Scholar Spotlights ‘Revelations’ Years After ‘Caperton’

Two recent revelations show that Supreme Court Justice Anthony Kennedy was right when he wrote in Caperton v. Massey about runaway spending in a state judicial election and getting access to, and ingratiation from, elected officials, election law scholar Rick Hasen writes at National Law Journal:

  • Then CEO Don Blankenship of Massey Energy, the big spender in the Caperton case, is on trial on charges in a coal mine explosion. At trial, a recording was played in which he rued that a picture of him and a state Supreme Court justice was “all over WSAZ,” a TV station. Anyway, Blankenship said, “I won…saved Massey $70 million.” Photos of Blankenship and that justice vacationing in France were published; Blankenship’s spending was in support of a candidate for the high court, who once elected, declined to recuse in civil litigation involving Massey and then cast a deciding vote in favor of striking down a $50 million award against the company.
  • The latter justice, Brent Benjamin, recently told a group at the University of Virginia, “I was tone deaf in not recusing myself in Caperton.”

Hasen worked his way in his National Law Journal essay around to Citizens United, in which he said Kennedy “assured the American people that independent spending in elections cannot corrupt or create the appearance of corruption, and that ‘ingratiation and access’ aren’t corruption.” Hasen concluded, “Kennedy in Caperton was right. Big money, even nominally independent big money, can ingratiate, provide access, and give disproportionate influence. If only Kennedy in Citizens United would have listened.”