The meaning of 'sex' and pragmatic judicial interpretation
Gorsuch is restoring lost faith in government
Judge Neil Gorsuch did a lot of explaining last week on what makes a good judge. One message that we heard repeatedly was how staying above politics is necessary to be fair and impartial. Not too long after the questions began, Democratic Sen. Sheldon Whitehouse of Rhode Island challenged Gorsuch's premise by bringing up my case (McCutcheon v. FEC) and other recent 5-4 decisions of the Supreme Court. Specifically, Whitehouse said, "The question that faces me is what happens when the Republicans get five appointees on the Supreme Court? I can't help but notice the array of 5-4 decisions ... helping Republicans at the polls."
Whitehouse fails to realize that as a direct result of the 5-4 McCutcheon decision Democrats have raised and spent more money that the Republicans. Even though I am a conservative, I am glad to see more money in the political process, even if it is going to candidates with who I rarely agree. The McCutcheon decision helps candidates advance their message and empower voters with key information on the positions and values held by those seeking to represent them. That was always the point.
To assert that my case is helping Republicans, or giving any party for that matter, an advantage at the polls, is flat wrong. Like the philosophy that Gorsuch advanced during the hearings last week, the First Amendment and Free Speech are above politics - and my case proves it.
Leading up to the Supreme Court decision, critics asserted that my case would lead to undue influence on officials. With more money in the system, critics argued, the floodgates to corruption would be opened. That didn't happen.
We worked hard, just like Gorsuch is now, to illustrate campaign finance matters are about empowering people and keeping those in power from abusing the system to gain unfair advantages.
Despite the incorrect assertions still made today, the arguments in McCutcheon were never about the limits on the amount of money you may contribute to an individual candidate. It is about your right to contribute that amount to as many candidates as you chose. Allowing individuals to donate to as many candidates as they wish would draw contributions away from PACs and bring money directly to candidates, giving underdog candidates a fair chance in the political arena. While base limits were not a part of my case, arguments over these restrictions are coming.
If confirmed to the Supreme Court, Judge Gorsuch will rule on another campaign finance case challenging base limits. I have often advocated that base limits make some sense, but current levels are too low. We will surely see many of the same arguments leveled at these cases that were used against mine. And if the past is precedent, those most vocal in the opposition will be those most likely to benefit.
Gorsuch has proven that he can be a tireless First Amendment advocate. During the Senate testimony, he repeatedly and convincingly affirmed his own independence and the ongoing need for judges to be independent from everything but the Constitution and law. I have not seen anyone lately with such an innate ability to explain the complexities and answer senators' questions in simple understandable language. It was if he had answered them all a thousand times before which indicates his extensive experience. Like Scalia he sees the law like a great opera or work of art with everyone playing their roles for one big masterpiece.
A message like that resonates well. Political leaders should take notice that the message is more important than money. And last week Gorsuch proved it too.
As the fights over the confirmation process loom, steering clear of the distractions and the politics part of the equation will be key. So long as he stays above politics, assertions of unfairness by those looking to portray Gorsuch unfairly will continue to fail.
The last election proved that candidates win when they demonstrate a real commitment to the ideas voters care about, not because they raise more money. While some will continue to argue that money is the root of all political evil, the First Amendment is clear, and Gorsuch is a great advocate for it.
Anyone who brings a campaign finance or First Amendment case will want a judge like Gorsuch because regardless if you're billionaire or facing foreclosure, he will listen attentively and apply the law. That's what a judge is supposed to do anyway.
People like Gorsuch restore some of my lost faith in government.
Shaun McCutcheon, an electrical engineer from Alabama, is the successful plaintiff in McCutcheon v. FEC and author of Outsider Inside the Supreme Court.
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