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Justice Kennedy's Political Casino

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg View. He was executive editor of the Week. He was previously a national affairs writer for Rolling Stone, a communications consultant and a political media strategist.
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The 2016 presidential campaign is unfolding in Supreme Court Justice Anthony Kennedy's world.

Kennedy's majority opinion in Citizens United, the court's 2010 ruling on campaign finance, gave corporations, unions and billionaires more leeway in their political spending habits. And while the decision is sometimes credited, or blamed, for more impact than it actually delivered, there's no question that big money has been running wild and free ever since it was decided.

In his decision, Kennedy pointed out why a previous court ruling, Austin, should be overturned and supplanted even in the face of stare decisis, the principle that precedent guides the court.   

"Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error," he wrote.

Fair enough. Five years later, in the thick of free-wheeling campaigns for presidential nominations, let's subject Kennedy's ruling in Citizens United to the same test. Does it deserve respect? Or has it put the court on a course of "sure error"?

The ruling struck down a prohibition on unlimited corporate independent campaign spending. Whether that's good or bad depends on your philosophy. Those who support maximum regulation of campaign finance believe Citizens United is a disaster. First Amendment absolutists revere it. That's not a dispute that evidence can resolve.

But the ruling touched on multiple aspects of campaign finance law, and in the process Kennedy made some assertions that are not holding up well under the duress of real-time politics.

Kennedy's analysis of independent campaign spending is surely one. Independent expenditures are by definition not coordinated with a candidate's campaign. In Buckley v. Valeo in 1976, the court ruled that the absence of coordination undermines the value of a campaign expenditure and "alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate."

Shorthand version: The legal limits on contributions made directly to a candidate prevent corruption. And even large independent expenditures won't corrupt a candidate if the expenditures can't be coordinated with the campaign to suit strategic needs.

The court's reasoning, dubious four decades ago, is more difficult to credit now. Still, Kennedy swallowed it -- and then some. Not only do these independent contributions not corrupt, Kennedy wrote, "In fact, there is only scant evidence that independent expenditures even ingratiate."

In a political season in which Republican presidential candidates have queued for audiences with billionaires like supplicants before the Pope, Kennedy's conclusion borders on ridiculous. Sheldon Adelson and the Koch brothers have committed to making huge independent expenditures in the 2016 presidential race, which may have life-or-death consequences for individual candidacies. Adelson single-handedly kept Newt Gingrich's campaign alive in 2012. He appears eager to select another beneficiary from the Republican field in 2016.

As former Obama White House Counsel and veteran election lawyer Robert Bauer wrote, via e-mail, nothing in political experience suggests that an independent expenditure exists on the far side of a boundary between spending that could corrupt and spending that couldn't. "Why would a candidate be any less corrupted by a huge amount of money spent independently, when the independent spender can show up to collect his winnings after the fact?" he asked.

The notion of non-coordination isn't faring any better. Jeb Bush personally raised tens of millions for the "independent" super-PAC now promoting his candidacy. The man in charge of spending the money that Bush raised is the candidate's longtime adviser and ad maker. When a similarly "independent" committee supporting Ohio Governor John Kasich wanted to shoot footage for commercials, Kasich magically appeared at the designated time and place. (Like Bush, Kasich argues that it couldn't have been an instance of coordination because his presidential campaign, while active and obvious, wasn't technically official at the time.)

The reality of campaign practice in 2015, in which "independent" campaign activities are carried out by professional political organizations intimately tied, and devoted to, a specific candidate, bears no resemblance to the naïve vision proffered by Kennedy in Citizens United.

So does Citizens United deserve to be respected or reversed?

Trevor Potter, former Federal Election Commission chairman and 2008 counsel to John McCain's presidential campaign, pointed to a Bloomberg Politics poll showing overwhelming -- 78 percent -- support for overturning Citizens United, with only 17 percent calling it a good decision. "These numbers are off the charts," said Potter, who now leads a nonprofit organization seeking more stringent campaign finance regulation.

University of California at Irvine law professor Rick Hasen, who runs the excellent Election Law Blog, pointed out via e-mail that in Citizens United, Kennedy and Justices Antonin Scalia and Clarence Thomas all voted to throw out recent court precedents to which they personally had dissented. Turnabout, Hasen said, is fair precedent: "If and when there is a more progressive Supreme Court majority, there is no more reason for the Citizens United dissenters to respect Citizens United as precedent than there was for the conservative Justices to respect those earlier cases." 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net