Justice Kennedy, Author of Citizens United, Shrugs Off Question About His Deeply Flawed Premise

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.