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The Gorsuch Electorate

Claire McCaskill and Neil Gorsuch
Neil Gorsuch meets with Sen. Claire McCaskill, D-Mo. Photo courtesy Senator Claire McCaskill on Flickr.

The electorate that will almost certainly vote to install Neil Gorsuch on the U.S. Supreme Court next month consists of exactly 101 individuals: two senators from each state plus – in the event of a tie – Vice President Mike Pence.

So this week’s Senate Judiciary Committee hearings on Gorsuch’s nomination would strike reasonable observers as an odd place to bring up resentments about the court’s Citizens United decision and the alleged role of so-called “dark money” in U.S. politics. The only political campaign related to Gorsuch’s nomination ended more than four months ago with the election of President Donald Trump.

But that did not stop Rhode Island’s Sen. Sheldon Whitehouse from haranguing Gorsuch about the $10 million advertising campaign that the conservative Judicial Crisis Network is currently waging in favor of the nominee’s confirmation. Nor did it stop the peanut gallery in the left-leaning segment of the media from asserting that Whitehouse scored some sort of debating points when Gorsuch refused to endorse Democratic demands that the conservative group identify its donors, telling Whitehouse that if he wants more disclosure, “pass a law.”

In one sense, that reply by Gorsuch could be viewed as disingenuous or even smart-alecky. With his party deeply in the minority, Whitehouse’s chances of passing such a law are remote. But even if Congress did enact such a disclosure requirement and a president (almost certainly not Trump) signed it into law, the legislation would most likely be struck down as an unconstitutional infringement on free speech under the Supreme Court’s precedent. That precedent is, of course, Citizens United.

I don’t know if Gorsuch intended his response to be flip. It would be out of step with his generally respectful and affable demeanor in the face of political theater that has sometimes veered into farce. And I am not sure Whitehouse grasped the irony in his target’s answer, although I am fairly certain many of the senator’s acolytes missed it.

It was Whitehouse’s question itself – not Gorsuch’s reply – that illuminated what Citizens United was about and why it was correctly decided in 2010.

Judicial Crisis Network is not corrupting the confirmation process by distributing its $10 million among the 100 senators who will vote on the Gorsuch nomination. Or by distributing it among some or all of the 60 senators whose vote will be needed to break a filibuster (unless Senate Republicans change the filibuster rule). Or by distributing it among the 51 senators whose votes are needed for confirmation. Any such payoff would, of course, be a crime. Besides, it would be utterly unnecessary. One way or another, Gorsuch will be confirmed.

Instead, the conservative group is spending most of its money on advertising to the constituents of certain senators, especially Democrats from states that voted in favor of Trump. The obvious goal is to convince those constituents to try to prod their senators into supporting Gorsuch, or at least breaking a filibuster to let the nomination come to a final vote. Some of those Democrats probably will go along. Others won’t – and for the latter group, this choice will likely become an issue in their next campaign.

In other words, Judicial Crisis Network is exercising its constitutional right of free speech to communicate with citizens about a matter pending before their legislators, in hopes that those citizens will, in turn, exercise their rights as constituents and voters. If that sounds like democracy in action, it is because that is exactly what it is.

The individuals – even noncitizens if there are any – who support Judicial Crisis Network have a constitutional right to organize a corporate body and to speak to other citizens through that body. The right of free speech includes both anonymous speech and corporate speech. These principles have been embedded in constitutional law and court decisions stretching back to colonial times.

But Democrats today find, or pretend to find, something undemocratic about such speech – except when it suits their cause. There was no Democratic complaining about “dark money” when Hillary Clinton and her supporters were vastly outspending her opponents. The fact that Sen. Bernie Sanders came within shouting distance of wresting the nomination from Clinton, and that Trump then defeated her in the election – both while being heavily outspent and out-advertised by the Clinton camp – apparently taught Democrats nothing about how the democratic process works. You can’t teach anything to someone who refuses to learn.

Whitehouse and his fellow Democrats are not going through this exercise because they think it will change the outcome of the Gorsuch nomination. That outcome is a foregone conclusion. Given the hollowness and contradictions in their argument, they are not trying to bring new believers to their cause, either. This is only about proving their bona fides to the partisans who will back future Democratic campaigns – campaigns in which dark money will be welcomed, as long as it backs their side.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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