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Analysis

Are the Last Key Campaign Finance Laws in Kavanaugh’s Sights?

The SCOTUS nominee could support efforts to weaken the rules even further, his record suggests

August 1, 2018

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)