As Judge Brett Kavanaugh’s Supreme Court confirmation hearings have gotten underway this week, one critical area of his jurisprudence has been underexplored: Judge Kavanaugh’s views on campaign finance law. After all, he could rule on President Donald Trump’s own legal exposure for possible criminal violations of campaign finance laws. More fundamentally, Judge Kavanaugh has played a leading role in undermining legal limits on big money in elections. He has done so by misinterpreting a major Supreme Court precedent. This record reinforces widespread concern that he will tilt the court against “settled law” in Roe v. Wade and other cases.
The most important manifestation of Judge Kavanaugh’s campaign finance perspective is his opinion in the 2009 D.C. Circuit Court case Emily’s List v. Federal Election Commission. There, Judge Kavanaugh declared unconstitutional decades-old limits on large contributions to nonprofit groups spending in federal elections. The 2–1 decision was sternly criticized at the time by fellow conservative George W. Bush appointee, Judge Janice Rogers Brown. Notably, her dissent expressed “grave doubts about the court’s analysis” of Supreme Court precedents.
Making his rounds in the Senate, Kavanaugh has emphasized his appropriate respect for judicial precedent. Yet, as Judge Brown observed, the Emily’s List opinion was in “perhaps irreconcilable tension” with the then-reigning precedent of the Supreme Court.
Emily’s List is a top federal PAC. It challenged revised FEC regulations that had limited its use of donations exceeding federal limits for election activities that simultaneously benefited state and federal candidates. Kavanaugh determined the regulations went beyond federal law. But the main thrust of his opinion was much broader. Under the Constitution, he argued, the federal government could not put any limits on contributions to PACs and nonprofits that spent independently of candidates—even for purely federal elections. That would violate the First Amendment’s guarantee of freedom of speech.
Kavanaugh acknowledged that the Supreme Court had recognized the government’s legitimate anti-corruption interest in regulating campaign money. However, he maintained that the court’s precedents defined corruption narrowly as candidates and donors exchanging “dollars for political favors”—or appearing to do so. Under that standard, he deduced, it was “implausible” that contributions to nonprofit entities, which did not contribute directly to candidates but supported them only through independent spending, would be corrupting. In reality, it should have been very plausible since the donors would remain free to communicate their support to benefiting candidates. After limits were eventually struck down, 80 percent of the top 100 individual donors to independent spenders in the 2012 and 2014 elections also gave directly to the same candidates they supported through their contributions to independent groups.
Judge Brown agreed with Kavanaugh that the regulations were illegal and moreover constituted a “weighty burden on speech.” “But,” she cautioned, “there is a rub. We sit on a lower court and ‘must follow the binding Supreme Court precedent’ until the Court overrules it. … Stare decisis means nothing if we are only bound by cases with which we already agree.” This was a direct rebuke—Brown proceeded to highlight Kavanaugh’s disregard for key portions of the most recent and relevant Supreme Court precedent on corruption, the 2003 case McConnell v. FEC. She showed that the McConnell court had in fact employed an “expansive” definition of corruption, one “not limited … to the elimination of cash-for-vote exchanges” between donors and candidates but extending to “the broader threat from politicians too compliant with the wishes of large contributors.” Moreover, the court had upheld Congress’ right to enact “broad prophylaxes” to prevent candidates and parties from circumventing their contribution limits. McConnell, she concluded, was therefore “broad enough to encompass some limits on independent expenditure committees.”
Kavanaugh contended that McConnell focused on restricting large contributions to political parties, not independent spending groups. Brown countered, “Nothing in [McConnell’s] logic clearly precludes” Congress or the Federal Election Commission from similarly regulating independent spending groups, particularly those with “a self-proclaimed electoral mission.”
Just six months later, though, the full circuit took up the very same constitutional issue in SpeechNow.org v. FEC. It abandoned Kavanaugh’s reading of the old precedents and tacitly approved Brown’s. Nevertheless, it held that a newly minted decision of the Supreme Court, Citizens United, had “retracted” McConnell’s and other cases’ “expanded” definitions of corruption. The new definition—quid pro quo deals between candidates and donors—was the same narrow one that Kavanaugh had wrongfully drawn from prior precedents in Emily’s List. The circuit then cited this new standard to reaffirm Judge Kavanaugh’s dubious opinion that unlimited contributions to independent spenders do not corrupt candidates.
After SpeechNow.org, super PACs and other nonprofit independent spenders poured $1.43 billion into the 2016 federal elections—22 percent of total spending. Moreover, their funds were concentrated on the most competitive races. These groups were overwhelmingly financed by the wealthy few. In the 2016 election cycle, the top 1 percent of individual donors (516 people) provided 76 percent of reported contributions; the top 100 givers alone supplied 61 percent. Notwithstanding current political rhetoric, there is no greater threat to U.S. democratic elections than this emerging plutocracy. Judge Kavanaugh showed his willingness to misinterpret precedents as a lower-court judge in order to undo laws that were keeping that threat at bay. There’s every chance that he will go even further once his job includes the power to reverse precedents.
For his zeal to overturn legal limits on contributions to independent spending groups, his magical precocity in anticipating the Supreme Court’s new, “crabbed” definition of corruption, and his success in selling some improbable reasoning to his colleagues, Kavanaugh might be considered the godfather of super PACs. For his flawed interpretations of Supreme Court campaign finance precedents—and what these portend for his attitude toward “settled law” —he merits wider Senate inquiry into his judicial record.