Sotomayor: Really not the Supreme Court nominee to protect political speech

A couple days ago, I blogged about “why the Center for Competitive Politics is concerned about Judge Sonia Sotomayor’s nomination” to the highest court in the land.  In that post, I noted that, “in the past, as a judge interpreting the law, [Judge Sotomayor] has failed to protect the very foundation of every American’s Dream, namely, that each citizen will be able to fully and freely participate in our political process.”

As evidence of Judge Sotomayor’s hostility to the exercise of a citizen’s political rights of free speech and association, I cited her “vote to leave intact a ruling” — later reversed by the Supreme Court 6-3 — “that not only upheld extremely low candidate contribution limits imposed by the State of Vermont, but also more than suggested that candidate expenditure limits might be constitutional, too.”  In other words, Judge Sotomayor took the position that she could thumb her nose at the First Amendment, as well as the Supreme Court’s seminal campaign finance interpretation of that constitutional provision in Buckley v. Valeo.

I also noted that “the threat [Judge Sotomayor] poses to the First Amendment … rights of all Americans” was all the more ominous “because … of her early appointment[ ] … as a member of the New York City Campaign Finance Board.”  That appointment worried us here at CCP because, as a prior member of a campaign finance regulatory board, we could “only guess that such an experience either led to or only reinforced the view that the government can, and should, exercise a great deal of control over the electoral process, and more specifically over the speech permitted by candidates and citizens during campaigns.”

Well, we have confirmation of that now.

In continuing to follow-up on Judge Sotomayor’s speaking and writing record, I was tipped to a speech Judge Sotomayor delivered in February 1996 as part of the Donahue Lecture Series at the Suffolk University Law School.  That speech was later published as a law review article, and sheds quite a bit of light on just how pro-regulatory Judge Sotomayor’s personal views are when it comes to campaign finance issues.

The most relevant paragraph of Judge Sotomayor’s speech-turned-law-review-article — co-authored with Nicole A. Gordon, then Executive Director of the New York City Campaign Finance Board — reads as follows (minus the footnotes):

The tolerance in this country for questionable behavior by public officials is illustrated by the persistence of extremely troubling — but legal — practices in the public arena.  In one of the murkiest and least well[-]controlled areas, we find ourselves debating what the quid pro quo’s are for campaign contributions.  Here we have abandoned standards we would surely apply in any other context.  We would never condone private gifts to judges about to decide a case implicating the gift-givers’ interests.  Yet our system of election financing permits extensive private, including corporate, financing of candidates’ campaigns, raising again and again the question what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate.  Can elected officials say with credibility that they are carrying out the mandate of a ‘democratic’ society, representing only the general public good, when private money plays such a large role in their campaigns?  If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions.”  (Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 42 (1996))

Then, going on to tackle those dreaded lobbyists, the paragraph continues (again minus the footnotes):

As Congress revamps many questionable practices, including the receipt of gifts from lobbyists, it must monitor … the public’s satisfaction both whether inappropriate activity is being left unregulated and whether laws and regulations that are put in place are actually enforced.  The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct.”  (Id.)

Needless to say, it’s hard to know where to begin to address Judge Sotomayor’s broad assertions.  Indeed, in reading that single paragraph, it seems as though Judge Sotomayor took to the podium to deliver her lecture after drinking the Kool-Aid served to her by any one of the leaders of the campaign “reform” community (i.e., Fred Wertheimer & Co.).

Nonetheless, some brief response is in order.

Just like the “reformers,” Judge Sotomayor seems predisposed to see “corruption or its appearance” anywhere and everywhere the first dollar might be even tangentially connected to politics.  Of course, the Supreme Court has never defined the only constitutionally recognizable interest in regulating political speech and association nearly so broadly.  And, common sense and history both tell us that viewing “corruption and its appearance” so broadly makes no sense.  After all, “We the People” have elected our representatives through privately financed campaigns for more than two centuries now, and America hasn’t done that badly.

Moreover, Judge Sotomayor seems to suggest that the way to eliminate all of the rampant “corruption and its appearance” she sees would be to impose mandatory public financing for political campaigns — as well as, presumably, prohibiting anyone not subject to government control and oversight from speaking up in connection with elections.  Of course, this idea is not new — it’s exactly what the “reformers” really want.  But the Supreme Court has, likewise, consistently ruled that neither can the government force candidates to accept public financing and, hence, limitations on their First Amendment rights, nor can it restrict individual citizens and independent groups from exercising their First Amendment rights to speak out in elections, even when they expressly advocate the election or defeat of a candidate.

In other words, Americans should see Judge Sotomayor’s nomination to the highest court in the land for what it increasingly appears to be — especially in light of her apparent belief that appellate courts are “where policy is made” — namely, a vote to restrict the First Amendment rights of candidates, political parties, individual citizens and constituent groups to fully and freely participate in our democratic political process, not to mention a vote for extensive government ownership of and control over elections.

Let me say it again, Judge Sotomayor is really not the Supreme Court nominee we wanted.

The Center for Competitive Politics is now the Institute for Free Speech.