McConnell’s fight over replacing Scalia is part of his long-term Senate strategy

A liberal majority would undermine two of the most important pillars in McConnell’s plan for Republican control — deregulated campaign finance and weak unions. And an open Court seat is fundraising gold for targeting big business.

By Lee Drutman

It didn’t take long after Justice Antonin Scalia’s death for Senate Majority Leader Mitch McConnell (R-KY) to leave no doubt that any nomination to the Court from President Obama would be DOA.

While some (including Vox’s Ezra Klein) have made the case that the rapid response may turn out to be a political misstep for McConnell (and it may well be), I’m not so sure the Senate majority leader could have done otherwise, given both the stakes and the importance of a conservative Supreme Court to McConnell’s vision for a lasting Republican majority.

The way McConnell no doubt sees it, a liberal majority on the Court would undermine two of the most important pillars of his plan for long-term Republican political dominance — the deregulation of campaign finance and the steady erosion of labor union rights and protections. These are two areas in which the Roberts Court has handed Republicans significant structural advantages.

Additionally, McConnell, who is first and foremost a fundraiser for Republicans (as all party leaders have become) understands how important the Court has become to a major part of the Republican donor class: big business. At a time when Congress is not doing much of anything, the business community has enjoyed some significant victories at the Supreme Court in recent years. And the Chamber of Commerce has in turn focused more and more of its resources on litigation strategies.

McConnell therefore knows that an open seat on the Court makes an incredible campaign fundraising pitch to the deepest-pocketed donors he knows. Why would he give this up?

The Court’s current conservative campaign finance regime benefits Republicans

Mitch McConnell has repeatedly made campaign finance deregulation his top priority. He brought the legal challenge to the McCain-Feingold Bipartisan Campaign Reform Act (BCRA) immediately after it passed in 2002, lending his name to the case upholding BCRA, McConnell v. FEC. He has been an outspoken advocate for equating political spending with free speech and a stalwart opponent to any and all campaign finance reform.

He has also been an aggressive advocate for deregulating campaign finance law, succeeding in the 2014 Cromnibus by inserting a rider to significantly raise limits on direct giving to party committees. He also tried (but failed) to further deregulate campaign finance in the 2015 omnibus deal.

In his quest to let big money thrive in political campaigns, McConnell has been aided by a conservative Court. In particular, both the Citizens United and  McCutcheon decisions have made it much easier for the wealthiest donors to contribute ever greater sums to political campaigns.

McConnell’s passionate support of First Amendment protections for campaign spending is no doubt rooted in a political calculus: Republicans have more deep-pocketed supporters than Democrats; corporations and their executives are more likely to support Republicans than Democrats. Therefore, Republicans can best take advantage of a campaign finance system that allows maximal participation by these wealthy donors.

A 5-4 liberal majority could very well reverse some of the recent cases that McConnell believes have given Republicans this structural advantage. So he understands what’s at stake.

The Court’s current conservative labor law regime benefits Republicans

One of the biggest cases the Court is set to decide this term is Friedrichs v. California Teachers Association. At stake nominally is whether public workers could opt out of unions they didn’t support. But practically, as Kent Wong, director of the UCLA Labor Center, put it, “There is a huge sector of the U.S. labor movement that is now going to potentially experience a dramatic change if the court rules in favor of the plaintiff.”

In other words, a ruling in this case could deal a serious blow to public sector unions, which have already been severely weakened over the past several years as part of an organized Republican effort to weaken the resources and organizational capacity of this key Democratic Party constituency.

The consensus among court watchers was that the 5-4 conservative majority would land that serious blow and be the culmination of a years-long war on workers and unions. As the Center for American Progress’s Ian Millhiser summed up the Court’s anti-worker record:

No one, with the possible exception of disenfranchised voters in North Carolina, has fared worse before the Roberts Court than working men and women. Under Chief Justice John Roberts’ leadership, the Court largely wrote a key protection for victims of sexual or racial harassment out of the law. It made it easier for employers to retaliate against workers who file civil rights complaints. It gave employers an easy way to immunize themselves from class action lawsuits brought by their workers. And, of course, there was that whole unequal pay for equal work case involving Lilly Ledbetter.

McConnell is aggressively anti-union, even for a Republican. Almost certainly this is because he understands that by breaking apart unions, he weakens a key Democratic constituency. And with a conservative majority on the bench, he’s had a key ally in that fight.

Again, a liberal court could undermine that advantage, giving unions victories that might allow them to rebuild and become a larger force in politics again. Which would be very bad for Republicans.

An open seat is fundraising gold for Republicans’ biggest donors

Going beyond campaign finance and workers’ rights, perhaps the biggest story of the Roberts Court is that it has become the most pro-business Supreme Court in a long time. A 2013 study by Lee Epstein, William M. Landes, and Richard A. Posner ranked all justices serving on the Court between 1946 and 2011 by how favorable they were toward business. Samuel Alito was No. 1, John Roberts was 2, Clarence Thomas was 5, Anthony Kennedy was 6, and Scalia was 9. Among recently departed judges, Sandra Day O’Connor ranked 12 and William Rehnquist 14.  By contrast, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor were all in the bottom half of the list.

The Constitutional Accountability Center has tracked the win rate of the Chamber of Commerce at the Court. Under the Roberts Court (2006 to 2015), the Chamber of Commerce has won 70 percent of the cases in which it took a position. Compare that with 56 percent under the Rehnquist Court (1994 to 2005) or just 43 percent under Warren Burger’s Court (1981 to 1986).

In 2013, lawyer Adam Chandler analyzed amicus briefs asking for Supreme Court review. He found almost all of the top filers were pro-business, anti-regulatory groups. The Chamber of Commerce topped the list. As Chandler wrote, “The Chamber of Commerce’s continued dominance is immediately apparent. Not only did the Chamber once again file the most briefs, but it had the second-highest success rate of the Sweet Sixteen. In fact, it was one of only two members of that top group to improve its success rate from five years ago.”

The Chamber of Commerce has also been a major force in supporting Republicans running for office. In 2014, it reported $35.4 million in outside spending on races, all in support of Republicans (though, as a 501(c)6 organization it may have spent even more on unreported spending). The Chamber could spend even more this time, if McConnell can convince chamber members of the stakes — and having an open seat on the Court will sure help. Given how aggressively business has been advancing its agenda in the courts, the stakes couldn’t be higher.

Certainly there are other factors that went into McConnell’s decision, including fears that conservatives in his own party might revolt if he even entertained the possibility of voting on an Obama nominee. But given both the business-donor fundraising opportunities that a vacancy presents to McConnell and the potential of a liberal Supreme Court to undermine some of the structural advantages McConnell believes Republicans have gained on the campaign finance and labor union fronts, it’s no wonder that the Senate majority leader isn’t going to give an inch. It’s going to be an extremely ugly fight.

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