Judge Gorsuch Misstates Citizens United’s Holding, and Inexplicably Says Congress Has Ample Room to Enact Expenditure Limits

From an exchange with Sen. Leahy at today’s hearing:

Judge Gorsuch, questioned on Citizens United, said the following (my transcription):

I think there is lots of room for legislation in this area that this court has left. The Court indicated that if proof of corruption can be demonstrated a different result may obtain on expenditure limits….

I think after Citizens United made clear that quid pro quo corruption remains a vital concern and a subject for potential legislation. And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to with expenditure limits, or whether it has to do with disclosure requirements.

This is incorrect. In American Tradition Partnership v. Bullock, the Supreme Court majority (the same majority in Citizens United) held that it would NOT consider evidence of corruption to justify a spending limit. It needed only a paragraph to dispose of the case given its holding in Citizens United. The dissenters (the same dissenters in Citizens United) argued in contrast that the Court should consider evidence of corruption which could justify an expenditure limit.

Instead, in Citizens United the Court left NO room for spending limits, apart from spending limits applied to foreign individuals and entities (which it allowed via a summary affirmance in Bluman v. FEC). 

I explain all of this in Citizens United and the Illusion of Coherence in the Michigan Law Review.

So either Judge Gorsuch does not understand the scope of Citizens United and its holding, or he is trying to soften its harshness by wrongly suggesting Congress has room to legislate spending limits.

I don’t believe he would actually uphold any spending limit Congress passes (expect as to foreign spending).  I explain why based on reading his earlier opinions here. 

Update: Derek Muller disagrees.

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