The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.
“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.
“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”
Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.
In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.
“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public's sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.
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On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.
While Sotomayor’s support for limits on campaign fundraising thrills clean election advocates, it positions her squarely against several prominent Senate Republicans—including members of the Judiciary Committee—who vigorously oppose similar campaign finance rules and it is inflaming small-government conservatives who consider such regulations an affront to the First Amendment.
The extent to which Sotomayor’s policy preferences color her judicial philosophy on campaign finance regulation is not entirely clear. And since Sotomayor would replace Justice David Souter, who has reliably sided with supporters of stricter rules, few expect her to affect the court’s balance of power on the issue in the near term. But advocates for more stringent campaign finance rules hope that over the long run, Sotomayor, who is only 54 years old, could reverse a shift towards deregulating political money that took off when former President George W. Bush’s appointees – Chief Justice John Roberts and Justice Samuel Alito – formed a fairly reliable anti-campaign regulation majority with Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas.
“When you ut a relatively young person on the court with [Sotomayor’s] kinds of views, it may matter a great deal down the line,” said Rick Hasen, an election law professor at Loyola Law School who runs the influential Election Law Blog, which tends to favor stricter regulation. “Having three or four younger justices who take the view that regulation is constitutional could be quite significant.”
In an analysis of a dozen Sotomayor election law decisions (including on the Vermont law, as well as cases related to ballot access, voting rights and limits on political activity by government officials), Hasen found her “to be on the mainstream left, no different from the kind of opinions I would expect from Justices Breyer, Ginsburg, or Souter.”
Though Sotomayor’s role in the Vermont case was relatively minor (she sided with six other appeals court judges in rejecting Bopp’s client’s request to rehear the case after a three-judge panel upheld Vermont's low contribution limits and suggested that its campaign spending limits might also be legal), opponents of campaign cash restrictions consider it revealing.
The law “severely restrict[ed] the ability of candidates to communicate with voters,” said Brad Smith, a former FEC chairman who heads the anti-regulation Center for Competitive Politics.
Smith said Sotomayor’s role in the case “signaled that she does not view the rights guaranteed by the First Amendment as among the most important Americans possess."
But Bopp said her Suffolk Law Review article is more telling, showing that “she’s bought into the most extreme campaign finance reformer rhetoric. And considering that she has on occasions extolled the legitimacy of policy preferences guiding judicial decisionmaking, including her own, you’ve got to take her personal policy preferences seriously.”
In the article, which she co-wrote with the former longtime director of the New York City Campaign Finance Board, Sotomayor contended that privately-financed elections raise “again and again the question what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate. Can elected officials say with credibility that they are carrying out the mandate of a ‘democratic’ society, representing only the general public good, when private money plays such a large role in their campaigns? If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions.”
Six years after she wrote the article, the 2002 McCain-Feingold law overhauled federal campaign finance rules but stopped short of imposing the comprehensive regime she helped implement in New York, which capped private donations and matched small donations to all participating municipal candidates with taxpayer cash.
The unpaid five-member board, on which Sotomayor served while she was a lawyer in private practice from 1988 until she was taped for the federal bench in 1992, implemented the law, recommended changes to it, heard complaints and issued fines.
In the law review article, Sotomayor called it “a model for decision-making in the political sphere,” while the board staff and chairman with whom she served said she embraced the premise of the law and worked to make it stronger.
“In our first go-round with the law, we may not have reduced the role of money in politics, but we increased the amount of information that was available to the public,” said Rev. Joseph A. O’Hare, who chaired the board from 1988 until 2003.
O’Hare recommended Sotomayor’s appointment, according to Koch. And O&rsuo;Hare recalled Sotomayor as an active participant in enforcement inquiries and post-election reviews of the law.
“The need to have regulations, I don’t think was ever debated,” said Laurence D. Laufer, who served as a board staff lawyer during Sotomayor’s tenure. “It was a question of what the details would look like.”
The board was a major part of its members’ lives in the early years, said Laufer.
“These people made a huge commitment. This was multiple meetings every month—multiple meetings sometimes in a week,” he said, recalling Sotomayor believed “there should be high expectations for the regulated community.”
Nicole Gordon, the board’s former executive director—and Sotomayor’s co-author on the Suffolk article—said the judge deserves “a very nice share of credit” for implementing New York’s campaign finance law.
In her letter of resignation, Sotomayor called her time on the board “a deeply rewarding experience … The Campaign Finance Board is a testament to good and decent government and I am proud to have been one of its founding members.”
That’s music to the ears of some campaign finance reform advocates.
“The New York City Campaign Finance Board has served as a model for campaign regulatory bodies throughout the country,” said Paul Ryan, a lawyer for the pro-regulation Campaign Legal Center. “Judge Sotomayor clearly understands the threat of corruption and, indeed, the threat to democratic society itself, posed by large, private campaign contributions.”