Justice Kennedy’s Selective Amnesia

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The Sjupremes

We all hate Citizens United, but sometimes we don’t remember why. So let me remind you.

To take a nostalgic example, let’s consider Jeb Bush’s campaign for the Republican nomination this past year. Under current law if you wanted to support Jeb, you could make a direct contribution to his campaign, but it would have to be limited to 2700 dollars. On the other hand, you could make a donation of any amount to his Super Pac Right to Rise. The advantage of the Super PAC is that there are no dollar limits on the contributions it receives or the expenditures it makes. They can be in the millions. The disadvantage is that the expenditures must be “independent”, not coordinated with a candidate.

Technically, Right to Rise was independent of the Bush campaign itself, but functionally it was an integral part of it. Guileless Jeb once inadvertently admitted as much. He proudly announced, “We just started to advertise…”– then he corrected himself–“our Right to Rise Super Pac started to advertise, not our campaign.” One of many possible examples of coordination was the fact that his “independent” Super Pac paid political operative Trent Wisecup 16,000 dollars for political strategy services. Wisecup was also the Bush campaign Director of Strategy. And Bush’s approach was the rule, not the exception. The “independent” expenditure exception has made a farce of campaign finance reform.
https://thinkprogress.org/line-blurs-further-between-jeb-bushs-campaign-and-super-pac-cd2c155b37a5#.hd1bof7xn

Lee Fang of The Intercept had the clever idea of asking Justice Anthony Kennedy, the author of the majority opinion in Citizens United, what he now thought of the case’s impact. https://theintercept.com/2016/09/20/justice-kennedy-citizens-united/ Fang reminded Kennedy that in his opinion he had cavalierly rejected the argument that so-called “independent” contributions by large donors would actually be coordinated with political candidates to have a corrupting effect on the election system. Kennedy’s argument had been simplicity itself:–“By definition an independent expenditure is political speech directed at the electorate and not coordinated with the candidate.” Fang pointed out that history seemed to have proved Kennedy wrong; all candidates now were coordinating their campaigns with allied Super Pacs. Kennedy’s reply was “No comment.”

Kennedy’s error was one of fact, not logic. He didn’t foresee the negative impact his decision would have on the democratic process. While maybe we should have judges who are more aware of how life operates in the “mean streets” of political life, we can’t expect a judge to be a factual expert in all the areas that cases present. After all, Kennedy is a judge, not a lobbyist.

But the fact is that, before he was a judge, Kennedy was a lobbyist, presumably aware of how easy it would be for a technically “independent” expenditure to be covertly coordinated with a candidate’s campaign in violation of the law. http://www.biography.com/people/anthony-kennedy-9362868#early-life

Citizens United was a 5-4 decision.

8 Comments

  1. constitutionalism says

    Citizens United was correctly decided. Just not correctly opined. The $2700 Individual limit is also unconstitutional, as are any limits on donations or spending. Doesn’t matter whether “independent” or not. Only donations for the personal use of the candidate can be restricted, and there is no actual delegated power to regulate bribery, either. Perhaps there should be, but there isn’t. The drafters of the Constitution assumed there was authority to punish common law crimes, but there isn’t.

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  2. I find it implausible that Justice Kennedy’s imagination is short on the practical implications of Citizens United. More likely that he was kicking the issue back to Congress with the thought that a different campaign reform should be adopted – one that might even be more rigorous.

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  3. Lou Fisher says

    John:

    There are so many deficiencies in Kennedy’s ruling in Citizens United. Previously, in Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000), he said there were sufficient grounds “to reject Buckley’s wooden formula” (at 407). He warned that the “melancholy history of campaign finance in Buckley’s wake shows what can happen when we intervene in the dynamics of speech and expression by inventing an artificial scheme of our own” (id.). Stating that “Buckley has not worked” (408), he added: “I would overrule Buckley and then free Congress or state legislatures to attempt some new reform, if, based upon their own considered view of the First Amendment, it is possible to do so” (409-10). Yet in deciding Citizens United ten years later, Kennedy relied extensively on Buckley (Citizens United, 558 U.S. 310, 339, 340, 345-46, 349-50, 356-60, 363, 365, 365-67, 369).

    In writing for the Citizens United, Kennedy made this claim: “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” (558 U.S. at 357). Based on actual data, experience, and findings, Congress and a number of states have determined that corporate spending in political campaigns not only provides the appearance of corruption but results in actual corruption. The Court provided zero evidence to counter elected branch judgments.

    Another Kennedy statements lacks corroborating evidence: “The appearance of [corporate] influence or access, furthermore, will not cause the electorate to lose faith in our democracy” (360). Courts need to anchor their decisions on reliable evidence and convincing reasoning. Mere assertions are hollow, especially when Congress and state legislatures have reached different conclusions.

    Lou

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  4. Dede Donovan says

    Good historical research, John. I had no idea that Kennedy used to be a lobbyist. That makes his vote in Citizens United even more inexcusable.

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  5. John Brigham says

    Good article. Too bad about the headline. It didn’t seem appropriate. And as someone just a little older than our Presidential candidates I hope we can be serious about discussion of age in the context of judging. Or leading the country.

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    • I have to agree with you on the title, but for different reasons than you suggest. The original title was “Justice Kennedy’s Selective Amnesia”– that’s more the point I was trying to make. In fact, I am going to change it right now. That’s the best part of the internet.
      am

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