Judge Gorsuch Gives Dissatisfying Written Answer About Citizens United and Expenditures

During the hearings, I criticized an answer Judge Gorsuch gave to Senator Leahy which suggested there was ample room for Congress to regulate expenditures after Citizens United. Derek Muller pushed back a bit but conceded “Judge Gorsuch’s answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate.”

Well Sen. Leahy followed up in a written question, and Judge Gorsuch continues to insist on spending limits being possible upon proof of quid pro quo corruption (which I think is essentially foreclosed by both Citizens United and the follow-up American Tradition Partnership). See page 65 of this document:

13. When I asked you about Citizens United and concerns about corruption, you said, “I think there is lots of room for legislation in this area that the Court has left. The Court indicated that if, you know, proof of corruption can be demonstrated, that a different result may be obtained on expenditure limits.” You then added, “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.” However, Citizens United states that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

In the Bullock case in 2012, the same five justices who decided Citizens United overturned a Montana Supreme Court ruling, and refused even to consider a record showing that “independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”

a. What “room for legislation” were you referring to?

b. What types of expenditure limits would be consistent with Citizens United? Or did you misstate the holding of Citizens United?

RESPONSE: As we discussed at the hearing, the Supreme Court has long recognized Congress’s authority to legislate regarding campaign contributions, expenditures, and disclosures, subject to the constraints of the First Amendment. For example, in Buckley v. Valeo, the Court held that “contribution and expenditure limitations both implicate fundamental First Amendment interests,” and that such restrictions therefore must pass heightened scrutiny. 424 U.S. 1, 23 (1976). At the same time, the Court recognized that one governmental interest sufficient to justify restrictions on contributions and expenditures is the government’s interest in combatting quid pro quo corruption, or the appearance of such corruption. In Buckley, the Court upheld certain contribution limitations enacted by Congress as furthering the compelling interest in combatting corruption. Meanwhile, the Court concluded that certain limitations on independent expenditures by individuals did not sufficiently advance the compelling interest to justify the heavy restriction on speech. Citizens United expanded on this point, holding that certain “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 558 U.S. 310, 314 (2010). Although the Court in Citizens United found that the Government had not shown a compelling interest in the regulation of certain independent expenditures, the Court has not expressly foreclosed any regulation of political expenditures that might implicate the Government’s interest in preventing quid pro quo corruption, or the appearance thereof.The Supreme Court also has recognized Congress’s authority to enact disclosure requirements relating to the political process. In Buckley, the Court identified three governmental interests that can be served by disclosure provisions: (i) equipping the electorate with information as to where political campaign contributions come from and how they are spent; (ii) deterring actual corruption and avoiding the appearance of corruption by exposing large contributions and expenditures to publicity; and (iii) gathering data to detect violations of the contribution limitations. 424 U.S. at 66-68. The Court noted that “disclosure requirements – certainly in most applications – appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68. The Court upheld certain disclosure and disclaimer requirements in Citizens United. 558 U.S. at 319.

(my emphasis)

A far cry from “lots of room for legislation in this area” and still overly softened.

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