In a new Slate commentary, election law expert Rick Hasen argues that a single, “unnecessary” sentence by Justice Anthony M. Kennedy has led to “the unraveling of campaign finance law.” Hasen’s article examines two landmark Supreme Court cases in which Justice at Stake filed briefs–Citizens United and Caperton v. Massey.
Here is the sentence from Justice Anthony Kennedy’s majority opinion in Citizens United that Hasen targets: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Hasen asks the provocative question of whether a majority of the court, including Justice Kennedy, even believes the Citizens United sentence at issue, given an earlier ruling about third-party spending in judicial elections, in Caperton v. Massey. Hasen explains:
“The Citizens United decision is at odds with Kennedy’s opinion from just six months earlier in Caperton v. Massey, recognizing that a $3 million contribution to an independent group supporting the election of a West Virginia supreme court justice required that the justice recuse himself from a case involving the independent spender supporting his candidacy. The Caperton Court pointed to the ‘disproportionate’ influence of that spending on the race and at least an appearance of impropriety.”
Justice at Stake filed an amicus brief in Caperton and hailed the Supreme Court’s ultimate ruling. It filed an amicus brief in Citizens United, and when a decision was issued, warned that it threatened a cash deluge from corporate treasuries in judicial elections — and a grave threat to America’s courts.
While JAS focused on judicial elections, the initial impact of Citizens United is being felt at the federal level. Hasen said Justice Kennedy’s opinion has spawned federal “Super PACs,” the independent-expenditure committees that can receive contributions of unlimited size. Super PACs are likely to replace political parties “as a conduit for large, often secret contributions” in this election cycle, Hasen wrote.
Hasen operates Election Law blog.