Campaign Finance Laws And Supreme Court Nominee Kavanaugh

Jul 31, 2018
Originally published on July 31, 2018 10:41 am
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Compared with the issue of abortion, campaign finance law has gotten relatively little attention in the run-up to Supreme Court nominee Brett Kavanaugh's confirmation hearings. But as NPR's Peter Overby reports, this is something that's pretty relevant to Kavanaugh's nomination. In fact, the current campaign finance laws are something Kavanaugh helped to build.

PETE OVERBY, BYLINE: As an appeals court judge, Kavanaugh has pulled campaign finance laws' right word. He's been roughly in sync with Anthony Kennedy, the justice he once clerked for and now might succeed. Chiraag Bains is director of legal strategies for the progressive advocacy group Demos. He said liberals should take note of Kavanaugh's campaign finance opinions.

CHIRAAG BAINS: I think his record on money and politics should be right up there alongside the likelihood that he'll overturn Roe or strike down the ACA.

OVERBY: That's the Affordable Care Act. One of Kavanaugh's decisions is in the news lately because it's about foreign money. A Russian company is citing the law to fight an indictment for allegedly financing social media ads during the 2016 campaign. Kavanaugh's opinion is from 2011. It spotlights a loophole in the federal prohibition against foreign money in American elections. He emphasizes the difference between saying vote for or against a candidate and what's called issue advocacy - saying that a candidate is a good or bad on a certain issue. Defending the law that day in 2011 was Adav Noti, then a lawyer for the Federal Election Commission.

ADAV NOTI: All the court needed to say was this ban on foreign nationals spending money in American elections is clearly constitutional under decades and decades of Supreme Court precedent.

OVERBY: But instead...

NOTI: The first question I was asked was by Judge Kavanaugh, who asked me a series of hypotheticals about foreign nationals spending money on issue advocacy, which was not one of the topics that was actually before the court in that case.

OVERBY: The law prohibited essentially all foreign money. But Noti he was getting questions about issue advocacy.

NOTI: It seemed like Judge Kavanaugh was interested in writing an opinion that dealt with that topic even though it wasn't raised in the case.

OVERBY: The Supreme Court unanimously affirmed Kavanagh's opinion. James Bopp is a leading conservative lawyer in campaign finance.

JAMES BOPP: He did recognize that, you know, people who are not citizens of the United States can engage in issue advocacy. In other words, they can talk about, you know, people should be for this or for that. I think that was correctly decided.

OVERBY: Bopp says he considers a different campaign finance decision as Kavanaugh's best. Kavanaugh wrote in favor of the liberal women's group EMILY's List. He said EMILY's List could have a nonprofit wing to raise unlimited funds for issue advocacy. And this was in 2009, the year before Justice Kennedy wrote the Supreme Court's Citizens United decision. James Bopp won a similar argument at a different appeals court.

BOPP: EMILY's List is one of the cases decided recognizing - legalizing super PACs prior to Citizens United.

OVERBY: The key logic in EMILY's List, Citizens United and even the foreign money case - candidates for office are not directly involved with issue advocacy, so they can't be corrupted by the unlimited money. Again, Chiraag Bains of the group Demos.

BAINS: That opinion, to me, shows that even before Citizens United Kavanaugh had bought into the idea that donors have the right to make limitless expenditures based on the out-of-touch idea that if spending isn't officially coordinated with a candidate, it cannot ever be corrupting.

OVERBY: It also suggests the Kavanaugh might be ready to go further down that trail as a Supreme Court justice. Peter Overby, NPR News, Washington.

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