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

Hours within the death of Justice Scalia, Senate Republicans vowed they would refuse to hold a hearing on any of the nominees presented by President Obama. Despite their refusals, the president has continued with the nominate process.

In an interview with Truthout, Scott Greytak, counsel at Free Speech for People, discusses how the potential nominees stack up on Citizens United and other campaign finance related items.  The full interview is available, here.

The federal judges currently being interviewed and/or considered include Chief Judge Merrick Garland, Judge Sri Srinivasan and Judge Patricia Millett from the US 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, DC. Among the leading contenders are Judges Garland, Srinivasan and Watford.

Greytak explains in the March 11th interview,

“[Judge] Garland’s record on campaign finance is somewhat mixed.

The judge sided unanimously with the nine-judge DC 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.

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

“It was a unanimous decision, so perhaps [Garland] felt bound by that jurisprudence, but he was a member of the court that green-lighted 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 DC 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 US Department of Agriculture’s (USDA) country-of-origin labeling requirement, and writing the dissent last year in a 2-1 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 US 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.

Where do Some of the Most Talked-About Potential U.S. Supreme Court Nominees Stand on Money in Politics and Corporate Personhood?

For a full analysis on each of the potential SCOTUS nominees and their stance on money in politics, read our latest memo.

 

 

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