It has been 30 years since Anthony Kennedy was sworn into office on the Supreme Court. Kennedy was President Ronald Reagan’s third choice for the post. His first choice — D.C. Circuit Judge Robert Bork — was deemed too conservative by the Democratic Senate, and Reagan’s second, Judge Douglas Ginsburg, fell from grace after media reports about his marijuana use. Kennedy was a conservative whom both parties could accept.
Over the decades, in a court riven by partisan and ideological differences, Kennedy has been the key vote on a number of groundbreaking decisions.
He voted to uphold the constitutionality of abortion, but also approved some restrictions on abortion, provided they do not pose an “undue burden” on women.
He has consistently voted to support the rights of those in the LGBTQ community, including his opinion recognizing same-sex marriage.
But when it comes to Kennedy’s decisions on issues affecting democracy in this country, his legacy is more mixed. Now, with speculation that Kennedy is expected to announce his retirement from the bench as soon as this year, the justice has another chance to redeem that legacy in the eyes of groups working to ensure that every vote counts and that mega-donors do not have outsized influence on US politics and public policy.
That’s the Kennedy paradox, critics say: heedless and hasty on campaign finance laws, and too timid on partisan redistricting.
Nonpartisan groups advocating to reduce the limit of money in politics and for election reforms find Kennedy’s record somewhat problematic. But this year, Kennedy’s vote on a key partisan redistricting case, Gill v. Whitford, could win them over. The Supreme Court heard arguments in the suit in 2017.
The way Kennedy has looked at campaign finance and redistricting shows two sides of the jurist — and why he inspires both hope and frustration among some of those advocating for campaign finance reform and for fairer elections.
Eight years ago, Kennedy wrote the majority decision in Citizens United v. Federal Election Commission (FEC), allowing for-profit and nonprofit corporations to spend unlimited amounts of money to influence the political process as long as the source of that money is disclosed and corporations do not coordinate their activities with candidates or political parties.
In his opinion, Kennedy observed: “Rapid changes in technology — and the creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers.”
He ruled that the government “may not suppress political speech based on the speaker’s corporate identity.”
The Kennedy Paradox
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The decision essentially consigned more than a century of campaign finance law “to the trash heap,” Daniel Weiner, senior counsel for the nonpartisan Brennan Center for Justice, told WhoWhatWhy. The decision, combined with the failure of Congress to pass laws to curb campaign finance abuses, and the lax enforcement of the Federal Election Commission (FEC), has created a political landscape that “amplifies” the influence of mega-donors on federal elections and public policy, Weiner said.
But in 2004, when the court considered the problem of congressional district lines that are drawn by political parties to heighten their electoral prospects, Kennedy was far more cautious. He sided with conservatives in a decision not to intervene in a partisan redistricting case in Pennsylvania.
Nevertheless, he disagreed with the conservatives’ view that partisan redistricting should never be reviewed by the courts. Kennedy did foresee a role for the courts on the issue, Weiner said, adding, however, that Kennedy then “punted.” Since partisan gerrymandering was “an inevitable part of the political process,” Kennedy concluded that it would be difficult for the Supreme Court to determine how much partisan gerrymandering was “too much,” Weiner said. The court lacked a “manageable standard.”
That’s the Kennedy paradox, critics say: heedless and hasty on campaign finance laws, and too timid on partisan redistricting.
“He was cautious to the point of perhaps overly cautious and let serious problems fester that cried out for judicial intervention, whereas in other circumstances he seemed willing to just wade into the thicket and strike down long-standing rules left and right because he just personally didn’t think they made sense,” Weiner asserted. “Ultimately, when his legacy for our democracy is assessed, that might be a dominant theme.”
As a consequence, Weiner said, there’s been “this more than decade-long tortuous process of trying to get him comfortable with a rule that can be applied to guarantee the basic right of one person one vote.”
The Citizens United decision ignored the likelihood that corporations would flout requirements about disclosing their donations and not having relationships with candidate campaigns, said Bob Biersack, a senior fellow with the Center for Responsive Politics and former FEC staffer.
“There is a whole big industry in Washington to evade, manipulate and finesse” restrictions, whether they are imposed by the FEC, the Securities and Exchange Commission (SEC), or other federal agencies, Biersack said.
As a consequence, the decision spurred the creation of independent political action committees, or super PACs, which can accept unlimited contributions from unions, corporations, and individuals — provided that they do not directly coordinate with candidate or party campaigns and that they disclose their donations. But in reality, Weiner said, candidates largely have grown to depend on super PACs to virtually run their campaigns, since the coordination rules are routinely ignored.
Over the past eight years, the proportion of political spending by outside groups in federal elections has risen dramatically, Biersack said. Outside groups spent about 20 percent of the $6.5 billion influencing federal elections in 2016.
“In a lot of ways, the real impact of these outside groups and the money you don’t see very well may … be more focused on congressional races,” Biersack said. “The impact may be bigger for congressional races than it would ever be for a presidential campaign.”
But while Donald Trump in 2016 did not rely on large donors for his victory, Weiner speculated that Trump is counting on these donors to fund his 2020 campaign. In both presidential and congressional races — and for both parties, he added — the priorities of large donors are reflected in the positions policymakers take.
“Tax reform was driven by the GOP donor base,” Weiner charged. “The GOP’s handful of top donors made clear to the Republican party that they would cut them loose if they didn’t pass it, and you have Republican congressmen and senators saying that openly.”
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Democrats, too, reflect policy agendas that are dominated more by big donors than the party’s average supporters, Weiner contended. The result? Democrats that espouse “milquetoast Wall Street reform rather than something more radical. Obamacare rather than single-payer.”
And while many large givers are known to the public, Weiner added, it is unclear how much corporations are secretly spending on campaigns. Super PAC donors are disclosed, he conceded, but it is easy to create a shell company to hide the real source of the contributions.
Biersack suggested that Citizens United unleashed a more fundamental attack on democracy. When money so dominates electoral politics, and rules are flouted, “the process feels fixed,” he said. That erodes the public’s notion of “the rule of law.” When the public does not know who is bankrolling elections, that “plants a seed” that causes more distrust: “How can you want a system where you don’t know what’s going on?”
If Biersack is right, then Kennedy’s role in setting some restrictions on partisan redistricting may be all the more important. One thing is certain: Kennedy’s vote will be crucial in any redistricting case this year. Weiner is optimistic: “We’re hopeful that ultimately Justice Kennedy will do the right thing.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from Anthony Kennedy (Supreme Court / Wikimedia), Anthony Kennedy (Supreme Court / Wikimedia), and Reagan and Kennedy (The White House / Wikimedia).
