This week, the Supreme Court declined to hear a case challenging restrictions on political party fundraising and spending in the McCain-Feingold Act. This left in place a lower-court ruling upholding these restrictions. Following the Court’s announcement, multiple commentators have noted the implications of the decision on future challenges to McCain-Feingold and even the strength of parties compared to other political actors like super PACs. But another trend was notable from the response to the decision.
Although this outcome represented a victory for campaign finance restrictionists, they still found a target of derision in newly-appointed Supreme Court Justice Neil Gorsuch, who, along with Justice Clarence Thomas, issued an unwritten dissent from the Court’s denial of certiorari. In so doing, both justices indicated that they would have chosen to hear the case rather than let the lower-court’s decision stand. This was outrageous to pro-regulation activists, who promptly fell back into their past attacks on Gorsuch from his Senate confirmation hearing. They had spent months pillorying him as a menace who wanted to allow the rich to buy elections – instead of a jurist with a carefully-considered judicial record defending First Amendment speech, press, assembly, and petition rights. With an “I-told-you-so” tone, they accused Gorsuch of signaling sinister intentions for future campaign finance cases before the Court.
Even worse, the anti-speech lobby’s rhetoric was prominent in numerous news stories covering the Court’s decision. These stories quoted multiple attacks against Gorsuch while barely attempting to balance them with opposing views of Gorsuch and the case. Roll Call quoted just one supporter of campaign finance deregulation against four pro-regulation figures, who accused Gorsuch of being “way out of the mainstream” and “very extreme.” Bloomberg BNA paraphrased only one anti-regulation figure – the lawyer challenging the law – while citing pro-regulation statements from four different people, including an assertion that Gorsuch has a “potentially very damaging view about the constitutionality of campaign finance laws.” US News & World Report employed a 3:1 ratio in favor of campaign finance restrictionists in their coverage.
Taken together, these three articles featured nine unique pro-regulation talking heads or organizations against just three advocates of fewer regulations on political speech. Mainstream media bias and mischaracterization of campaign finance issues is certainly no new trend. But this lack of balance could help perpetuate the myth that Justice Gorsuch holds “extreme views” before he’s even had a chance to do much of anything on the Court.
The failed effort by pro-regulation groups to keep Gorsuch off the Court always smacked of ideologically-driven desperation rather than concerns about qualifications or integrity. Given the bipartisan praise he earned, and the fact that he voted with the majority in 99% of his more than 2,700 appeals court cases, what exactly makes Gorsuch “way out of the mainstream”? Dissents from a decision to deny certiorari are infrequent, but hardly unprecedented. And it is unclear why figures like Rep. John Sarbanes of Maryland and David Donnelly of Every Voice think the dissent was more “troubling” because Gorsuch joined Justice Thomas. The implication here is that even being associated with one of the most senior and impactful members of the Court ought to invite controversy, simply because of his legal philosophy.
Such critics are demonstrating that they think constitutional originalists are inherently illegitimate. This is ridiculous. To be sure, the strong biases in media, academia, and political advocacy in favor of campaign finance regulation allow many groups to toe the same party line. But that doesn’t mean there is an unquestioned consensus that skeptics are blaspheming against. The successes of conservative theories over the past several decades attest to their appeal among brilliant legal minds, declarations of “extremism” notwithstanding. And at the end of the day, a majority of Senators put Gorsuch on the Supreme Court – a Court that has generally become more friendly towards freer political speech rights over the years.
One can call Justice Gorsuch many things, but “outside the mainstream” is not one of them. The speech restrictionists’ attempts to kill his reputation in the cradle will continue to fail while they continue to be baseless. Hopefully, reporters can avoid becoming accomplices in this endeavor.