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Brett Kavanaugh May Soon Unshackle All Rich Political Donors

By Richard L. Hasen, Slate

04 September 18

The Supreme Court nominee opposes even the most basic campaign finance limits.

y the time President Donald Trump runs for reelection in 2020, he might be able to accept unlimited campaign contributions to support his bid, thanks to his nomination of Judge Brett Kavanaugh to the United States Supreme Court. Documents released ahead of Kavanaugh’s confirmation hearings this week that date from his time in George W. Bush’s White House reveal that the judge just might be ready to strike down what’s left of federal law limiting contributions to candidates, as a First Amendment violation. There are two cases heading to the Supreme Court that would allow him to do just that.

As court watchers are well aware, the Supreme Court has been chipping away at campaign finance limits for some years now. In the 2010 case of Citizens United v. Federal Election Commission, the Supreme Court held that corporations have a First Amendment right to spend unlimited sums to support or oppose candidates for office if their payments are made independent of candidates’ campaigns. And in a much less famous but equally important 2014 case, McCutcheon v. Federal Election Commission, the same five-justice majority that decided Citizens United made it harder for courts to sustain the constitutionality of laws—aimed at preventing corruption and its appearance—that limit the amount of money that individuals can contribute directly to candidates. As I explained in Slate when Chief Justice Roberts wrote the majority opinion, McCutcheon was a “subtly awful decision” that was also vintage Roberts: It subtly undermined old precedents to set the stage for their eventual overruling.

Despite the McCutcheon setup, the court has moved slowly. It so far has passed up an opportunity to review precedents dating back to before Justice Samuel Alito joined the high bench in 2006, when the court flipped from a body deeply deferential to campaign finance regulation to one deeply skeptical of it. The court has repeatedly refused to reconsider the constitutionality of the 2002 McCain-Feingold law limiting the ability of political parties to take “soft money” donations from wealthy individuals, corporations, and labor unions, as well as refusing to consider overturning a pre-Alito case, Beaumont v. Federal Election Commission, barring corporations from contributing directly to candidates.

If, as expected, Judge Brett Kavanaugh joins the court, he could well push it to move more quickly, in a way that could eventually cause the downfall of the federal law that limits an individual to contributing no more than $2,700 per election to a candidate for federal office. Kavanaugh worked in the Bush White House when it was looking at the McCain-Feingold law, which Bush eventually signed even while expressing constitutional reservations about parts of it in a signing statement.

Recently released documents from the time that Kavanaugh was advising Bush on McCain-Feingold show a person seriously skeptical of campaign finance laws’ constitutionality. Kavanaugh expressed deep misgivings about laws that let outside groups spend unlimited sums in elections while limiting how much candidates and parties can raise to respond to such ads. He told another adviser that he saw “serious First Amendment problems” with capping what people can contribute to candidates, adding that “it is possible my 1A views are even purer than yours.” He also noted that while “very few people” thought contribution limits to candidates are unconstitutional, “I for one tend to think those limits have constitutional problems.”

As Common Cause’s Steve Spaulding notes, “Kavanaugh himself acknowledges in the docs that he’s far outside the mainstream here.” The documents reveal a person who is deeply skeptical of even the most basic campaign finance limits, the ones that say a wealthy person cannot simply write a $100 million check to a candidate to run for office. (Lest you think that amount is fanciful, it is less than the amount that casino magnate Sheldon Adelson and the Koch Brothers network have spent in recent elections, and Trump impeachment advocate Tom Steyer has spent nearly that much in the past.) The inequality of influence and corruption and its appearance that could stem from such a system is profound.

And yet this could well be the direction in which we are heading. Right now pending before the court is a cert. petition asking the Supreme Court to review Montana’s campaign contribution limits. The issue in the Ninth Circuit case of Lair v. Motl may seem a bit esoteric; it concerns how much evidence of corruption a state must produce to support a campaign contribution limit. But make no mistake: The Lair case, brought by Citizens United brainchild Jim Bopp, builds upon Chief Justice Roberts’ McCutcheon decision to argue for a standard which would lead courts to strike down virtually all contribution limits.

The court is also considering petition from opponents of Austin, Texas’ city-level campaign contribution limits. Although a Fifth Circuit panel upheld Austin’s limits in Zimmerman v. City of Austin, newly confirmed Judge Jim Ho wrote a strong dissent from the entire Fifth Circuit’s decision not to rehear the case. Ho, a former clerk of campaign finance law opponent Justice Clarence Thomas, issued a screed arguing that all campaign finance laws violate the First Amendment, and people who don’t like big money in politics should simply shrink the size of government, so the government doesn’t have a lot of goodies to give away.

Neither Lair nor Zimmerman directly call the federal $2,700 campaign finance limit into question, but either or both cases could be the vehicle to create a precedent which would compel federal courts to strike down the $2,700 limit. It could even happen before the 2020 election. And because this is a constitutional ruling, there would be precious little that Congress could do about it. (Not that Mitch McConnell—who has helped engineer these events, from supporting the relevant lawsuits to blocking Merrick Garland and shoving Kavanaugh through the Senate without a full document release—would want to do anything but pop open a bottle of champagne.)

As I recently wrote in Slate, the world of election law and voting rights is about to get much worse with Kennedy’s departure. Judge Kavanaugh is already on record as supporting porous campaign finance laws that would allow the Russian government and other foreign entities to spend unlimited sums in our elections. It now appears he believes wealthy Americans have a constitutional right to directly fill candidate coffers with unlimited sums, gaining unprecedented influence over these officials. With Kavanaugh replacing Justice Kennedy and Chief Justice Roberts in the middle of the court, the era of big money in politics may soon get a heck of a lot worse.