WASHINGTON ― Newly minted Supreme Court Justice Neil Gorsuch showed his hand Monday on where he will likely stand on cases that would increase the amount of power held by large political donors.
As the Supreme Court declined to hear a major campaign finance case that could have led to the lifting of campaign contribution limits to political parties, Gorsuch joined Justice Clarence Thomas in an unwritten dissent. That means Gorsuch and Thomas wanted the court to hear the case, and likely wanted to vote to overturn yet another limit on big money in politics.
The case, Republican Party of Louisiana v. Federal Election Commission, challenged contribution limits placed on state-level political parties by the 2002 McCain-Feingold reform law. These are the limits on “soft money,” unlimited contributions to the parties for supposedly non-electoral activities, imposed in the wake of scandals related to both how the money was raised and how it was spent.
Gorsuch’s decision to join Thomas, a noted opponent of campaign finance restriction with a written record opposed to all campaign contribution limits and some disclosure rules, suggests that he, too, will be an outspoken critic of restrictions on money in politics.
During his confirmation hearings, Gorsuch refused to answer questions about his views on this subject ― as he did with nearly every other topic presented to him.
Rick Hasen, election law professor at the University of California, Irvine, wrote of Gorsuch’s dissenting vote: “He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases.”
The conservative Supreme Court majority that came into being after Justice Sandra Day O’Connor retired from the bench has struck down numerous campaign money limitations. It struck down a key pillar of the McCain-Feingold law in its 2010 Citizens United decision by allowing independent spending by corporations and unions. In the 2014 McCutcheon case, the conservative majority killed limits on the aggregate amount a single donor can give in a two-year election cycle.
In McCutcheon, Chief Justice John Roberts hinted that he might want to reconsider the court’s ruling upholding the McCain-Feingold soft money restrictions. Roberts wrote that the “gratitude” members of a party may feel toward donors to their particular political party “stems from the basic nature of the party system.” Roberts then cast doubt that these contributions could be viewed as an opportunity for “quid pro quo corruption,” the only justification the conservative majority allows for restrictions on campaign money.
This was the third time conservative lawyer Jim Bopp has brought a challenge to the McCain-Feingold “soft money” ban to the Supreme Court. In his first attempt, the court declined to take the case, although three justices dissented. The parties involved in the second challenge dropped their case before the court could decide whether to take it up.