Will A 'Justice Gorsuch' Let Us Fix Our Flawed Democracy?

Co-authored by Scott Greytak, Represent.Us Senior Counsel

Plenty of important news stories have failed to break through the media’s hyperfixation on the Trump presidency. The removal of South Korea’s president. The weakening of net neutrality . Seven Earth-size planets . But as our national attention turns to the most important Senate confirmation of the year—that of Judge Neil Gorsuch, President Donald Trump ’s nominee to the United States Supreme Court—one worthy news story that died in the shadow of Trump must be resurrected.

The United States is no longer a “full democracy,” according to the Economist Intelligence Unit’s Democracy Index, a yearly metric that captures the health of democracy in nearly 170 countries. It is, instead, a “flawed democracy,” a demotion that the Index’s designers attribute not to the rise of President Trump, but to a “continued erosion of trust in government and elected officials.” In essence, the public’s waning faith in government has evolved from a third-rate gripe into a true threat to American democracy.

Not coincidentally, this crisis of confidence comes at the end of a national election cycle where $7 billion was spent on American elections. An election cycle where half of the money pushed through super PACs—political groups that can raise and spend unlimited amounts of money—came from just 50 families . Where the flood of money in judicial races continued to reach new heights . Where foreign corporations —and foreign governments —worked hard to purchase our democratic process.

All these problems began—and could end—at the U.S. Supreme Court. So the question is clear: Will the judicial philosophy of a “Justice Gorsuch” allow—and even encourage—the American public to restore their government to a full democracy? Or will it further enshrine a defective legal doctrine that undermines the rule of law?

The strongest rationale for reining in the power that money has in our politics, for ending a pay-to-play culture where politicians give special access to their supporters, and for striking at the very core of the public’s ever-increasing distrust in our government has always been the prevention of corruption or the appearance of corruption. Whereas corruption itself has no easy metric, the appearance of corruption in the public eye—which has the particularly pernicious power to sap our faith in the rule of law —is undeniable today: Three in four Americans believe that money has a greater influence on politics and elected officials than ever before, and that widespread corruption exists in our government.

The importance of preventing the appearance or reality of corruption was made clear by the Supreme Court more than 40 years ago, on the heels of the Watergate scandals that shattered the public’s confidence in good government. The idea of corruption, the Court said then, was not just the “giving and taking of bribes” by politicians. Such obvious examples of corruption were “only the most blatant and specific attempts of those with money to influence governmental action.” Instead, as the Court saw it, corruption involved a much broader dynamic. It was “inherent in a system permitting unlimited financial contributions.” This logic could easily extend to the dynamics that define campaign finance today, including the surge of spending by supposedly “independent” super PACs.

But the high court that Judge Gorsuch may soon join has changed course on corruption. Through a series of recent decisions, including Citizens United v. FEC, the Court has essentially narrowed its definition of corruption to mean the quid pro quo (“this for that”) sale of official action. In its ugliest form, the exchange of money for votes. With some exceptions, then, anything beyond the quid pro quo pale walks a precarious path. Laws that can’t be neatly threaded through the Court’s definition of corruption—for example, laws aimed at limiting the outsized influence that wealthy donors have via super PACs—will continue to be short-circuited by the Court’s narrow constitutional guardrails.

Yet Americans still want change. Despite the high court’s hamstringing of meaningful reforms, voters continue to register their outrage directly by approving ballot measures that target perceived government corruption. From South Dakota to Maine , California to Missouri , voters have circumvented recalcitrant lawmakers by passing pro-democracy initiatives in cities and states across the country. In this way, a truly bipartisan effort to “drain the swamp” of political corruption is taking shape, and concerns over corruption are already becoming central to the 2018 midterm narrative. As a result, the Court’s ever-shrinking conception of corruption appears to be on a collision course with the will of the American people.

Judge Gorsuch now finds himself at the center of this debate. And if he’s confirmed, he’ll join a far more consequential conversation about our democracy as one of the nine most powerful people in the country. So will a “Justice Gorsuch” continue to cabin the Court’s understanding of corruption? Or will he empower the American people to restore their government to a full democracy that is truly of, by, and for the people?