This week marked the anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures — modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt — so it is worth recalling the false promise made by the justice who wrote the majority opinion in that case.
Justice Anthony Kennedy masterminded the Supreme Court’s Jan. 21, 2010 decision to undo a century of public-interest regulation of campaign expenditures in the name of “free speech.” He had every reason to know how damaging to democratic values and public integrity that decision would prove to be.
Once billed as a “moderate conservative,” Kennedy is a libertarian former corporate attorney from Sacramento, who toiled in his father’s scandal-ridden lobbying law firm, “influencing” California legislators, before he ascended to the bench with the help of his friend Ronald Reagan.
While guiding Citizens United through the court on behalf of the Republican Party’s billionaire overseers, it was Kennedy who came up with a decorative fig leaf of justification:
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
As Jane Mayer’s superb new book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right reveals in excruciating but fascinating detail, Kennedy’s assertion about the Internet insuring disclosure and accountability was nothing but a little heap of happy horse-product. “Independent” expenditures from super-rich right-wing donors have overwhelmed the opponents of their chosen candidates, promoting a durable Republican takeover of Congress — often through the deployment of false advertising and false-flag organizations.
Late last year, Kennedy confessed that his vaunted “transparency” is “not working the way it should,” a feeble excuse since he had every reason to know from the beginning that his professed expectation of “prompt disclosure” of all political donations was absurdly unrealistic.
The Citizens United debacle led directly to the Republican takeover of the Senate as well as the House. Last week, the Brennan Center for Justice released a new study showing that “dark money” – that is, donations whose origin remains secret from news organizations and voters — has more than doubled in Senate races during the past six years, from $105 million to $226 million in 2014.
During the past three election cycles, outside groups spent about $1 billion total on Senate races, of which $485 million came from undisclosed sources. In the 11 most competitive Senate races in 2014, almost 60 percent of the spending by “independent” groups came from those murky places, and the winners of those races benefited from $171 million of such spending.
In elections gone by, when anonymous smear leaflets would appear in local races — funded by nobody knew whom — political operatives would shake their heads and mutter about “sewer money.”
Today we can thank Justice Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer. What a legacy.