Alan Dershowitz: Time to fill the gaping hole in the Constitution
Kavanaugh record hints at judicial activism in American election law
Newly publicized documents involving Judge Brett Kavanaugh should sharpen the focus on his approach to election law. These documents, combined with his prior decisions on money in politics, suggest that he is outside the mainstream and may engage in judicial activism that could threaten the remaining protections we have against elections dominated by a small group of anonymous donors. The documents reveal a deep skepticism of campaign contribution limits, which the Supreme Court has long upheld to protect against the corruption of our democracy.
Before a Senate confirmation vote, Kavanaugh should be pressed for answers about his opinions in several cases that leave a legacy suggesting he would be more aggressive in lifting restrictions on big money than Justice Anthony Kennedy, who was certainly no friend of reform, but who at least supported the disclosure of money in politics.
We both served as associate general counsel at the Federal Election Commission, the agency tasked with maintaining the integrity of our elections. One of us argued a case in which Kavanaugh authored an opinion related to foreign spending in American elections and the other argued a case before Kavanaugh regarding political action committee spending in elections. While Kavanaugh is an intelligent lawyer who exercises good temperament in the courtroom, his record suggests he could become a judicial activist that pursues an aggressively deregulatory agenda if confirmed to the Supreme Court.
In the case about foreign involvement, Benjamin Bluman v. Federal Election Commission, the alarmingly narrow opinion of Kavanaugh opened the door to more foreign spending to influence our elections. In light of foreign manipulation of digital advertising platforms to spread divisive messages intended to influence the 2016 election, the United States needs more stringent regulation of foreign interference. Yet, the narrow interpretation Kavanaugh used here likely would not cover more than a small fraction of the campaign activity attributed to Russian operatives. Disturbingly, a Russian company indicted in the special counsel probe repeatedly cited the Kavanaugh decision to defend the legality of its alleged spending on American politics.
Even worse, in Emily's List v. Federal Election Commission, Kavanaugh appeared to engage in unwarranted judicial activism and helped pave the way for super PACs. Deregulating even more than the plaintiff had requested, and without giving the parties a written opportunity to address his novel theories, Kavanaugh ignored binding Supreme Court precedent. He ruled that nonprofit organizations have a constitutional right to accept unlimited contributions from individuals and then spend that money directly on federal election activity without restriction.
Kavanaugh brushed off fears that even massive outside spending had the potential to corrupt the political process, even though he also conceded that donors "may generate gratitude from and influence with officeholders and candidates." His aggressive and mistaken constitutional analysis sparked a stinging separate opinion from another conservative judge, Janice Rogers Brown, who derided his activism and explained why his constitutional analysis was contrary to Supreme Court precedent.
Thus, Kavanaugh appears ready and willing to use the First Amendment as a tool to unravel decades of laws put in place to ensure that ordinary Americans are not drowned out by money in politics as they participate in our system of government. This proclivity raises the stakes for two major cases that the Supreme Court could review in relation to campaign contribution limits, one from Montana and one from Texas. If wrongly decided, these cases could become vehicles to strike down the current $2,700 limit on individual contributions to federal candidates, possibly before 2020. This would be disastrous for our political process.
The district court decision in Emily's List, followed by the Supreme Court decision in Citizens United, paved the way for the phenomenon of super PACs that support a single candidate and can accept unlimited campaign contributions from anyone seeking to influence that candidate. We are now at a point where these super PACs brazenly coordinate with political campaigns by paying for fundraising events, advertising for them, and promoting their candidates. Unfortunately, government regulators are not lifting a finger. The public understands the serious corruption risk posed by these super PACs and does not support their expansion.
Before a vote, Kavanaugh must be pressed about his views on the scope of laws seeking to shield our elections from the influence of foreign powers. He must also be asked about his views on contribution limits and disclosure. The future integrity of our elections depends upon it.
Adav Noti is senior director of litigation and David Kolker is counsel at the Campaign Legal Center. They both served as associate general counsel at the Federal Election Commission while Brett Kavanaugh served as a judge on the United States Court of Appeals for the District of Columbia.