Gorsuch and Democracy Reform: Lots of Unanswered Questions

Donald Trump’s Supreme Court nomination will likely shape the court – and American law — for decades to come, as it is expected to restore the conservative majority lost when Justice Antonin Scalia died last year. 

So it’s no wonder that a long list of advocacy organizations, including Common Cause, are now busy dissecting the record of Trump’s nominee, appeals court Judge Neil Gorsuch. 

The questions here touch on fundamental concerns about the direction of American democracy. Where does Gorsuch stand on attempts to regulate money in politics, protect voting rights, end partisan gerrymandering, uphold high ethical standards for public officials and employees, and other critical democracy issues?           

Let’s start by looking at Gorsuch’s views on money in politics.  Campaign finance laws have been under absolute siege by the Supreme Court in recent years.  In Citizens United v. FEC (2010), the court ruled that corporations can spend as much money as they want to influence elections, as long as they do not donate directly to or formally coordinate with a candidate.  In McCutcheon v. FEC (2014), the court struck down limits on individual contributions to a national party or federal candidate committee over a two-year period.  These cases have triggered an explosion of spending on campaigns, much of it by donors taking advantage of loopholes in the tax laws that allow them to remain anonymous.

In 10 years on the bench, Gorsuch has authored only one opinion pertaining to money in politics.  And unfortunately, it’s troubling.  In it, he wrote that judges should look at the right to contribute and spend money it in the same way they look at free speech.  Gorsuch shares that view with Justices Clarence Thomas and Scalia, who arguably have been the court’s fiercest opponents of restrictions on political contributions. 

On voting rights, we know even less about Gorsuch’s views. His only written opinion in that area came as part of a unanimous three-judge panel that made it easier for applicants to public agencies to get voter registration forms.  As more states enact strict voter ID laws and limit early voting and voter registration opportunities, voting is becoming more difficult for millions of our citizens, particularly Hispanic- and African-Americans. In Shelby County v. Holder (2013), the Supreme Court struck down a key provision of the Voting Rights Act, effectively ending the requirement that states with a history of restricting voting rights get approval from the federal government before changing their voting laws.

Gorsuch’s views on redistricting issues are slightly clearer, but not reassuring.  In a commentary on the Supreme Court’s decision in Vieth v. Jubilerer, he wrote that partisan gerrymandering is not an issue that can be decided by the courts. That puts him at odds with Justice Anthony Kennedy, for whom Gorsuch once clerked and whose 2004 opinion in Vieth has opened a door to other suits challenging partisan gerrymanders. Gorsuch’s position is particularly concerning considering the census coming up in 2020, after which district lines will be redrawn.

There are other major reasons to be uneasy about Gorsuch’s nomination, prominent among them his apparent sympathy to the idea that corporations are people under the law. His clients as a lawyer in private practice included the U.S. Chamber of Commerce, the largest corporate lobby in the country.

The bottom line is that Gorsuch’s record on democracy issues demands close scrutiny and tough questions from senators in the coming weeks.