“A Stinking Open Sewer”: Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’
On today’s anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures – the modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt – 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 January 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 lobbyist 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-shit. “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 Anthony Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer.
What a legacy.
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, January 21, 2016
“Reared In The Game”: On Our Highest Court, A Former Lobbyist Guts Campaign Finance Reform
For a large and bipartisan majority of Americans, the increasing power of money in politics is alarming, but not for the conservative majority of the United States Supreme Court, whose members appear to regard the dollar’s domination of democracy as an inevitable consequence of constitutional freedom — and anyway, not a matter of grave concern. Expressed in their decisions on campaign finance, which continued last week to dismantle decades of reform in the McCutcheon case, the Court’s right wing sees little risk of corruption and little need to regulate the flamboyant spending of billionaires.
Given the behavior of certain conservative justices, such as Antonin Scalia, Clarence Thomas, and Samuel Alito – who flout the rules that govern partisan behavior among lower-court judges – it is easy to regard their rulings as partisan cynicism. But there is also an element of willful naiveté when the conservatives claim, for instance, that corrupt donations will be exposed by the instant transparency of publication on the Internet. Any reporter who has covered elections can attest that there are dozens of ways for wealthy donors to avoid public scrutiny until it is much too late to matter.
But if right-wingers like Scalia and Thomas are simply pursuing ideological objectives, what about Anthony Kennedy, the Reagan appointee from California who was long seen as a moderating influence and a “swing vote”? On the issue of campaign finance, Kennedy has marched along with the majority, seeming just as fervent in his urge to destroy every regulation and protection against the “malefactors of great wealth” erected since the days of Theodore Roosevelt.
It was Kennedy who wrote the majority opinion in Citizens United, which dismissed the notion that corruption will arise from unlimited political campaign contributions because they will all be disclosed. “Citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests …and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” he wrote. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
But if any Supreme Court justice knows how ridiculous that sounds, it must be Kennedy – whose own background as a corporate lobbyist and son of a lobbyist has been forgotten in nearly three decades since his Senate confirmation in 1987.
Yes, Kennedy was a respected appellate court judge before Reagan appointed him to the high court. But before that, he grew up and then worked as an attorney in Sacramento, where his father became a “legendary” lobbyist in a state capital renowned as “freewheeling” (a polite term that means “routinely corrupt”).
His father, Anthony “Bud” Kennedy, was a backslapping, hard-drinking partner in a powerful lobbying law firm run by one Arthur “Artie” Samish, “the “secret boss of California” who finally went to prison on tax charges in the mid-1950s, while young Tony was studying to enter law school. Samish liked to brag that he had amassed more power than anyone else in the state, including the governor, that he could buy any legislator with “a baked potato, a bottle, or a broad,” and that he was able to “unelect” any lawmaker who didn’t vote his way.
The major clients of Samish and Kennedy were racing, entertainment, and liquor interests, notably including Schenley Industries, then run by J. Edgar Hoover’s mobbed-up pal Lewis Rosenstiel. When Bud Kennedy died suddenly in 1963, young Tony was only two years out of law school. But he went into the family business and inherited his late father’s clientele.
While Kennedy always insisted that lobbying was only a “sideline” in his law practice, his billings were substantial – the equivalent of hundreds of thousands or more in today’s dollars. In 1974, he pushed through a bill for Capitol Records that saved the company (and cost the state) millions in sales taxes.
How did he do it? The same way that special interests work their will today – by doling out huge wads of cash to lawmakers on behalf of his clients. The single largest recipient of Kennedy lobbying largesse, according to the Los Angeles Times, was a legislator who introduced a bill to benefit the opticians’ lobby that Kennedy himself had drafted (it passed). He gave that guy alone about $6,500 in campaign contributions over six years, or roughly $40,000 in today’s dollars.
So if anybody on the Court knows how the political and legislative process is greased in this country, that would be Anthony Kennedy. After all, he was reared in the game. And it shouldn’t deceive anyone when he sounds as if he doesn’t understand how things work or who wins in that perverse process – and how everyone else loses.
By: Joe Conason, Editor in Chief, The National Memo; Author, Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth; Published in The National Memo, April 4, 2014
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