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.