President Donald Trump’s decision to nominate 10th Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court on Tuesday won praise from Republican elites hoping for the second coming of the late Justice Antonin Scalia. But the nomination also put the administration on the wrong side of one of the top issues on the minds of a supermajority of voters: the influence of big money in politics. Judge Gorsuch’s willingness to let the wealthy flood elections with unchecked amounts of cash is a gaping vulnerability that Senate Democrats can and should exploit in the coming nomination fight.
Just before President Trump made his nomination, a new poll ― conducted by Hattaway Communications and ReThink Media ― revealed that a staggering 93 percent of voters want a Supreme Court justice who is “open to limiting the influence of big money in politics.” This deep desire cuts across the partisan divide ― 98 percent of Democrats, 90 percent of Republicans and 88 percent of independents say this is important to them. Voters clearly agree that any nominee to the Supreme Court should support common-sense protections that ensure everyday Americans get an equal say in their government. In fact, 77 percent of all voters ― including 70 percent of Trump voters ― say that Congress should reject any nominee who doesn’t.
Neil Gorsuch is not that nominee. His track record on money in politics comes down decisively on the side of billionaire donors and big corporations. Unlike the large majority of Americans, Judge Gorsuch does not believe that protecting our democracy from the influence of big money in politics is necessary or desirable. In his concurring opinion in Riddle v. Hickenlooper, he suggested that making a political contribution is a “fundamental” right, and that action to regulate it should be subject to strict scrutiny review ― the highest level of protection afforded under the Constitution. Under current jurisprudence, even the right to vote doesn’t receive that level of protection. Gorsuch’s position is that the right of billionaires and big corporations to pour unlimited sums into elections deserves more protection than the individual’s right to vote.
If confirmed, Gorsuch would give the Supreme Court a five-to-four conservative majority for the foreseeable future. That would place the few remaining protections against big money in politics ― such as limits on individual contributions to candidates ― in serious jeopardy.
None of this should be all that surprising, given Gorsuch’s lengthy history of representing corporate interests prior to his nomination to the 10th Circuit Court of Appeals. As a litigator, he represented the U.S. Chamber of Commerce ― one of the largest corporate special interest lobbies in the country ― advocating for rules that would make it harder to hold companies accountable for securities fraud.
Ideological conservatives’ and establishment Republicans’ ecstasy over Gorsuch’s nomination must blind them to the fact that the voting public overwhelmingly opposes allowing billionaires to have a bigger say than the rest of us. More than three out of four voters agree that Congress should reject any Supreme Court nominee who will “help the wealthy and privileged continue to wield too much power in our elections.” That includes 70 percent of Republicans and 69 percent of independents, indicating that opposition to a nominee with Gorsuch’s views could transcend traditional partisan divides.
Republicans, of course, hold a 52–48 majority in the Senate. And they have already indicated their willingness to force Gorsuch’s confirmation by abolishing the filibuster, which would allow them to confirm his nomination with an unprecedented simple-majority vote. If Republican Senators were to take this drastic step ― and unanimously support Gorsuch’s confirmation, as appears likely ― Democratic Senators would ultimately be powerless to stop it.
However, Senate Democrats can use the confirmation process to hold Gorsuch, Trump and the GOP accountable for their extreme views on money in politics. Our data suggest that the vast majority of their constituents would agree with their opposition to the nomination, if the message focused on Gorsuch’s stand on money in politics. Many senators have already recognized the potency of this issue, signaling their intent to hold Gorsuch’s feet to the fire over his penchant for siding with big donors over working families. As Sen. Elizabeth Warren (D-MA) remarked, “We don’t need another justice who spends his time looking out for those with money and influence.”
As Democrats begin what is sure to be a months-long battle to defeat Judge Gorsuch’s nomination, their efforts could benefit from placing the issue of big money in politics front and center. That would send a powerful message to millions of Americans that Democrats hear their voices and will fight for their right to be heard in government ― and perhaps give pause to Senate Republicans falling in line behind Trump’s nominee.
Steve Pierce and Kate Pazoles are senior associates at Hattaway Communications.