Supreme Court Justice Anthony Kennedy, the author of the 2010 Citizens United decision that unraveled almost a century of campaign finance law, doesn’t seem to care that the central premise of his historic decision has quickly unraveled.
I spoke briefly to Kennedy during his visit to the U.S. Courthouse in Sacramento, before his security detail escorted me out of the room.
In the Citizens United decision, Kennedy claimed that lifting all campaign finance limits on independent groups — now known largely as Super PACs — would not have a corrupting effect upon candidates. “By definition,” Kennedy wrote confidently, “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
Such a legalistic view of campaign finance law has little relationship with reality. Outside, so-called “soft money” groups have always maintained close ties with candidates.
And, in fact, since the Citizens United decision, vast sums of money have poured into Super PACs that are no longer making even a pretense of independence, and the Federal Election Commission hasn’t lifted a finger to enforce the rule. Super PACs now openly coordinate with candidates with no fear of being prosecuted. Mitt Romney appeared at events for his campaign Super PAC in 2012. In this election, Hillary Clinton is openly coordinating strategy and messaging with her Super PAC Correct the Record, which allows her effectively to circumvent campaign finance limits placed and candidates and collect checks as large as $500,000.
I caught up with Kennedy during a reception at the Justice Anthony M. Kennedy Library and Learning Center in the Robert Matsui Courthouse hosted by the Federal Bar Association Sacramento Chapter last Friday. Kennedy, after listening to my question about the false crux of his decision, waved his hand and shrugged off the issue, calling it something for others, “the bar and the lower bench to figure out”:
FANG: You wrote the Citizens United decision. The crux of that decision was that independent expenditures are indeed independent and not coordinated with the candidates.
KENNEDY: Right.
FANG: But as we’ve seen in the last six years, that has not been the case. Millions of dollars have been coordinated between Super PACs and candidates —
KENNEDY: Well, I don’t comment. That’s for the bar and the lower bench to figure out.
FANG: Do you think the case should be revisited?
KENNEDY: I don’t comment on my cases.
Listen to the exchange here:
Despite his claim that he does not comment on cases, Kennedy often discusses his decisions. Last October, Kennedy appeared at Harvard Law School to reflect on the pivotal Obergefell v. Hodges case which extended the right to same-sex marriage nationwide. During that discussion, he commented briefly on Citizens United, reportedly declaring, “What happens with money in politics is not good.”
As soon I started talking with Kennedy, members of his security detail escorted me out of the room and asked for my credentials. After confirming that I was properly registered for the event, they asked if they could screen my questions before I could re-enter. I declined.
One should expect differently of dross like justice kennedy? His purpose on the court was to do exactly what he did, aiding the construction of the money train that benefits republicans so greatly. The money train works like this, the republican congress makes laws benefiting the wealthy, who in return return some of those benefits to the filth that make the laws, ensuring continuing increases in wealth to those who support republicans. Some of the excesses of this corruption are seen in the $800 billion in taxes sequestered offshore by those who have benefited, taxes stolen from the American people. This is why republicans are blocking President Obama’s court appointee, that that person might not agree with republican theft
Security detail? The guy really sounds in touch with life here on the ground
I’m not here to defend CU or anything, but I will point out what I see as a flaw in what you stated above. Kennedy was right to say that it is for the lower courts to deal with. Why? Because you are complaining that the PACs are violating the rule as is. Kennedy is not responsible for that. The executive branch is supposed to enforce the law and therefore maintain those separation rules. If the FEC did its job in taking PACs and candidates to court, you wouldn’t have the examples that you referenced in the article.
But neither democrats nor republicans really want to stop this activity, so you are just going to have a candidate every now and then that vaguely mentions how CU is bad just to get casual observer to fall in line. But then they jump to benefit from it because they can claim, “Well the other side is doing it too.”
In principle, I agree that independent citizens should be able to spend their money to get their message out to the public. That doesn’t mean that their can’t be any tighter laws around that to curb and/or punish corruption. But the Justice Department and the FEC need to do their jobs, or it won’t matter what laws we have on the books.
Where’s the “flaw” that you’re claiming Lee Fang stated? His disagreement was with Kennedy stating that he doesn’t comment. Lee Fang not only disagreed with that but he posted a link, (Kennedy often discusses his decisions), Which proved proved his disagreement and proved that Kennedy was either lying or prevaricating or talking around the question rather than answering it.
“And, in fact, since the Citizens United decision, vast sums of money have poured into Super PACs that are no longer making even a pretense of independence, and the Federal Election Commission hasn’t lifted a finger to enforce the rule.”
Good law improperly enforced does not become bad law.
Would you call for the repeal of the First Amendment because the government was becoming lax in prosecuting libel complaints?
Generally speaking, the government does not “prosecute libel complaints”. A libel complaint is a private civil action brought via private attorney on behalf of a libellant suing a theoretical libeler.
Just sayin’ not the best analogy.
“And, in fact, since the Citizens United decision, vast sums of money have poured into Super PACs that are no longer making even a pretense of independence, and the Federal Election Commission hasn’t lifted a finger to enforce the rule.”
Good law badly enforced does not become bad law.
If the government were lax in prosecuting libel, would you call for the repeal of the First Amendment?
We have some real pieces of shit on the Supreme Court.
“Campaign finance reform” always was bullshit and it always will be bullshit. Instead of looking for another make-believe reform to “make things difficult” and “not abandon the pretense”, we need independent free media. It would be nice if antitrust law were a real thing, but since it isn’t, people have to look on their own for it. Talk to each other, create value out of nothing.
God, what a fucking asshole Mr. Kennedy is. “shitizen’s united” is arguably the worst supreme court ruling ever handed down. It only passed because Bush and Reagan got a republican activist majority on the court. Can you believe it? Arguing that campaign donation limits limit freedom of speech for the donors? I mean, what the fuck kind if “up is down” bullshit argument is that? Only in the utterly fucked up beyond all repair USA government could such bullocks nonsense be made into law. Fucking awful. Hope Kennedy follows the lead of Scalia and drops dead ASAP :-)
For the most part, the U.S. judiciary is now filled with corrupt and/or cowardly people. Don’t expect anything good from them.
I’m not certain what’s more insulting…That he blew off the question, or that his security then tried to screen any further questions.
Why not just go all the way with plants in the audience who ask those all important questions like “How did you get to be such a wise and thoughtful justice”?
I have so much appreciation for the work you do in this line of questioning with its explanation that he does comment is just the journalism mini should be doing the Emperor or this case jurist he has no clothes thank you Lee keep up the good work.
Mr. Fang,
Other than Glenn Greenwald, and this is a close call, but I think you’re one of the finest journalists working in America today.
Thanks again for what you do.
http://www.salon.com/2010/01/22/citizens_united/
What’s a few extra bucks, eh?
Lawrence Lessig for President!
Pre-screening of journalist’s questions before they are allowed to interact with members of the judicial, excecutive and legislative branches of government???
Justice Kennedy’s entourage needs to recall the First Amendment:
I think pre-screening journalist’s questions violates the spirit for the First Amendment, and didn’t Kennedy lean heavily on the First Amendment to justify Citizen’s United? So it’s not only a distorted interpretation of “freedom of speech”, it’s also a highly selective one.
LOL. The First Amendment protects corporations – the REAL people – not puny biological humans like you and me. We’re just cannon fodder.
Dear Alex Emmons, Naomi Lachance, Robert Mackey and any of the other reporters here who I have taunted previously:
“before his security detail escorted me out of the room…”
That is being a journalist. Get out of your cubicle from time to time and start some shit. While you are at it, stick to reporting the facts and leave your opinions to your facebook page.
Let Lee show you how it’s done properly.
“Deeply flawed premise?” Seriously? Is that the author’s professional opinion based on his expertise in Con Law?
This article is makeweight and absurd. CU was decided correctly. The progressive narrative is not the Constitution.
Thank you for your input, Anthony.
“CU was decided correctly. ”
OK
And an innocent man may be put to death as long as the Is were dotted and the Ts crossed …. Scalia.
intellectual morons in positions of power, not a good thing.
You’re right, it’s a great thing. It means any one of us can reach that position and try to help out, even you.
I am really enjoying TI as one of my “real news” sources….This article demonstrates the entitlement of our elected officials .. they have security to protect them from tough questions…Its going to take a lot to dismantle and rid our government of corporate influences…I will say that if it was a criminal offense to lobby with money(donations) the problem would be fixed overnight…then it may be called what it really is…bribery…
Kennedy wasn’t elected?
If lobbying was illegal than how would you be able to communicate with your Senator?
A senator should be regularly meeting his constituents dont you think? He should have an office with regular hours where he awaits his constituents to come meet him. He should be available for town halls. Many ways to “lobby” them.
Don’t assume I too believe big money in politics is corrupting.
What I’m saying is that making all donations illegal is not likely to ever get passed.
Citizens United is a paper tiger when it comes to campaign finance reform. You would think, hearing people rant about this decision, that before CU money did not saturate politics. You would also gleam from this article that by overturning CU, politics would magically become less corrupt and money-driven.
This is not true. In the first place, the greatest blow to campaign finance reform was when Barak Obama refused matching funds in 2008. This allowed him to avoid any auditing or disclosure of his campaign. By the end of the primaries, Wall St had given him over a hundred million dollars. This was before Citizens United. Wall Street’s influence on politics is accomplished by bundling, ownership of media, and the revolving door. Their influence has nothing to do with CU. It never did.
Citizens United does not give billionaires any magical control over the electoral process. For instance, Jeb Bush used the Citizens United loopholes to funnel over 100 million into his PAC. It got him nowhere. There is no difference between raising 100 million from corporate blunders or through Citizens United PACs — it taints the politicians.
Actually the ruling elites do not like Citizens United. Before the ruling, only very well established billionaires and companies could influence elections. They accomplished this through a network of non-profits and of course bundling. Now with Citizens United, any wacky millionaire can pump money (indirectly) into a campaign. The monopoly that the fortune 500 enjoyed in buying politicians is threatened — that is why neo-liberals rant about the ruling while ignoring that billions are being raised the old fashioned way.
If we look at the narrow ruling of Citizens United, we an see that it was correct. Citizens United was an obscure group that created a film about Hillary Clinton. They were stopped by the government from releasing the film — a clear violation of the first amendment. This was in contrast to Michal Moore who was able to release Sicko at the same time, an anit-Bush film supported by the usual multinationals and billionaires of Hollywood.
I am against the broad ruling of CU, yet to forbid small groups from releasing films before an election while sanctioning liberal corporate Hollywood is actually favoring the ruling class. This restriction on films, would give a very rich corporate sector, Hollywood, a monopoly on media before an election. I can’t think of anything more undemocratic.
The outrage of Citizens United is not that the court allowed for a small independent film’s release, it’s that it used that narrow question to overturn a century’s worth of state and federal previously litigated campaign finance laws.
The “greatest blow to campaign finance reform” was a case called, Buckley v. Valeo from 1976. It dealt with campaign finance reform that the Democratic Congress passed in response to Tricky Dick’s actions. This precedes what Obama did by decades.
Scoop of the century. See what Ann Althouse says about it.
I, for one, really appreciate this article. Nice work. Actual journalism, for a change, which requires immense courage.
One really must have pity upon the individuals in high office. Their foolishness, despite such iron clad efforts to insulate them from the rest of us, is pitiful. They aren’t the source of their own power or direction: someone else obviously tells them what to do. They are only straw men, scarecrows dancing in a wind.
Please describe the process by which you believe citizens give up their right to criticize government officials when they pool their resources to do so. The SCOTUS answer was, “they don’t”. Yours, obviously, is that they do, but you don’t seem to offer any explanation for the mechanism by which the right to free speech is extinguished. I’d love to hear it.
“the mechanism by which the right to free speech is extinguished.”
The mechanism is called ‘volume’. If someone screams loudly, another’s speech may be swamped.
That is the beauty of CU in the eyes of billionaires. They don’t have to let anyone else be heard.
also, great choice of picture. it makes it look like he actually had a deep moment of reflecting on the morality of what he did.
You have to hand it to Kennedy and Roberts for acting in tandem to save Roberts from criticism, regarding his fulsome praise of stare decisis, during his Senate confirmation hearings! He would have looked like the political opportunist that he was, and still is, if he had authored this betrayal of that hallowed stare decsis. Roberts’ praise for stare decisis was a premature funeral oration. So well played in terms of CYA for the Roberts/Kennedy allience. This a favorite ploy of the Neo-Confederate/Orginalists, and other politicians, who attempt to launder their unsavory Political Romanticism: which, in sum, can be characterized in a radical political nostalgia for 1859. A nostalgia for unchallenged white male power is the root of so much of current politics, Trump being its most radical exemplar. The respectable racist Republicans can’t face the fact that their nihilism gave birth to this monster, as they retreat behind the facade of Reaganism. The Neshoba County Fair speech long and conveniently erased from political memory!
StephenKMackSD
way to go after him lee. i greatly respect you making the effort to question him in person. these people are so insulated, they never get asked those questions.
Taking credit for disaster?.? Citizens United was one of the worst decisions in HISTORY. I often wonder how much he/they were paid – in relationship to the costs to the people and the country
Excellent work. These Justices likely only speak at events where they’re venerated and never given challenging questions. Thanks for showing the world that Kennedy is too cowardly to face critique in a situation outside of that false comfort zone.
It is worth highlighting that the Citizens United ruling legalized foreign governments to control US elections through thinly veiled foreign contributions — which is a violation of, and an insult to, the US Constitution.
On a similar trip through Hell, Mr. Fang, I once had occasion to confront the devil himself about the size of his – underworld, but he just ignored me. And I too was quickly ushered away by my guide Benny, who suggested it unquestionably sexist to concern myself with Satan’s – accouterments.
Also, ask Clinton and Trump to screen this! Um – I mean, I’d like to hear their positions on the many states legalizing cannabis, and how the federal government plans to proceed with their insanely deceitful, wasteful and failed war on drugs.
With California and other states finally jumping on the recreational bus it’s a legitimate question for the debates, but I won’t hold my breath it’s not a screened issue with hand-picked media.
Well if you do hold your breath make sure you take a toke first :)
Lee, you are awesome – so glad you came to TI! Kennedy is a s***bucket.
If presidential candidates, who are presumably trying to convince people to vote for them, don’t answer reporters’ questions, why should a Supreme Court Justice with lifetime tenure? Many journalists implicitly assume that the public should be informed, without ever questioning that assumption.
These complaints that Justice Kennedy refuses to hold a press conference are, frankly, sexist in nature. If reporters simply allow their questions to be properly screened in advance by security for any terroristic tendencies, then all this fuss about press conferences would die away.
You’re lucky I don’t have Mr. Fang’s security detail escort you out of yere …
The ACLU (www.aclu.org) probably has the most well thought out constitutional “boundaries” for financing of campaigns.
Essentially, the ACLU thinks “dollars” should be backed up by “humans” in terms of lobbying power. For example: a million dollar donation from the AARP (with millions of individual donors) should have more representation in Congress than a million dollar donation from a single person. Of course more public financing in the equation better represents poor Americans without much money to lobby lawmakers.
Giving Kennedy the benefit of the doubt, although the ruling was faulty, maybe he was trying to achieve a similar goal as the ACLU? In other words even the ACLU, like Kennedy, has a First Amendment concern about banning all donations from “human-based donations”.
The Citizens United case is largely about whether “human-persons” should have more representation and greater rights than “corporate-persons”. The entire premise of “corporate personhood” is that it provides a “corporate shield” – there are two separate people – the human owner/shareholder and the corporation – someone can sue the corporation into bankruptcy but the personal assets of the human owner are protected. The net result is that currently “corporate-persons” have a Free Speech megaphone and the voice of “human-persons” can’t be heard in Congress and state legislatures.
Sad!
If I remember correctly, Glenn originally opined that Citizens was rightly decided in law. Wonder if that’s changed.
I was trying to remember the same thing. It’s been a while, but I think Glenn said the decision technically did not say money is speech, or corporations are people, but that speech is speech, and thus should not be regulated by the government. That makes the decision sound, or at least defensible.
I think the results of the decision are clearly awful and must be addressed. It seems like the solution should be something other than overturning the decision. Perhaps public financing of elections, or reinstating the Fairness Doctrine by somehow requiring private businesses who use public airwaves to provide equal time to different viewpoints. Although that sounds like it could be problematic for government to oversee content as well.
You’re on the right track. The Court held that regulation that prevented citizens from the opportunity to hear the regulated ‘speech’ is unconstitutional.
What the Supreme Court Got Right — Glenn Greenwald (Salon)
Oh hey, that’s what I was thinking of. Thanks!
Infuriating that a Supreme Court justice would tell an outright lie. Or forcibly limit access to questions in a public, government building.
Why is the “Security personnel” interested in screening questions?
Thank you for this. He doesn’t talk about his cases, my ass. He knows what he did. Thank you for being a real journalist and for asking the hard questions.
So money equals free speech but you get thrown out for asking a question? Maybe next time you should submit your questions written on $100 bills.
You know you’ve asked an important question when your followup is ‘Am I being detained?’
Damn, all the punks gettin’ Fang’d up in ’16. Keep it up Lee!
Well, that’s interesting. They would be qualified to do that (even if it were remotely appropriate) because. . . his security detail is comprised of law clerks from the Ivies with Uzis under their jackets?