Bench Memos

Law & the Courts

Common Cause’s Chicken Little

In this US News & World Report piece, Karen Hobert Flynn, president of Common Cause, does her best Chicken Little imitation.

Flynn squawks that Supreme Court nominee Neil Gorsuch “stands to further entrench big-money politics as the law of the land and threaten our democracy.” But halfway through her piece, she acknowledges that his “record on money in politics is sparse.”

The only specific claim from Gorsuch’s judicial record that Flynn tries to muster is that his “troubling concurring opinion in Riddle v. Hickenlooper suggests he is open to a higher level of protection to a donor’s right to make political contributions than to every American’s right to vote.” But Gorsuch’s concurring opinion in Riddle v. Hickenlooper isn’t “troubling” at all and suggests no such thing.

The legal question in the case was whether the Constitution allowed Colorado to cap individual contributions to a write-in candidate for the state house of representatives at a level ($200) that was lower than the cap ($400) for contributions to the Republican and Democratic nominees who qualified for the general-election ballot. In a unanimous opinion for the panel, Judge Robert Bacharach, an Obama appointee, ruled that the disparity violated the Equal Protection Clause.

In addition to joining Bacharach’s opinion, Gorsuch penned a brief concurring opinion. Among other things, Gorsuch explained, in response to the minor-party contributors claim that strict scrutiny should apply to the Colorado law, that “we have no controlling guidance on the question [of the level of scrutiny] from the Supreme Court” and that “in what guidance we do have lie some conflicting cues.”

So far as I can tell, the three paragraphs in which Gorsuch presented these “conflicting cues” are the sole basis for Flynn’s characterization of Gorsuch’s opinion as “troubling.” But the fairminded reader will readily discover that Gorsuch was simply highlighting the confusion he saw in the Supreme Court’s then-existing guidance for the lower courts and was not saying anything about how he would approach the issue as a justice (much less saying anything about how the constitutional protection of a “donor’s right to make political contributions” compares to the constitutional protection of “every American’s right to vote”).

Gorsuch also observed in his concurrence that it was “clear” to him that, “with a little effort, Colorado could have achieved its stated policy objectives (and might still) without offending the national charter.” He explained that Colorado could follow the federal model of regulating campaign contributions.

So there is zero basis for Flynn to infer from Gorsuch’s opinion that he would vote “to declare campaign contribution limits unconstitutional.”