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Neil Gorsuch Understands Campaign Finance – And That’s The Problem

A Gorsuch opinion from the Tenth Circuit may tip his hand that he opposes regulating money in politics.

February 3, 2017

It’s Supreme Court predic­tion season with Tenth Circuit Judge Neil Gorsuch’s nomin­a­tion to fill the late Antonin Scali­a’s seat by Pres­id­ent Trump (Or by whomever he outsourced the job. I’m look­ing at you Feder­al­ist Soci­ety and Herit­age Found­a­tion).  Now every­one (includ­ing me) is poring over his past decisions to see what they could mean for the laws most in flux before the Supreme Court.

I’ve hunted for clues about what Gorsuch believes about about money in polit­ics. He presides at the Tenth Circuit, which covers Wyom­ing, Color­ado, Utah, New Mexico, Kansas, and Oklahoma.  From a campaign finance perspect­ive, most of the cases come from Color­ado, which has tried to improve its campaign finance laws both through stat­ute and by amend­ing its state consti­tu­tion.

Vari­ous aspects of the Color­ado campaign finance laws have landed in the Tenth Circuit, which is not known for being a partic­u­larly hospit­able venue for reformers.  One 2014 case called Riddle v. Hick­en­looper has a concur­rence writ­ten by Gorsuch.  So what can we learn from this opin­ion about his style of judging, his views of campaign finance reform and what he might do if he is elev­ated to the Supreme Court?

Riddle v. Hick­en­looper involved three candid­ates vying for a seat in the Color­ado House of Repres­ent­at­ives. There were two major party candid­ates and one write-in candid­ate. Indi­vidual contri­bu­tions to the Repub­lican and Demo­cratic candid­ates were capped at $400, while the limit for the write-in candid­ate was $200. The reas­on­ing for the law was that major party candid­ates (typic­ally) have to go through a primary while minor and write-in candid­ates do not. The write-in candid­ate sued, claim­ing that the lower cap was a viol­a­tion of contrib­ut­ors’ rights under the Four­teenth Amend­ment’s equal protec­tion clause.  The district court dismissed the claim, saying the contri­bu­tion restric­tions were consti­tu­tional.  But a three-judge Tenth Circuit panel (consist­ing of two Repub­lic­ans and one Demo­crat) unan­im­ouly reversed the lower court, find­ing that the dispar­it­ies in contri­bu­tion limits were indeed a viol­a­tion of the equal protec­tion provi­sion.

Gorsuch took the time to write a separ­ate concur­ring opin­ion. What’s encour­aging about Gorsuch’s opin­ion is that he accur­ately discusses complex campaign law. And this takes some time and skill.  Trust me, I’ve read plenty of lower court opin­ions in campaign finance cases where the lower court judges (or their over­whelmed clerks) can’t follow the ins and outs of the excep­tions to the excep­tions in campaign finance law. These details do not stump Gorsuch. 

He writes thought­fully and incis­ively about how the Supreme Court has been unclear about exactly which level of scru­tiny applies to equal protec­tion objec­tions to differ­en­tial campaign contri­bu­tions. In the end, he concludes that whether the stand­ard is strict scru­tiny or inter­me­di­ate scru­tiny, the Color­ado law cannot justify allow­ing major party candid­ates to raise twice as much as minor party candid­ates.

Gorsuch also deserves credit for craft­ing his opin­ion narrowly and taking the time to note the limits of the case’s hold­ing.   As he wrote, “[h]aving said this much, it is worth paus­ing to emphas­ize what isn’t said in these pages. Noth­ing in what I’ve sugges­ted or what the court holds intim­ates that Color­ado must adopt a per-elec­tion-cycle rather than a per-elec­tion approach to the regu­la­tion of campaign contri­bu­tions.”  This limit­ing language appears to display sens­it­iv­ity to the fact that Color­ado has great latit­ude to choose its own means of elec­tion admin­is­tra­tion and campaign finance.  This shows judi­cial incre­ment­al­ism and a laud­able degree of modesty.

But there are a few words from Gorsuch’s opin­ion which should give campaign finance reformers pause.  For one, he wrote “[n]o 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.”  In other words, Gorsuch is main­tain­ing the link between and polit­ical money and free speech. He added, “[t]he plaintiffs before us don’t complain that Color­ado’s contri­bu­tion limits viol­ate their First Amend­ment rights because, say, the limits are too low for every­one.”

This last quote is ambigu­ous.  It is not clear whether there is an inad­vert­ently miss­ing word “they” before “say” which would mean he was attrib­ut­ing this state­ment to the plaintiffs in the case. But the way it is writ­ten it sounds like  Gorsuch himself is saying the contri­bu­tions are too low for every­one. The limits at issue were $400 for major party candid­ates and $200 for minor party and write in candid­ates.  And if this is his true belief, it would demon­strate hostil­ity to one of the basic pillars of campaign finance reform since Water­gate: modest contri­bu­tion limits.

So the good news is Gorsuch can navig­ate his way through a tangle of preced­ent—a basic qual­i­fic­a­tion for a jurist.  The bad news is he may harbor anti­pathy to regu­lat­ing money in polit­ics. And if Gorsuch is elev­ated to the Supreme Court, he can help conser­vat­ives move the goal post to strict scru­tiny, so that Color­ado’s and other states’ attempts to temper the role of money in polit­ics will be far more diffi­cult to justify in court.

(Photo: Think­Stock)