Enjoying life tenure and political immunity as they do, the judges on the nation’s highest court are never held accountable for their transgressions in any meaningful way, except by history. Yet rarely if ever has a landmark opinion by a Supreme Court justice been proved wrong as quickly and as decisively -- and with such fateful effects -- as the historic decision penned by Justice Anthony Kennedy last January in Citizens United v. Federal Elections Commission. Wrong not only as a matter of ideology, partisanship, or constitutionality, although it is arguably all of those, but wrong in its most important assertions.
When Kennedy, along with his four conservative colleagues, overturned the century-old limitations on corporate funding of political campaigns, he justified this enormous gift to his fellow Republicans with what amounted to a false promise. Full and timely disclosure of the sources of the expected flood of corporate money, according to Kennedy, would serve the same essential purpose as the discarded restrictions, keeping voters informed by exposing politicians and their business benefactors.
"The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech," Kennedy wrote in a tone of condescension, citing earlier cases in which the Supreme Court had upheld federal disclosure requirements even while rejecting limits on expenditures and noting the disclosure requirements imposed on lobbyists. With the zeal of an internet huckster, he claimed that technology would dispel the aura of corruption and secrecy that inspired McCain-Feingold and earlier attempts to restrict corporate money.
If corporate shareholders objected to the political expenditures of a company’s management, wrote Kennedy, their protests "can be more effective today because modern technology makes disclosures rapid and informative." In his mind, indeed, the mere existence of the Internet seems to excuse the shredding of all limits on corporate political activity:
A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing [McCain-Feingold] were premised on a system without adequate disclosure … 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 and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are "in the pocket of so-called moneyed interests." The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
Nine months later, we know that there is no effective disclosure -- and that rather than increasing, actual disclosure has fallen precipitously in this midterm election year. A recent study by Public Citizen, the nonpartisan organization founded by Ralph Nader, shows that effective disclosure of spending by “independent” groups has dropped from 98 percent in 2004 to 32 percent this year. Political malefactors like Karl Rove, who were unable to conceal the sources of the "Swift Boat" sewer money six years ago, feel so liberated by Citizens United that they are now collecting and spending tens of millions of dollars without bothering to register as a political committee, let alone disclose the names and interests of their fat-cat backers.
Perhaps Kennedy’s naiveté extended to the assumption that his fellow Republicans, especially in the U.S. Senate, would share the civic commitment to an informed electorate. Or perhaps he knew that once he and the other four conservatives on the court lifted restrictions on corporate political power, all the rhetoric about transparency would be discarded in a classic bait-and-switch. The Court's insistence on delivering a broad constitutional decision without benefit of facts or investigation looks even worse today. But whatever Kennedy's motives were, his own words now rebuke him and the conservative majority on the court -- and vindicate the president who was excoriated last winter for criticizing them in the State of the Union address.