Supreme Court justices are supposed to interpret the Constitution faithfully, not make the law as they wish. Senate Democrats and President Trump’s Supreme Court nominee Neil Gorsuch agree that the Constitution limits government’s power to regulate “money in politics.” So why are Senate Democrats attacking Gorsuch for standing by those limits?
Bernie Sanders is demanding that Judge Gorsuch explain his “opposition to campaign finance reform.” Jeff Merkley is accusing conservatives of “packing the court” and threatening “the rights of ordinary citizens to have their voices heard in elections.” Sherrod Brown has already announced that he will vote against Gorsuch, saying, “I cannot support any nominee who does not recognize that corporations are not people.”
These attacks are beyond misleading. “Court-packing” brings to mind politically motivated efforts to increase the number of justices on a court, not the routine filling of a vacant seat. And so-called corporate personhood has been enshrined in law for centuries and is almost universally accepted by jurists. But there’s an even better reason to take these criticisms with a grain of salt.
These same senators voted in 2014 to amend the Constitution specifically because their idea of “campaign finance reform” could not exist under our current Constitution. In fact, 54 Democratic senators voted in favor of an amendment giving Congress nearly unlimited power to regulate political speech, effectively gutting the First Amendment. Speaking against the proposal, legendary First Amendment litigator Floyd Abrams noted that “the notion that democracy would be advanced — saved, ‘restored’ — by limiting speech is nothing but a perversion of the English language.”
That effort failed to clear even the Senate. In demanding that Gorsuch embrace their view of “money in politics,” Democrats are asking him to uphold a version of the Constitution that does not exist.
This is not asking for a strong and independent judiciary; this is asking for a rubber stamp in black robes.
Some Democrats argue that the proposed 2014 amendment was necessary only because of the Supreme Court’s 2010 ruling in Citizens United. But the Democratic senators’ own statements undermine the notion that they were concerned only with Citizens United. Supporters of the amendment did not merely call their proposal a good idea, or a shortcut around the Court’s conservative majority. They sold it as an essential remedy for an ailing political system.
“This constitutional amendment is what we need to bring sanity back to elections and restore Americans’ confidence in our democracy,” said then–majority leader Harry Reid. “It’s clearer than ever that we need a constitutional amendment to restore integrity in our election system,” said Senator Tom Udall, the amendment’s chief sponsor.
Senate Democrats were tired of the First Amendment standing in their way when it came to political speech, and they wanted to do something about it.
Surely these senators wouldn’t propose something as serious as a constitutional amendment just to score cheap political points. They must have truly believed that our Founding document stood in their way.
The 2014 amendment would have reached far beyond Citizens United to overturn all of the Supreme Court’s campaign-finance jurisprudence. Its language was so vague that even supporters of the amendment admitted that it was impossible to predict its impact. What was clear was that Senate Democrats were tired of the First Amendment standing in their way when it came to political speech, and they wanted to do something about it.
Had they been successful in amending the Constitution, Senate Democrats could now insist that Judge Gorsuch hold to their view of government’s role in regulating political speech. But they were not, and rather than pretend otherwise, they should learn to live with the Constitution we have.
Judge Gorsuch, for his part, should be proud of his record of support for First Amendment rights. His opinions and rulings demonstrate a strong belief in every American’s right to exercise freedom of speech without fear of harassment or intimidation.
If Gorsuch deals with the Constitution as it is, rather than as Democrats wish it to be, that should not be a criticism; it should be the highest praise. That’s how our republic is meant to function.
Democratic senators have long advanced myths about money’s role in the political process, but this is one argument we don’t have to settle on the merits. Advocates for amending the Constitution don’t have standing to demand judges do their dirty work for them.
This post originally ran in National Review on March 3rd 2017.