Albert W. Alschuler is the Julius Kreeger professor emeritus at the University of Chicago Law School.
As a candidate, Donald Trump called super PACs “very corrupt,” “a scam” and “a disaster,” castigating both his fellow Republicans and his Democratic opponent for being dependent on cash from these groups. In a nation in which most voters believe their own representatives in Congress have sold their votes for cash or campaign contributions, his promise to “drain the swamp” resonated.
So much for that. With President Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court, the president is attempting to place the man who created the super PAC on the highest court in the land.
When people complain about money in politics, they often bemoan the 2010 Supreme Court decision Citizens United v. FEC. But before there was Citizens United, there was Emily’s List v. FEC, the 2009 case that allowed unlimited contributions to super PACs.
Kavanaugh wrote the opinion in Emily’s List as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, striking down restrictions on contributions to independent political committees. In the opinion, he declared that these committees “are constitutionally entitled to raise and spend unlimited money in support of candidates for elected office.” He reasoned that it was “implausible” that contributions to independent groups could corrupt candidates.
Trump had it right; Kavanaugh had it wrong. Contributions to super PACs can corrupt. In the recent prosecution of Sen. Robert Menendez (D-N.J.), for example, prosecutors alleged that a co-defendant made two $300,000 contributions to a super PAC supporting Menendez’s reelection in exchange for the senator’s aid in resolving a Medicare billing dispute. Although a judge concluded after a hung jury that the government had not proved its case, he ruled that designating a super PAC as the recipient of a payment cannot legalize bribery or make bribery a First Amendment right.
For 42 years, the Supreme Court has upheld the constitutionality of limiting contributions to candidates, but Kavanaugh’s ruling provided an easy way around the limits — allowing donors to give millions of dollars to support a candidate so long as the money goes to a group “independent” of the candidate. No legislator voted for this topsy-turvy system of campaign financing, and no sane legislator ever would.
In fact, Kavanaugh appeared ready to go further. He acknowledged that his ruling would create an “asymmetry” between how the law treats money going to independent groups and money going directly to candidates. His solution? Raise or eliminate the limits on contributions to parties and candidates.
Kavanaugh’s ruling was too much even for Janice Rogers Brown, the conservative judge on the D.C. Circuit who once described the 1937 Supreme Court decision upholding the New Deal as “the triumph of our own socialist revolution.” Kavanaugh’s opinion, Brown argued, resolved questions the parties had not argued and gave the plaintiff a broader victory than it had sought. Moreover, she said, Kavanaugh’s decision was “flatly” inconsistent with a Supreme Court decision upholding limits on contributions to political parties. Although Brown disapproved of this decision, she emphasized that lower-court judges were required to follow it.
Four months after Kavanaugh wrote his opinion, the Supreme Court handed down Citizens United, striking down bans on independent expenditures by corporations and labor unions. Two months after that, the D.C. Circuit relied on Citizens United when it held in SpeechNow.org v. FEC that Kavanaugh’s reasoning in Emily’s List was correct.
As my co-authors and I explain in a law review article, however, the SpeechNow ruling was mistaken. Nothing in Citizens United supports the right to give unlimited sums to super PACs. That’s why my colleagues and I are representing members of Congress and congressional candidates seeking to bring that issue before the Supreme Court.
Opinion polls reveal that faith in our democracy is at a historic low, and super PACs have become powerful symbols of corruption. The judiciary’s award of First Amendment protection to this form of barely disguised bribery may have made people angry enough to elect Trump. For the president to elevate to the Supreme Court the judge most responsible for the super PAC is the height of irony. Even if Kavanaugh’s confirmation seems an all-but-foregone conclusion, opponents should make clear that the president has betrayed the people who elected him.