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.
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.