The elevation of D.C. Circuit Court Judge Brett Kavanaugh to the Supreme Court could have a profound impact on the rules governing the American democratic system.
In recent years, the Supreme Court has swiftly remade the landscape of American politics, gutting 1960s-era civil rights laws restricting voter suppression, sharply weakening labor unions, and deregulating the campaign finance system to allow for wealthy individuals and corporations to exercise greater influence over elected representatives. With President Donald Trump’s pick for the Supreme Court, that influence is poised to grow.
Kavanaugh’s appellate court decisions and public comments suggest that he will accelerate the trend toward a political system dominated by wealthy elites — often operating in the shadows, without any form of disclosure.
In the minds of conservative legal strategists, the First Amendment’s protections for free speech can be harnessed to justify virtually any intervention in politics. This expansive view of free speech has been used to oppose or undo any campaign finance regulation, any rule enhancing the political strength of organized labor, any requirement for donor disclosure, or any prohibition on the transfer of billions of dollars into the political system.
In decision after decision, Kavanaugh has embraced this theory and wielded the First Amendment as a cudgel to unravel decades of laws designed to ensure that ordinary Americans are not squeezed out of the electoral process by organized economic power.
At a March 2016 event at the American Enterprise Institute, a neoconservative Washington think tank, Kavanaugh was asked point-blank if he believes that “money spent during campaigns does represent speech, and therefore deserves First Amendment protection.” His answer: “Absolutely.”
In 2009, Kavanaugh authored an opinion in a case called EMILY’s List v. Federal Election Commission, a decision that paved the way for the unlimited corporate spending in the election system. The EMILY’s List case challenged campaign regulations designed to impose contribution limits on nonprofits engaging in direct election advocacy. The rules were crafted in the wake of the 2004 presidential election, in which certain nonprofit organizations — known as “527” groups for the relevant section of the tax code — were created to circumvent limits on large donations for election purposes.
“The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office,” wrote Kavanaugh, overturning a previous district court decision.
Over the years, one of the most aggressive groups dedicated to litigating against campaign finance rules in support of unlimited private donor power has been the Center for Competitive Politics, a nonprofit led by Republican legal scholars. Embracing the latest trend of weaponizing the First Amendment, the organization rebranded last year and is now known as the Institute for Free Speech.
In a statement posted this week, the group extended a strong endorsement to Trump’s pick. In the past, Kavanaugh has appeared alongside Institute for Free Speech leader Brad Smith, moderating a Federalist Society panel on the importance of donor secrecy. But it is Kavanaugh’s long record of campaign deregulation that earned him high praise. Kavanaugh’s opinion in the EMILY’s List decision, the institute gushed in a post on its site, “foreshadowed the Citizens United and SpeechNow.org opinions” — two federal court cases that relied on free speech principles to upend limitations on corporate and private campaign spending.
While Citizens United formally legalized unlimited corporate, union, and individual spending in the election system, the SpeechNow.org decision in its immediate wake allowed the creation of expenditure-only committees, also known as Super PACs. That decision, which Kavanaugh joined in ruling against the Federal Election Commission, held that “the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.”
Kavanaugh’s work, however, was far from done — much to the Institute for Free Speech’s delight. The group proudly lists a number of cases in which Kavanaugh has struck down FEC rules following the EMILY’s List decision.
Advocates for a well-regulated campaign finance system largely echo the Institute for Free Speech’s contention that Kavanaugh’s record shows that he is likely to rule in favor of more unrestricted political spending.
“Kavanaugh has fully embraced the notion that money is indistinguishable from speech, and his record shows a willingness to go out of his way to narrow or question laws designed to limit the influence of the ultrawealthy over our political system,” says Brendan Fischer, director of the federal reform program at the Campaign Legal Center. “It appears that Kavanaugh’s approach to campaign finance law has been to elevate the rights of those who already have the greatest power and privilege, with little regard for the consequences to our democracy.”
Even in cases in which Kavanaugh has upheld campaign finance rules, he has opened the door to more deregulation. In 2010, he authored an opinion supporting existing FEC rules limiting contributions to political parties, but noted that such limits were simply consistent with longstanding Supreme Court precedent — the sort of precedents he will now be in a position to overturn.
Speaking at an event two years ago, Kavanaugh suggested that the Supreme Court should revisit the limit on political party contributions. Asked generally about campaign finance jurisprudence, Kavanaugh discussed the role of limits to candidates and political parties in the age of Citizens United. The case, he said, had created an environment in which “the political parties and candidates can’t raise money and outside groups can.” He added that he doubted the Supreme Court would reverse the cap on contributions to candidates, but said that the court might consider revising the rules on political party donations.
If confirmed to the Supreme Court, Kavanaugh might get an opportunity to make such a change. Last month, the D.C. Circuit certified Libertarian National Committee v. FEC, a case that challenges donation limits to political parties on the grounds that such restrictions are a violation of the First Amendment, and that the structure of existing limits on a variety of types of party funds effectively imposes content-based restrictions on a political party’s free speech.
In another decision generally viewed as supporting extant campaign finance regulations, Kavanaugh hedged by crafting his opinion to leave the door open to future deregulation.
In Bluman v. FEC, a case challenging the prohibition of foreign election spending, Kavanaugh wrote an opinion upholding the longstanding law. His opinion, however, narrowly defined the ban only to apply to “express advocacy,” rather than general issue expenditures. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate,” he wrote.
That distinction is critically important. Increasingly, a tidal wave of campaign spending has concealed itself as “issue advocacy.” Issue advocacy advertisements allow donors to avoid FEC election rules if the ads do not explicitly call for the election or defeat of a candidate. To any ordinary person, though, these ads — like a television commercial telling voters to call a Democratic lawmaker and tell him how they feel about the supposed “Ground Zero Mosque” — can appear to be campaign advertisements, even if they do not use the magic words “elect” or “vote for.”
Rick Hasen, an election law expert at the University of California at Irvine, has noted that while Kavanaugh’s opinion in Bluman “might look like a ruling against deregulation, in fact, it is not.” Most of the Russian social media advertising flagged by Special Counsel Robert Mueller’s investigation, for example, would qualify as issue advocacy rather than express advocacy, Hasen has argued, meaning that much of the hubbub about so-called Russian interference would, by Kavanaugh’s lights, be perfectly legal campaign spending.
“I believe that a Justice Kavanaugh could well vote with a new SCOTUS majority to hold that laws effectively limiting foreign influence in our elections violate the First Amendment,” Hasen wrote.
Across his years on the D.C. Circuit, there are many cases in which Kavanaugh has used the First Amendment to enshrine the privileges of the powerful. In 2015, as In These Times reported, Kavanaugh ruled that a casino was simply exercising its First Amendment rights by calling the police on its own workers who were engaged in a peaceful demonstration — for which they had a permit. He also ruled that net neutrality rules to protect an open internet were a violation of the First Amendment rights of cable companies and other internet service providers to limit bandwidth for certain content.
The next case that may reshape the political landscape could be on donor disclosure. The 9th Circuit Court of Appeals is currently hearinga case concerning whether the state of California can collect the major donor lists of advocacy groups such as Americans for Prosperity Foundation, the lobbying and campaign arm of the billionaire Koch brothers’ political machine.
In this arena, Kavanaugh’s record again suggests that he may side with secrecy for the billionaires spending untold sums to influence public policy and election campaigns. The Institute for Free Speech, in its reviews of his jurisprudence, also pointed to Kavanaugh’s opinion in Independence Institute v. FEC as an example of the judge’s sterling campaign finance record. The case revolved around the Independence Institute, a nonprofit that does not disclose its donors, and its attempts to purchase campaign season radio advertising. The ads mentioned a Democratic senator during his re-election campaign, ostensibly about a legislative concern rather than as an election issue.
The use of such ads in close proximity to an election are often attempts by campaign donors to conceal their identity under the guise that they are merely informing voters of important issues, rather than attempting to persuade their ballot choices. The FEC, recognizing this tactic, had developed rules on such communications around an election season, requiring some minimal donor disclosure for election season advertising.
A district court judge had dismissed the Independence Institute’s case, noting that even the Citizens United ruling had maintained support for donor disclosure. But the group appealed, and Kavanaugh supported the institute’s request for a three-judge panel to hear the challenge to the FEC disclosure regulation. Although he did not rule explicitly in favor of the institute’s arguments opposing disclosure requirement, Kavanaugh suggested that the institute’s nonprofit status could afford the group an exemption and that the case was worthy of further review. (The panel of judges eventually sided with the FEC.)
The Independence Institute, like Americans for Prosperity Foundation, is a 501(c) nonprofit group; both are highly engaged in policy debates. While its unclear exactly how Kavanaugh might rule on the Supreme Court on such issues, his confirmation may depend on the very same secret-money groups. The Judicial Crisis Network and Americans for Prosperity are part of a coalition of conservative 501(c) nonprofit groups that are planning to spend $10 million on advertisements to pressure the Senate into confirming Kavanaugh. Neither organization discloses its donors.