Justice Kennedy at Harvard

November 9, 2015
posted by Bob Bauer

Visiting Harvard Law School, Justice Kennedy answered a question about Citizens United by saying “what happens with money in politics is not good.”  And he tied certain of these unfortunate effects to that case: the “result is not happy.”  Frank Wilkinson of Bloomberg News wondered if the Justice was having “second thoughts” about his campaign finance jurisprudence.

The Justice did not say clearly what about the use of money in politics is not good, or in what particular respects the results of Citizens United are not happy.  Part of the problem, he said, was disclosure, which is too slow.  With faster, Internet-speed reporting, voters could decide whether a candidate receiving certain sources and amounts of money deserve their vote.  This is as far as he would explicitly go, but there were hints of other reservations that he would still have about undoing Citizens United.

One is the difficulty he perceives of limiting the speech effects of regulation to the cases that we should care about – – corruption or its appearance.  On this point the Justice had something revealing to say: that there is a “tremendous speech problem” if, “in a small town”, an organization like the Sierra Club or the Chamber of Commerce “couldn’t take out an ad.”  Here appears the worry that the law does not distinguish adequately between the big and the little guy. The large national organizations that are the Sierra Club and the Chamber of Commerce may present a threat with heavy spending, but their branches and affiliates, operating in the “small towns”, do not: they should be able to “take out an ad.”  He is concerned about silencing the more local voice.  The Justice’s opinion in Citizens United covers this point, though briefly: “[the corporate spending prohibition] permits the government to ban the political speech of millions of associations of citizens [citation omitted]. Most of these are small corporations without large amounts of wealth.” 558 U.S. 310, 354 (2010).

Another difficulty is keeping regulation from reaching certain forms of communication that he believes should be protected. Justice Kennedy quickly brought up the government’s position in the first Citizens United oral argument that the corporate spending prohibition could extend to corporate-paid books.  The Justice asked how it can be “lawful and necessary” to bar the publication of a book?  “That can’t be right.” So, in suggesting the source of major free speech problems, he put the form of speech (e.g. a book) alongside its scale (an organization in a small town that takes out an ad).

What is somewhat strange about all this is that Citizens United may protect to some extent the “small voices” – – the smaller corporations, including nonprofits – – but it declined to put much First Amendment weight on the form of speech.  Hillary the Movie was available only in video-on-demand or in theaters.  The Court declined to adopt on these facts a narrow ruling, based on the form of speech, and reached instead for an overarching principle that speech restrictions could not vary with the identity of the speaker. Corporations, on this account, are like all other speakers, and the First Amendment analysis must be the same.

If Justice Kennedy was right about this, then what about the results are unhappy?  The full explanation cannot be the weakness of disclosure, because the expenditures his opinion authorizes, independent expenditures, are disclosed.  The adjustment he would like to see, faster disclosure, is hardly a major one in the constitutional scheme of things.

Yet the Justice is uncomfortable.  He hears, and he reads, that things are not going well.  The large quantities of money coursing through the political system make him uneasy, as it does others.  The more concrete significance of this spending for constitutional or public policy analysis presents the harder question that the Justice struggled to answer at Harvard.

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