Supreme Court Justice Anthony Kennedy announced Wednesday that he will retire effective July 31.
While appointed by Ronald Reagan, and quite conservative, Kennedy has occasionally been a wild card. For instance, he wrote the opinion for the 5-4 majority in Obergefell v. Hodges, in which the Court ruled that same-sex couples have a constitutional right to marry. He likewise authored the majority decision in Boumediene v. Bush, where the Court held that prisoners held at Guantánamo Bay had the right to habeas corpus review.
But Kennedy’s greatest legacy will likely be writing the notorious 2010 decision in Citizens United v. FEC, which declared that the First Amendment prohibits restrictions on so-called “independent expenditures” by corporations and unions. Kennedy’s ruling contains some of the silliest, wackiest, most preposterous pronouncements in the tens of millions of words extruded by the Supreme Court in its 229-year history:
[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption…
The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt…
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.
Kennedy might as well have written, “We now conclude that the sky is green, and everyone in America will agree that that’s definitely true.”
Kennedy’s bizarre assertion is based on a belief that money in politics only amounts to corruption if it involves notarized memos. “Kennedy argued that independent expenditures by definition could not have a corrupting effect on elected officials,” says Robert Weissman, president of Public Citizen. “By definition, because the political spender did not obtain a signed agreement for a favor in exchange for the political spending. There are perhaps five people in Washington, D.C. who think this reflects how political spending works. That would be Justice Kennedy and the four justices who joined him.”
All the available evidence, of course, is that essentially all Americans except Kennedy & co. despise our campaign finance system, Citizens United in particular – because they accurately believe it is, to use a term picked totally at random, a corrupt “swamp.”
An extensive 2015 poll by the New York Times found that zero percent of Americans believe no changes are needed in the U.S. campaign finance system. Thirteen percent think “minor changes” would suffice. Thirty-nine percent want “fundamental changes,” while 46 percent go further and say we should “completely rebuild” how it works. That’s a combined total of 85 percent in favor of major reform. This perspective is completely bipartisan: 81 percent of Republicans fall in the “fundamental changes”/”completely rebuild” camp, while 84 percent of Democrats do.
The Times survey also found that 84 percent of Americans think money has “too much” influence on political campaigns, and 55 percent believe that “most of the time” officeholders “directly help” their financial supporters.
So it should be no surprise that the poll showed that 78 percent of all adults – including 73 percent of Republicans and 85 percent of Democrats – feel that independent expenditures “should be limited by law.” In other words, big super-majorities all across the political landscape oppose the central effect of Kennedy’s Citizens United decision.
Similar results on related questions have been found in poll after poll since 2010. In 2015 majorities of Americans declared that most members of Congress are corrupt, out of touch and favor special interests. This past May, 75 percent of respondents said that they would like their member of Congress to vote for a constitutional amendment to overturn Citizens United.
Both Hillary Clinton and Donald Trump responded to America’s deep distain for Citizens United in 2016. Clinton’s platform stated that she would “overturn Citizens United.” Trump proclaimed that the Super PACs which Citizens United helped make possible were “a total phony deal,” and attacks on a “rigged” system were a central part of his campaign. (Even Jeb Bush – after blessing his own gigantic Super PAC – said he opposed Citizens United and it would be “ideal” to overturn it.)
There is only one defense that Kennedy could make for his bizarre Citizens United assertion: That Americans already thought the U.S. campaign system was totally corrupt before the case was decided. There is some truth to that, but the numbers have gone up noticeably since 2010. However, there is no trace in Kennedy’s ruling of a recognition that corruption was a significant concern of voters.
By contrast, there was recognition of the real world in the Citizens United dissent written by Justice John Paul Stevens. According to Stevens, Kennedy’s claim that “independent corporate expenditures ‘do not give rise to [quid pro quo] corruption or the appearance of corruption’” was “unfair as well as unreasonable. Congress and outside experts have generated significant evidence corroborating this rationale … If our colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District Court with instructions to commence evidentiary proceedings.”
But Kennedy was not interested in something as banal as “evidence” involving reality. He had an ideological commitment to opening the floodgates to as much money in politics as possible, and was willing to say absolutely anything to make it happen.