The truth about Gorsuch’s record on ‘money in politics’

March 16, 2017   •  By David Keating   •    •  

Democrats and progressives are losing their minds over President Trump’s Supreme Court nominee, Neil Gorsuch. One left-wing advocacy group released a video titled “3 Reasons to Fear Judge Gorsuch.” Number one? According to them, if Gorsuch is on the Supreme Court, “our elections could be completely handed over to the powerful and the wealthy.”

That ludicrous statement refers to Gorsuch’s concurring opinion in Riddle v. Hickenlooper, a campaign finance case. Riddle challenged Colorado’s contribution limit law as discriminatory.

Was it ever! It allowed major party candidates to raise twice as much money as minor party candidates and independents. Progressives love to say “money isn’t speech,” but Riddle wasn’t about that. It was about equality.

The Tenth Circuit unanimously struck down the contribution limit scheme as a violation of the Fourteenth Amendment’s equal protection clause. A Republican candidate doesn’t get to raise more money from individual supporters than a Green Party candidate. The law must treat everyone the same.

In his Riddle opinion, Gorsuch writes about uncertainty in the Supreme Court’s campaign finance precedents. His sophisticated writing shows he has thought long and hard about these issues and approaches them with principle and rigor.

“No one before us disputes that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities,” Gorsuch wrote. “Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.”

Should progressives worry that Gorsuch may rule against them on campaign finance cases? Probably, given the type of restrictions they support on your free speech.

The silly Colorado law struck down by the court — they wrote it! Common Cause and like-minded groups seeking speech limits put it on the ballot. The goal? Getting money out of politics, of course.

Should Americans worry that campaigns will be “completely handed over to the powerful and wealthy” if the Supreme Court rules more campaign finance laws unconstitutional? No. If anything, the opposite is true. Complex campaign finance laws favor well-funded groups that can hire lawyers to figure them out. The grassroots groups look at the tangled web of rules and often give up.

Gorsuch’s record does not show support for the wealthy over the poor. It shows support for the First Amendment and its protection for free speech. Free speech favors those fighting those in power. Free speech favors those seeking to end corruption.

Many Democrats know their campaign finance proposals conflict with the First Amendment. That’s why Senate Democrats overwhelmingly voted to gut the First Amendment in 2014. It’s why opponents of free speech such as the Brennan Center for Justice warn, “Neil Gorsuch Understands Campaign Finance – And That’s The Problem.” They are afraid Gorsuch will uphold the Constitution’s limits on government’s power to regulate speech.

We should be so lucky. Politicians write campaign finance laws with their own elections in mind. A wary judiciary can keep them in check.

This post originally ran in The Washington Examiner on December 26th 2017.

David Keating

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