Kavanaugh Empowers Pro-Choice Democratic Women

Supreme Court nominee Brett Kavanaugh empowered numerous pro-choice Democratic women political candidates, helping them raise hundreds of millions of dollars in campaign contributions.  Now, he is being denounced by those same women as unfit to be a public servant.

In 2005, Emily’s List, an advocacy group that claims to have raised over $500 million exclusively to support female Democratic politicians who favor abortion rights, sued the Federal Election Commission challenging new regulations limiting how non-profit groups raise money and spend it to advance the causes and candidates they believe in.  The regulations at issue in Emily’s List v. Federal Election Commission had the effect of “substantially restricting the ability of non-profits to spend money for election-related activities such as advertisements, get-out-the-vote efforts and voter registration drives.”  Emily’s List argued that these regulations violated the First Amendment of the Constitution.

The case reached the United States Court of Appeals for the District of Columbia in 2009.  In a sweeping opinion whose significance is often obscured by the fame accorded other campaign finance cases like Citizens United (decided by the Supreme Court the following year), Judge Kavanaugh wrote for the court that non-profit groups, like individuals, have the right to spend unlimited amounts of money promoting issues or candidates of their choice.

In his opinion, Judge Kavanaugh summarized some of the ironclad principles of the First Amendment as it has been applied to political spending.  One such principle is that campaign expenditures constitute protected speech as defined by the First Amendment.  Another is that the government is not permitted to restrict the spending of some individuals in the interest of greater “equality.”  Judge Kavanaugh deemed this statement from the Supreme Court’s seminal 1970s ruling in the case of Buckley v. Valeo, to be “perhaps the most important sentence in the Court’s entire campaign finance jurisprudence:”

                “[T]he concept that government may restrict the speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”