Kavanaugh Fails on Corruption

Sep. 4, 2018

By Scott Greytak Senior Counsel, RepresentUs

The Founding Fathers strongly believed that corruption was one of the greatest threats to American government.¹ Supreme Court nominee Brett Kavanaugh’s record on protecting America from corruption is deeply concerning.

John Adams warned that “[c]orruption in elections is the greatest enemy of freedom.” This concern is still felt by a majority of Americans today: When Justice Anthony Kennedy retired from the Supreme Court in June, over 64% of Americans wanted President Trump to pick a Supreme Court nominee who would limit the amount of money that corporations and unions can spend on political campaigns, and 63% said it was "very important" that he pick someone who is open to limiting the influence of big money in politics, according to a July report issued by the Campaign Legal Center and Demos.²

Kavanaugh's Alarming History

Judge Kavanaugh's record and rhetoric show that he is diametrically opposed to the overwhelming public mandate on protecting our elections. Time and time again he's been on the wrong side of the issue:

Money in Politics: Judge Kavanaugh has stated that money is “absolutely” speech^3, and believes that campaign finance laws can only be justified to combat outright bribery (or quid pro quo corruption).⁴ The Framers of the Constitution would disagree: Of the 325 uses of the word “corruption” in documents related to the Constitutional Convention, only five referred explicitly to quid pro quo bribery.⁵ This weekend, documents revealed that Kavanaugh has a “constitutional problem” with campaign finance regulation and would likely remove contribution limits—exactly the opposite of what the public wants.⁶

Foreign Money: In 2012, Judge Kavanaugh authored an opinion stating that foreigners could spend unlimited amounts of money on American elections, just as long as they don't explicitly call for a vote for or against a candidate.⁷ Like many of the social media ads bought by Russian trolls in 2016, these ads could include statements like "Hillary is a criminal" or "Trump is a liar" and be funded entirely by foreign powers.

Super PACs: In one of the most important campaign finance decisions of the last decade, Judge Kavanaugh voted to allow wealthy donors to give unlimited amounts of money to PACs that were "independent" from candidates.⁸ This decision was responsible for creating super PACs, which can now raise and spend as much money as they want from corporations, unions, and special interests in order to influence candidates and elected officials.

Transparency: In 2016, Judge Kavanaugh "went to great lengths to keep a case alive"⁹ that challenged disclosure laws in the Bipartisan Campaign Reform Act (laws that had been upheld twice by the Supreme Court), suggesting that he would vote to overturn basic transparency laws that help hold politicians accountable.¹⁰

Corruption Wears No Party Label

Though 87% of Americans, conservatives and progressives alike, support broad anti-corruption reforms¹¹, Judge Kavanaugh’s record indicates that he would reject key provisions including:

• Stopping donors from hiding behind secret money groups;
• Making it illegal for politicians to take money from lobbyists;
• Requiring political money to be disclosed immediately online.

All across the country, overwhelming majorities of voters—conservative and progressive alike—are calling for bold anti-corruption reforms. Brett Kavanaugh’s record indicates that he is yet another establishment insider who is profoundly out of touch with how the dismantling of basic public interest protections are enabling the auctioning of our democracy, and fostering—rather than tempering—political polarization and extremism. Now, we have a chance to influence the most important Supreme Court nomination process in a generation, and to engage the public on this crucial conversation.

A Defining Choice for the Senate—and all Americans

There's only a short window to show key Senators how destructive the nominee's views are on this all-important issue. 

Add your name: tell the Senate to put Kavanaugh on the record about corruption.

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Sources

^{1 John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-1788.} 

^{2 See Campaign Legal Center & Demos, Kavanaugh Has An Unsettling Record on Democracy, July 13, 2018.} 

^{3 See American Enterprise Institute, "Judge Brett Kavanaugh—The Court: Power, policy, and self-government," YouTube 47:26-48:03 (Mar. 31, 2016).}

^{4 See Republican Nat’l Committee v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010).}

^{5 See Brief of Amicus Curiae of Professor Lawrence Lessig in Support of Appellee at Appendix 1a, McCutcheon v. Fed. Election Comm’n, No. 12-536, 2013 WL 3874388 (2013).}

^{6 See The Hill, New documents: Kavanaugh has ‘constitutional problems’ with campaign finance regulation, (Sept. 1, 2018).}

^{7 See Bluman v. FEC, 800 F. Supp. 2d 281 (D.C. Cir. 2011).}

^{8 See SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc).}

^{9 Campaign Legal Center & Demos, Kavanaugh Has An Unsettling Record on Democracy, July 13, 2018.}

^{10 See Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016).}

^{11 MFOUR, National Voter Survey Findings, December 2, 2013.}