New Documents Show A Justice Kavanaugh Would Unleash Even More Big Money in Our Democracy

September 13, 2018
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Donald Trump and The Kavanaugh Family

Recently-released emails from Judge Kavanaugh’s time in the George W. Bush White House provide new insight into the nominee’s view on money in politics—and reveal that his hostility towards any reforms to limit the influence of big money on our political system may be deeper and more radical than his public judicial opinions have suggested.

Why do Kavanaugh’s views matter? A narrow majority of the Supreme Court has shown a increasing willingness in recent years to overturn democratically-enacted campaign finance reforms. The Court’s decision in Citizens United struck down the longstanding ban on corporate independent expenditures, paving the way for super PACs; its decision in McCutcheon opened the door to candidates soliciting six- and seven-figure checks to joint fundraising committees.

If Kavanaugh is added to the Court, he appears likely to accelerate this trend—and might even vote to strike down the “core” campaign finance reforms that are still on the books, like contribution limits and donor disclosure laws.

 

Billionaires Writing $1 Million Checks Directly to Politicians? Sure!

In the 2002 emails, sent during the period that Judge Kavanaugh was advising Bush on the McCain-Feingold law, Kavanaugh boasts about his “pure” view on how campaign finance limits violate the First Amendment.

Although corporations have been barred from giving to candidates since 1907, and individual contribution limits have been on the books since 1925, Kavanaugh suggested that he thinks these laws shouldn’t exist.

In a 2002 email, Kavanaugh expressed his uniquely-held opinion that, while “very few people” take the position that limits on direct contributions to candidates are unconstitutional, “I for one tend to think those limits have constitutional problems.” 

He said it was a “1A problem” that outside groups like the Chamber of Commerce and the Sierra Club could potentially raise and spend unlimited amounts supporting candidates, but because of “contribution limits,” “the candidates cannot respond because they cannot raise money from their supporters in same way that the interest groups can raise money from theirs.”

The problem, according to Kavanaugh, is not that legal loopholes allow corporations and billionaires to funnel millions to special interest groups that spend the money on elections--but that the corporations and billionaires can’t just give those funds directly to politicians.

Kavanaugh echoed these arguments in a 2016 discussion at the American Enterprise Institute.

Without prompting, Kavanaugh declared that he thinks it problematic that “political parties and candidates can’t raise large sums of money, and outside groups can,” and that “the parties have much less power to raise money now than outside groups.”

Kavanaugh wasn’t bothered by the corruptive influence of unlimited sums flowing into our political system—in the same speech, he also declared that money is “absolutely” the equivalent of speech—but instead by the fact that candidates and parties cannot raise as much as super PACs.

At the time, Kavanaugh suggested the Supreme Court might reconsider party contribution limits, but didn’t expect the Court to revisit candidate contribution limits “in the near future.”

But flash back to those 2002 emails, where Kavanaugh wrote “it seems to me that limits on contributions to candidates and limits on contributions to political parties are not readily distinguishable as a constitutional matter.”

So in Kavanaugh’s view, if the Court strikes down party contribution limits as unconstitutional, then candidate contribution limits must follow, since the two “are not readily distinguishable as a constitutional matter.”

Kavanaugh’s judicial record supports these conclusions. In Republican National Committee (RNC) v. FEC case, he acknowledged he was bound by the Supreme Court’s controlling decision in McConnell, and authored a decision upholding the McCain-Feingold law’s party “soft money” contribution limits. But Judge Kavanaugh made clear that he believed the RNC’s arguments against the limits “carrie[d] considerable logic and force”--though as a lower court judge, he lacked the authority to “clarify or refine McConnell” or “otherwise get ahead of the Supreme Court.”

A Justice Kavanaugh, however, would not be similarly bound by precedent and--given his record of judicial activism—appears likely to chip away at contribution limits. 

 

Corporations Secretly Influencing Elections? No problem!  

In yet another email from 2002, Judge Kavanaugh declared that he believed the McCain-Feingold law’s electioneering communication “restrictions are blatantly unconstitutional.” The Supreme Court disagreed, and the following year upheld the electioneering communication provisions in McConnell.  

Throughout the 1980s and 1990s, corporations and unions had evaded federal campaign finance law by spending millions on thinly-veiled election ads supporting or attacking candidates, but which were carefully worded to avoid expressly advocating for or against those candidates. The 2002 McCain-Feingold law sought to close that loophole by regulating ads that mention candidates, are targeted to their electorate, and are aired shortly before an election, but that stop short of express advocacy.  

In the email, Kavanaugh acknowledged that “issue ads” were being used to evade candidate contribution limits and disclosure requirements, but declared that the root of the problem is that limits exist at all. He stated that it “seems clear to me that the issue ads are often done in coordination with candidates because the candidates do not have enough money because, in turn, of the limits on contributions to campaigns.”

Kavanaugh’s personal ideological opinions about “issue ads” and electioneering communications might explain some of the later decisions he made as a judge.

For example, in the 2016 case Independence Institute v. FEC, Judge Kavanaugh went to great lengths to keep alive a challenge to the electioneering communication disclosure provisions, even though they had already been twice upheld by the Supreme Court. The district court had rejected the challenge as “obviously without merit,” but Kavanaugh reversed based on a novel theory that would limit disclosure based on a spender’s tax-status. That theory was subsequently rejected by a three-judge court and the Supreme Court.

And in the 2011 Bluman case, Kavanaugh upheld the ban on contributions and expenditures by foreign nationals—but crafted his opinion to ignore or even negate the application of the foreign national ban to electioneering communications, and to read “issue advocacy” out of the statute altogether.

If Kavanaugh is added to the Court, he very likely would be a vote in favor of striking down common sense political disclosure measures—like the electioneering communications law—that are supposed to maintain transparency and accountability in our democracy.

Kavanaugh’s record already suggested he was hostile to reforms that would limit the influence of wealthy megadonors. These new documents confirm this to be the case.

Brendan directs CLC’s work before federal regulatory agencies, such as the Federal Election Commission (FEC).