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Brett Kavanaugh, Who Has Ruled Against Campaign Finance Regulations, Could Bring an Avalanche of Big Money to Elections

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12.07.2018

The elevation of D.C. Circuit Court Judge Brett Kavanaugh to the Supreme Court could have a profound impact on the rules governing the American democratic system.

In recent years, the Supreme Court has swiftly remade the landscape of American politics, gutting 1960s-era civil rights laws restricting voter suppression, sharply weakening labor unions, and deregulating the campaign finance system to allow for wealthy individuals and corporations to exercise greater influence over elected representatives. With President Donald Trump’s pick for the Supreme Court, that influence is poised to grow.

Kavanaugh’s appellate court decisions and public comments suggest that he will accelerate the trend toward a political system dominated by wealthy elites — often operating in the shadows, without any form of disclosure.

Kavanaugh has wielded the First Amendment as a cudgel to unravel decades of laws designed to ensure that ordinary Americans are not squeezed out of the electoral process.

In the minds of conservative legal strategists, the First Amendment’s protections for free speech can be harnessed to justify virtually any intervention in politics. This expansive view of free speech has been used to oppose or undo any campaign finance regulation, any rule enhancing the political strength of organized labor, any requirement for donor disclosure, or any prohibition on the transfer of billions of dollars into the political system.

In decision after decision, Kavanaugh has embraced this theory and wielded the First Amendment as a cudgel to unravel decades of laws designed to ensure that ordinary Americans are not squeezed out of the electoral process by organized economic power.

At a March 2016 event at the American Enterprise Institute, a neoconservative Washington think tank, Kavanaugh was asked point-blank if he believes that “money spent during campaigns does represent speech, and therefore deserves First Amendment protection.” His answer: “Absolutely.

In 2009, Kavanaugh authored an opinion in a case called EMILY’s List v. Federal Election Commission, a decision that paved the way for the unlimited corporate spending in the election system. The EMILY’s List case challenged campaign regulations designed to impose contribution limits on nonprofits engaging in direct election advocacy. The rules were crafted in the wake of the 2004 presidential election, in which certain nonprofit organizations — known as “527” groups for the relevant section of the tax code — were created to circumvent limits on large donations for election purposes.

“The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office,” wrote Kavanaugh, overturning a previous district court decision.

Over the years, one of the most aggressive groups dedicated to litigating against campaign finance rules in support of unlimited private donor power has been the Center for Competitive Politics, a nonprofit led by Republican legal scholars. Embracing the latest trend of weaponizing the First Amendment, the organization rebranded........

© The Intercept