How Do Potential Supreme Court Nominees Stack Up on “Citizens United”?

President Obama began interviewing potential Supreme Court candidates this week for the vacant seat created by the sudden death of Justice Antonin Scalia last month. The president has proceeded with the nomination process despite Republican senators’ vows to refuse to vote on any Obama nominee and instead wait for the next president to select the court’s new justice.

Within hours of the death of Justice Scalia, who led the Roberts court’s conservative wing for more than three decades, Senate Republicans pledged to refuse to hold a hearing on any nominee President Obama offers for the vacancy — despite their clear constitutional duty to do so, and despite the fact that the president has yet to select a candidate for the job.

Scalia’s vacancy gives President Obama a rare opportunity to shift the political balance of the court, and the president is currently considering a handful of relatively new federal judges with very limited judicial records as part of a strategy to overcome entrenched Republican recalcitrance in the Senate, according to The Washington Post. Even a moderate candidate could significantly shift the balance of the court toward a more liberal orientation.

As the president continues to interview potential candidates in order to fill the vacancy, many advocates and activists are scrutinizing the list’s limited jurisprudence for any clues into the judges’ positions on issues ranging from reproductive justice, to voting rights, to their views on increased gun control measures.

But how does the president’s list of potential nominees stack up in regard to campaign finance reform and the possibility of overturning the Citizens United v. Federal Election Commission decision of 2010? It’s a key test that both Democratic presidential candidates, Sen. Bernie Sanders (I-Vermont) and former Secretary of State Hillary Clinton, have said they would use to select a potential Supreme Court nominee during an election year in which the issue has become central to both Republicans’ and Democrats’ presidential campaigns.

The Money-in-Politics Litmus Test

The federal judges currently being interviewed and/or considered include Chief Judge Merrick Garland, Judge Sri Srinivasan and Judge Patricia Millett from the U.S. Court of Appeals for the District of Columbia; Judge Paul Watford from the Ninth Circuit Court of Appeals; Judge Jane Kelly from the Eighth Circuit Court of Appeals; and Judge Ketanji Brown Jackson, a district judge in Washington, D.C. Among the leading contenders are Judges Garland, Srinivasan and Watford.

Garland is unlike the rest of the president’s list of candidates in that he is a white male and also very experienced, with a 19-year judicial record as a moderate liberal. He served as a prosecutor prior to joining the D.C. appeals court in 1997, where he became chief judge of the court in 2013. One reason for President Obama’s consideration of him may come in part due to his respect among both Republicans and Democrats, as Sen. Orrin Hatch (R-Utah) helped secure his confirmation to the court.

According to Scott Greytak, who is counsel for the campaign finance reform advocacy group Free Speech for People, Garland’s record on campaign finance is somewhat mixed.

The judge sided unanimously with the nine-judge D.C. federal appeals court in the lesser-known but hugely impactful extension of the 2010 Citizens United case, SpeechNOW.org v. Federal Election Commission (FEC), which led to the creation of super PACs as we know them today. In the case, the court ruled that for independent organizations that use funds only for independent expenditures, campaign contribution limits are unconstitutional. The court simultaneously upheld disclosure requirements for such groups.

“The Senate’s consideration of the next Supreme Court nominee should not be a question of politics or electoral math.”

“It was a unanimous decision, so perhaps [Garland] felt bound by that jurisprudence, but he was a member of the court that greenlighted the creation of super PACs. So we’ve raised one flag on that,” Greytak told Truthout. “But outside of that, … his record with campaign finance is otherwise very solid.” Greytak cited other decisions by Garland, such as upholding a ban last year on contributions from government contractors to federal candidates, upholding a lobbying disclosure statute in 2009 and striking down a myriad of FEC regulations as not stringent.

Judge Srinivasan was nominated by President Obama to the same court in 2012 and is of Indian descent. Although he has not authored any opinion on campaign finance reform of his own, he did side with the majority of the D.C. federal appeals court decision last year in upholding the more than 75-year ban on campaign contributions from government contractors to federal candidates in Wagner v. FEC. The decision rejected claims by three federal contractors that their First Amendment and equal protection rights were being violated. The court held that the contributions ban is in the government’s interest to protect against the appearance of corruption.

Srinivasan has also favored increased disclosure rules, siding with a three-judge panel in 2014 that rejected the meat industry’s First Amendment challenge to the U.S. Department of Agriculture’s (USDA) country-of-origin labeling requirement, and writing the dissent last year in a two-to-one decision striking down a conflict minerals rule. The majority held that the First Amendment prohibited a Securities and Exchange Commission regulation requiring publicly traded companies to disclosure whether their products used minerals that funded warfare in the Democratic Republic of Congo.

But Greytak warns that Srinivasan’s private sector work — prior to his appointment to the appeals court — doesn’t bode well in terms of rejecting corporate speech claims. When Srinivasan was first nominated to the Court of Appeals, the environmental nonprofit EarthRights International sent a letter to the U.S. Senate Judiciary Committee urging senators to oppose his nomination and to interrogate his prior work defending ExxonMobil over allegations of murder and torture committed by its security forces in Indonesia.

“That [Srinivasan] was the target of some backlash from a nonprofit organization about his work in private practice … does give some folks pause about whether or not the issues he was committed to in private practice could be influencing his judicial philosophy as well,” Greytak said.

Judge Watford, who is Black, was confirmed to the Ninth Circuit Court in 2012 with bipartisan support and, like the other top two candidates under consideration, has previously upheld campaign finance rules. Last year, he sided with a three-judge panel that rejected a First Amendment and due process challenge to Hawaii’s campaign finance laws. Watford also held that contribution limits for individuals and a ban on “conduit contributions” (a form of indirect contributions to political campaigns) do not violate the First Amendment.

Judges Millet, Kelly and Brown Jackson have longer odds when it comes to filling Scalia’s Supreme Court vacancy, and they all have shorter judicial records with scant rulings in regards to campaign finance and corporate speech claims.

“Citizens United and other decisions have shown the court is wildly out of step with the public.”

Millet, like her other colleagues on the D.C. federal appeals court, upheld last year’s ban on campaign contributions to federal candidates by government contractors. Brown Jackson was the first to uphold the USDA’s country-of-origin labeling regulation for meat products against a First Amendment challenge, which was later upheld again by Srinivasan upon appeal. In 2014, Kelly joined a three-judge panel decision rejecting three businesses’ First Amendment challenge to an automobile insurance law’s disclosure requirements, finding the rules were “reasonably related to Minnesota’s interest in protecting consumers from misleading information.”

Greytak points out that it is hard to determine precisely where these potential nominees stand on campaign finance, since for the most part, they have not authored decisions on the issue themselves. However, he says, “In the few examples with these [potential candidates] where they have come across these issues, … when they touch on the bigger issues they have been on the right side of some of these larger decisions.”

But will any of these candidates even make it through the nomination process, given that Senate Republicans have not budged on their vow of obstruction?

Campaign Finance Reform Held Hostage

Senate Democrats confronted this Republican opposition on Wednesday, trading barbs over the Republicans’ impasse on the court’s vacancy as the Senate Judiciary Committee held its first meeting since Scalia’s death. “The Senate’s consideration of the next Supreme Court nominee should not be a question of politics or electoral math,” Sen. Patrick Leahy (D-Vermont), the panel’s ranking Democrat, said during the hearing. “It should be about the solemn oath we all took as senators to uphold the Constitution.”

Adam Lioz, who is counsel and senior adviser for the campaign finance reform advocacy group Demos, agrees, telling Truthout he is confident that the president will select a nominee with a strong record on campaign finance reform but is more worried about whether the president will be able to move forward any potential nominee at all.

“There is a reason that [Republican Majority Leader] Sen. [Mitch] McConnell and his allies have gone to such extreme measures to obstruct any nominee by the president, and that’s because they know that this 1 percent Supreme Court has been a defender of the powerful and the big money interests, and Senator McConnell is doing everything in his power to keep it that way,” Lioz said, citing the U.S. Constitution’s clear mandate that the Senate must consider the president’s nominees. “[McConnell] is using every procedural trick in the book to stop up what should be a regular, orderly process in which every president has been given the due consideration of his nominee.”

From Lioz’s perspective, the U.S. Constitution already establishes that the public can limit money in politics “for a variety of reasons.” He notes that for more than 40 years, the Supreme Court has only narrowly addressed the issue, passing campaign finance rules exclusively to protect against corruption or the appearance of corruption. Under Justice John Robert’s court, he says, the issue has been narrowed further so that rules must only address fighting bribery.

Lioz says that no matter what happens on the Supreme Court in the near term, future justices will interpret the U.S. Constitution in an expanded way. He predicts that the court will eventually recognize that the U.S. Constitution allows the public to limit campaign contributions to “protect the integrity of our democracy and to level the playing field between the wealthy and the rest of us,” even if the immediate next Supreme Court justice doesn’t quite see it that way.

“Citizens United and other decisions have shown the court is wildly out of step with the public on this and ultimately, in the long run, I’m confident that as the court turns over and as there’s new scholarship, that ultimately a new generation of justices will come to understand the power the Constitution gives to ‘We the People’ in this area,” Lioz said.

Neither Lioz nor Greytak see a test case on the horizon that could overturn the infamous Citizens United decision. However, both pointed to cases that could cut away at the decision’s foundations. For example, another federal court of appeals could interpret a decision like the SpeechNOW case differently as it relates to super PACs, opening a challenge the Supreme Court would need to resolve. Both advocates agree that a case that could overturn the Citizens United ruling needs to be planted now so that it might make its way up to a Supreme Court with a more liberal orientation.

But even if the advocates get their best-case scenario — in which the president is successful in moving his selected nominee forward through the nomination process, and the Supreme Court’s balance is ultimately shifted in a way that could overturn Citizens United — the larger doctrine of corporate personhood, which undergirds corporate speech claims, would be left intact.

That’s why Lioz and Greytak both support a 28th Amendment to the U.S. Constitution that would not only overturn the Citizens United ruling but also establish that corporations are not people under the law. “It’s not going to be recent history — maybe within our lifetimes — that tells us why just getting a new Supreme Court justice doesn’t solve the problem,” Greytak said. “The one way to end the perpetual pendulum [of revolving Supreme Court justices] … is by amending the Constitution.”