our nation once was government by people who understand this, but recently we’ve lost our way.
Judge Neil Gorsuch’s record on campaign finance has not been encouraging, and his answers to questions by the Senate Finance Committee did nothing to assuage fears about his views on Citizens United and the role of money in politics. It seems clear that his tenure as our 9th Supreme Court Justice, if he’s confirmed, would be a continuation of our current Court’s misguided and ahistorical approach to campaign finance. For most of our history this hasn’t been a partisan issue, and it shouldn’t be one now. The Senate should not confirm Judge Gorsuch because he does not believe that the people, acting through their elected representatives, can limit political spending.