Donald Trump has nominated exactly two people to the federal bench: Neil Gorsuch, who now occupies the seat that Senate Republicans held open for a year until Trump could fill it, and Judge Amul Thapar, a trial judge Trump hopes to promote to the United States Court of Appeals for the Sixth Circuit.
And if Thapar gets a promotion, he’ll bring his problematic views about campaign finance laws with him.
In his current job, Thapar authored an opinion suggesting that he would eviscerate what remains of the law limiting the influence of money on politics. Indeed, Thapar’s decision in Winter v. Wolnitzek reached so far beyond existing precedent that much of it was reversed by a panel that included two conservative George W. Bush-appointees.
Winter was a fairly complicated case involving Kentucky judges and judicial candidates accused of violating various ethical rules when they ran for elected judgeships — one woman went so far as to promise to fight for stiffer sentences for certain offenders if she won her race.
Some of the ethical rules at issue in this case were clearly constitutional and even Thapar agreed that they should be upheld. Others had fairly serious constitutional defects and were eventually struck down by the Sixth Circuit.
But Thapar also struck down a rule that does not permit a judicial candidate to “pay an assessment or make a contribution to a political organization or candidate” other than themselves. And in striking it down, he offered a very aggressive reading on the Supreme Court’s campaign finance precedents which, if taken seriously by higher courts, would threaten nearly any meaningful campaign finance law.
“Forbidding a candidate to speak ‘in favor of’ a political organization,” Thapar wrote, is not permitted by the First Amendment. “And under the Supreme Court’s precedents, direct speech and monetary speech are functional equivalents,” he continued, this time citing the Court’s Citizens United decision.
Thus, there is simply no difference between “saying” that one supports an organization by using words and “saying” that one supports an organization by donating money. Put more plainly, if a candidate can speak the words “I support the Democratic Party,” then he must likewise be allowed to put his money where his mouth is.
This analysis isn’t just wrong — it is obviously wrong under well-established Supreme Court precedent.
Although the Roberts Court has not been kind to campaign finance law, it has left in place certain contribution limits. In the 2016 election cycle, for example, no one could donate more than $2,700 per election cycle to an individual candidate for federal office.
Thapar’s logic is that speech is identical to spending for purposes of the First Amendment. But if that were true, individual contribution limits would be unconstitutional.
The First Amendment does not permit the government to impose a limit on the amount of actual speech someone can engage in on behalf of a candidate — Congress could not, for example, limit anyone speaking on behalf of a candidate to just 15 minutes. But the First Amendment does permit limits on the amount of money someone can give a candidate.
In other words, while the Supreme Court has certainly blurred the lines between money and speech, it hasn’t erased them entirely.
Thapar’s attempt to erase this line, moreover, was rejected by a fairly conservative panel on appeal. The limit on judges making political contributions, Judge Jeffrey Sutton wrote for the Sixth Circuit, “narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics. It is constitutional.”