Welcome to the Trump Bench, a new series where Slate analyzes a Trump judge’s latest work. At an unusually rapid clip, Trump has so far successfully appointed two Supreme Court justices, 43 appeals court judges, and 110 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. The judges will likely be Trump’s most enduring impact on our nation, which is why we are choosing to spotlight their work.
The second installment is about David Stras, who joined the federal appellate bench in 2018.
The Judge: David Stras of the 8th U.S. Circuit Court of Appeals. Stras was confirmed to a lifetime appointment on the 8th Circuit on Jan. 30, 2018. He previously clerked for Justice Clarence Thomas and served on the Minnesota Supreme Court. Like most of Trump’s appeals court nominees, Stras is a member of the Federalist Society.
The Decision: On Friday, Stras authored a 6–5 majority opinion in Calzone v. Summers ruling that Missouri cannot compel a lobbyist to register with the government if he does not spend or receive money while lobbying.
Ronald Calzone, the plaintiff in the case, runs Missouri First, a far-right lobbying firm. Calzone regularly meets with state legislators and testifies before the General Assembly. He urges lawmakers to cut taxes, safeguard Missouri’s “sovereignty,” reject the separation of church and state, and recognize America’s “Christian and Constitutional heritage.” Calzone recruits like-minded citizens to lobby for “individual liberty, free market capitalism, [and] constitutionally limited government.” Missouri First also campaigns for “legislative and ballot issues.”
Missouri law requires lobbying firms to register with the state, which carries a $10 filing fee. These firms must also identify their lobbyists, file monthly declarations of all expenditures, and disclose which proposed legislation they supported or opposed. This information is made public. The purpose of the law is to maintain transparency and avoid corruption. Missouri seeks to ensure that the public knows who is pressuring lawmakers to champion or challenge certain legislation. If voters believe lawmakers are unduly influenced by special interest groups, they can vote them out of office. There are countless state and federal laws that impose similar mandates on lobbyists.
Calzone argued that Missouri’s rules violate his First Amendment right to free speech. Stras agreed in a sweeping majority opinion that cast doubt on the constitutionality of disclosure laws more broadly. He dismissed the notion that “the public has a right to know who is speaking so that it can hold legislators accountable for their votes and other actions.” This interest, Stras wrote, is not “sufficiently important” to “justify the burdens placed on Calzone’s speech.” Calzone’s supposed First Amendment right to lobby anonymously outweighs the state’s desire to make lobbying transparent. He may therefore ignore Missouri’s disclosure laws.
Stras’ decision grants lobbyists a free speech right to influence lawmakers in secret so long as they don’t spend or receive money in the process. That holding, on its own, is troubling enough: Lobbyists can still gain purchase in the State Capitol without pouring money into lawmakers’ campaigns. Yet Stras dismissed out of hand the possibility that Missourians have a strong interest in learning about Calzone’s advocacy on behalf of states’ rights, tax cuts, and Christian governance.
The Precedent: The foremost problem with Stras’ opinion is its overt skepticism of any disclosure requirements. He created a robust right to anonymous lobbying—even though the Supreme Court ruled long ago that the government can force lobbyists to disclose their names and activities. SCOTUS has also held that states can disclose the names of individuals who help to shape the law, even when no money changes hands, to promote “transparency and accountability in the electoral process.” Stras is wrong to assert that states have a negligible interest in publishing the identities and activities of lobbyists who work for free. He also carves a loophole in Missouri law that may prove easy to exploit. Individuals who work for well-funded advocacy groups may “volunteer” to lobby on their own behalf without personally donating to lawmakers. These individuals may be independent in theory. But legislators will know for whom they speak.
Stras’ overreach led to a sharply divided court. His opinion was joined by three other Donald Trump appointees and two George W. Bush appointees. Meanwhile, four Bush appointees dissented, along with one Barack Obama appointee. This divide illustrates the impact of Trump’s judges on the court. The 8th Circuit was already dominated by Republican appointees—but Trump pushed it to a new extreme. His appointees are forging ahead with the conservative legal revolution, attempting to enshrine Clarence Thomas’ antipathy to disclosure requirements into law.
The Record: Stras authored the majority opinion in Telescope Media v. Lucero, holding that a videography company has a free speech right to turn away same-sex couples seeking wedding videos. He declared that the First Amendment allows certain for-profit businesses to ignore civil rights laws and refuse to serve customers because of their identity. Stras also joined a 2–1 decision allowing the federal government to prosecute a woman for involuntary manslaughter because her substance abuse during pregnancy led to the death of her infant. The case marked the first time in history that this federal law has been used to charge a drug-addicted woman for the death of her newborn. As a lower court judge explained, the ruling could allow the government to prosecute pregnant women for drinking alcohol, negligently driving a car, or using chemotherapy.
The Vote: Stras’ nomination received relatively little scrutiny, in part because he faced the Senate Judiciary Committee alongside Kyle Duncan, a far more controversial figure. Most debate revolved around the fact that then-Sen. Al Franken, who represented Stras’ state of Minnesota, declined to return his blue slip for the nominee. By tradition, Franken’s action should’ve halted the nomination, but Republicans pressed forward, and Stras became the first Trump nominee to be confirmed despite a missing blue slip.
The Senate confirmed Stras by a vote of 56–42. Every Republican present voted in his favor. Seven Democrats supported his nomination: Joe Donnelly, Heidi Heitkamp, Doug Jones, Amy Klobuchar, Joe Manchin, Claire McCaskill, and Mark Warner. Donnelly, Heitkamp, and McCaskill later lost their seats.