Undisclosed political money has been a key factor in the fight over Judge Neil Gorsuch’s Supreme Court confirmation, both as a tool for big-spending conservative groups, and as a flash point for Democratic opposition.
Close to two dozen of the Senate Democrats who have vowed to block Gorsuch have denounced both the more than $10 million spent—with no disclosure—to promote him, and Gorsuch’s own failure to endorse political transparency. On campaign-finance issues, Gorsuch appears to fall to the right of the late Antonin Scalia, who favored deregulation but who staunchly defended political disclosure. Gorsuch also has regarded contribution limits to candidates’ campaigns, one of the few remaining pillars of the campaign-finance regime, in a more critical light than the Supreme Court has.
“This issue has galvanized the Democratic caucus,” says David Donnelly, president of EveryVoice, which joined with 121 civil rights, labor, and other progressive groups in pressing Senate Judiciary Committee members to question Gorsuch on his “troubling” political money record. EveryVoice tallied more than 20 Senate Democrats who cited Gorsuch’s campaign-finance stance as central to their opposition.
Democratic Senator Claire McCaskill, of Missouri, said she “cannot and will not support a nominee that allows dark and dirty anonymous money to continue to flood unchecked into our elections.” Rhode Island Democrat Sheldon Whitehouse called Gorsuch’s failure to condemn undisclosed political spending “disqualifying,” and added, “That silence is particularly pungent while [he is] the beneficiary of a dark-money campaign for his confirmation.”
Indeed, even more disturbing to Senate Democrats than Gorsuch’s pro-corporate lower court rulings in such cases as Riddle v. Hickenlooper and Hobby Lobby Stores v. Sebelius, which dealt with campaign contribution limits and the health-care law’s contraception mandates, respectively, was the secretive campaign to promote him. It’s no secret that Gorsuch appeals to a host of mega-rich, right-wing supporters. A protégé of Colorado billionaire Philip F. Anschutz, Gorsuch was first placed on a Supreme Court short list by Leonard Leo, executive vice president of the Federalist Society, which receives funding from the billionaire industrialists Charles and David Koch. But who actually donated to the campaigns supporting his nomination remains a mystery.
Deep-pocketed conservative groups spent millions on ads promoting Gorsuch, including a $10 million campaign by the right-leaning Judicial Crisis Network, and a six-figure ad buy from Making America Great, a group backed by major GOP donor and Donald Trump backer Rebekah Mercer. Both groups identify themselves as tax-exempt 501(c)(4) social welfare organizations, meaning they fall outside the campaign-finance disclosure rules.
The pro-Gorsuch spending blitz comes at a time when GOP donors are pouring millions into a cluster of tax-exempt groups set up to promote the Trump administration’s agenda. With names like the Great America Alliance, America First Policies, and the 45Committee, the groups are bankrolled by such billionaire business titans as Home Depot co-founder Bernie Marcus and media mogul Stan Hubbard. It’s unclear how effective the pro-Trump groups will prove as they compete for donors and attention. But their common tax structure, which allows them to evade disclosure, raises concerns even for some conservatives.
“We’re going to have an oligarchy here if we don’t get serious about disclosure,” says John Pudner, executive director of the conservative group Take Back Our Republic, which promotes campaign-finance changes, including transparency. Pudner’s group wants to see Congress take up legislation that would codify into law an Internal Revenue Service regulation that in essence requires 501(c)(4) social welfare groups to spend no more than half their money on politics.
“If you are acting like a PAC, you can disclose like a PAC,” says Pudner.
Trump is not the first president to be backed by tax-exempt groups promoting his agenda. President Obama’s campaign operation morphed into the tax-exempt group Organizing for Action, a precedent that drew protest from ethics watchdogs—though that organization did voluntarily disclose its donors.
And left-leaning groups that hide their donors have also spent money to oppose Gorsuch. These include the Constitutional Responsibility Project, a group initially set up by former Obama aides to promote his Supreme Court nominee, Merrick Garland, who never got a hearing in the Senate. Notes Pudner: “Both sides are using the same tactics.”
But conservative groups, by one estimate, have outspent liberals in the Gorsuch fight by a margin of 20 to 1. Democratic senators pressed Gorsuch to call on the biggest-spending group backing him—the Judicial Crisis Network—to say who was underwriting its pro-Gorsuch ads. The senators then held a press conference to ask the group directly to identify its donors.
The group’s chief counsel, Carrie Severino, decried as “bullying and intimidation” the request by the senators, whom she likened to “third-world strongmen on a mission to stop dissent.” But the Judicial Crisis Network’s big spending—all of it in states where Democratic senators are up for re-election in 2018—did more to alienate fence-sitting senators than to win them over.
Independent Senator Angus King of Maine, who caucuses with the Democrats, held out until this week to announce his opposition to Gorsuch. His final decision, King stated, was “driven in part by the expenditure of more than $10 million on behalf of this nominee by people who are purposely concealing their identities,” which came on top of the $7 million spent opposing Garland last year. Gorsuch’s conservative backers “know what they are getting,” King noted, “and that, in itself, raises serious concerns, particularly given the judge's reluctance to discuss the Citizens United decision.”