Citizens United: Supreme Court Justice Anthony M. Kennedy’s Gift to Moneyed Interests

To understand the reasoning behind Citizens United, the Supreme Court decision that has assured the corruption of American politics, it’s useful to go back half a century to California’s capital, Sacramento, birthplace of the author of that fateful ruling, Justice Anthony M. Kennedy.

His father, Anthony J. Kennedy, a lawyer, was one of the biggest lobbyists in a legislature that was pretty much under the control of lobbyists and the industries and businesses they represented. They gloried in the title of the “Third House,” and they usually had as much or more clout than the other two, the Senate and the Assembly.

The justice’s father worked with the Capitol’s most powerful lobbyist, Artie Samish, who represented liquor, the racetracks, the movie studios and other big California interests. I knew Anthony J. Kennedy slightly in the early ’60s. He was a big, friendly man who roamed the halls of the Capitol as if he owned them. I was too young and new to warrant his notice; and my Associated Press boss, Morrie Landsberg, didn’t like us hanging out with the lobbyists, legislators and veteran journalists who ate and drank at the nearby restaurants. But I watched Kennedy and could see he was important.

Samish went to prison for income tax evasion in the 1950s, before my time. I interviewed him in his San Francisco office after he had served his sentence. He was a smart, funny and unrepentant crook, and I was charmed.

While Samish was in prison, the elder Kennedy took over some of his business. When Kennedy died in 1963, his son, who was practicing law in San Francisco, came home and assumed his father’s place in the Third House.

Anthony M. Kennedy became friends with another young lobbyist, Ed Meese, who represented prosecuting attorneys. Meese joined Gov. Ronald’s Reagan new administration; and Kennedy, while retaining his law and lobbying practice, worked with Meese and Reagan. Reagan’s recommendation got Kennedy a seat on the appellate court. And later, as president, Reagan appointed him to the Supreme Court.

When I read from the Citizens United decision, I thought of how the author spent his formative years helping his father navigate the Capitol on behalf of liquor and other special interests, shaping state laws, giving campaign contributions, hosting lawmakers, being a member of the state capital insider’s club.

The day came, in 2010, when Justice Kennedy made the philosophy of Sacramento’s Third House the law of the land.

In Citizens United, he held that political spending is a form of protected speech under the First Amendment and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations and unions can’t give money directly to campaigns, they can try to persuade voters through other means. The “other means” turned out to be the super PACs, through which billionaires pour money into presidential campaigns. An appellate court, accepting this reasoning, ruled there was no limit on how much money such PACs could spend. So now we have political fundraising without rules or supervision.

Reflecting his Sacramento experience, Kennedy wrote in Citizens United that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

He said such corporate donations amounted to free speech, and “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” Furthermore, he said, “The appearance of influence or access will not cause the electorate to lose faith in our democracy.”

This decision has shaped American politics ever since. Sunday, on CBS’ “Face the Nation,” Bernie Sanders described the campaign financing system as “absolutely corrupt.”

He is absolutely correct. A handful of rich contributors who, no doubt, expect more than a handshake and a hug for their donations are contaminating the presidential election.

These contributors, their money and their desires for future benefits may be the most powerful force in the presidential campaign.

Although some journalists cover the story well, generally the media miss it, consumed by the unimportant and minor issues of the race—polls, gaffes, staff shake-ups and strategy shifts. Such items feed the appetite of cable television with its pundits, personable campaign-worker guests and so-called network analysts who tend to be unemployed political campaign operatives trying to stay ahead of the pack with outlandish predictions.

“The Political One Percent of the One Percent” is how the big donors were described in an analysis by the Sunlight Foundation and the Center for Responsive Politics, published on the center’s OpenSecrets.org website.

In the 2014 congressional races, the two organizations reported, “31,976 donors—equal to roughly one percent of one percent of the total population of the United States—contributed $1.18 billion” to Senate and House campaigns. Estimates for total 2016 presidential election spending range from $5 billion to $10 billion.

“Never have so many candidates entered a White House contest boosted by such huge sums,” Matea Gold and Ed O’Keefe wrote in The Washington Post.

Sanders, the Vermont senator who is running for the Democratic presidential nomination, told John Dickerson on “Face the Nation,” “I am raising money from small contributions. … I don’t have a super PAC. I don’t want money from the billionaires. And that’s the way we’re going to run our campaign.”

The front-runner for the nomination, Hillary Clinton, also decried the campaign finance situation. “We have to stop the endless flow of secret unaccountable money that is distorting our elections, corrupting our political process and drowning out the voices of our people,” she said last Saturday.

But the month before, Maggie Haberman and Nicholas Confessore reported in The New York Times that Clinton will personally court donors for Priorities USA Action, the Democratic super PAC supporting her candidacy, aiming to raise up to $300 million. Helping direct the operation is a well-known veteran of many Democratic campaigns as both fundraiser and political strategist, Harold M. Ickes. He’s definitely a man to see in Washington. With Los Angeles facing tense moments over the police shooting of a mentally ill African-American man, Mayor Eric Garcetti flew to Washington for city business and sneaked in a visit to a mayoral campaign fundraiser at Ickes’ Georgetown home. Unfortunately for the mayor, Los Angeles Times reporter Peter Jamison found out and wrote about his attendance at the event.

Confessore and Eric Lichtblau wrote in The New York Times that Ickes has organized meetings of labor leaders and other Clinton supporters in a search for big donors. Fundraisers told the reporters they hope to raise $1 billion.

Republicans, bulked up by billionaires such as the Koch brothers and gambling tycoon Sheldon Adelson, are expected to have more money than the Democrats. Former Florida Gov. Jeb Bush, relying on his father’s and brother’s fundraising networks, plus his own, is ahead of the others, raising millions for his super PAC, Right to Rise, and for his campaign organizations. His rivals are trying to do the same.

This is the legacy of Justice Kennedy’s decision. “It is the campaign money that gets you in the door, and you will get five minutes,” said Robert Stern, a noted lawyer who wrote the California Political Reform Act, which tried to lessen the influence of the Third House. “With a certain amount of money you will be a best friend. Access is valuable, extremely valuable.”

In this presidential campaign, a big contribution will buy much more than five minutes. “I worry about us moving toward oligarchy, where our political system is controlled by the rich and powerful,” Sanders said.

He’s received about $200,000 in small contributions to BernieSanders.com. It’s a noble effort but hardly enough to go up against the flood of money to other campaigns. The legacy of the Third House, now enshrined by alum Justice Anthony M. Kennedy, lives on.