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Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’

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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.

Joe Conason

A highly experienced journalist, author and editor, Joe Conason is the editor-in-chief of The National Memo, founded in July 2011. He was formerly the executive editor of the New York Observer, where he wrote a popular political column for many years. His columns are distributed by Creators Syndicate and his reporting and writing have appeared in many publications around the world, including the New York Times, the Washington Post, The New Yorker, The New Republic, The Nation, and Harpers. Since November 2006, he has served as editor of The Investigative Fund, a nonprofit journalism center, where he has assigned and edited dozens of award-winning articles and broadcasts. He is also the author of two New York Times bestselling books, The Hunting of the President (St. Martins Press, 2000) and Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth (St. Martins Press, 2003). Currently he is working on a new book about former President Bill Clinton's life and work since leaving the White House in 2001. He is a frequent guest on radio and television, including MSNBC's Morning Joe, and lives in New York City with his wife and two children.

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  1. charleo1 January 21, 2016

    Ironic this so called, “moderate conservative”, this unicorn that only exists in Right Wing fairy tales, has managed undermine what little faith Americans had in their government after George W. Bush. And upend the entire establishment Conservative Right. Vote all the rascals out, cries the hapless, confused, lied to, wandering inflamed. They can’t buy the next bunch, can they? Donald Trump: Look, my fellow Americans, don’t over think this. In fact, vote for me. I promise to do all the thinking for you. And I’m a tremendous thinker!

  2. jmprint January 21, 2016

    Citizens United needs to be overturned immediately.

  3. plc97477 January 21, 2016

    poorly informed or willfully ignorant, How about bought and paid for?

  4. johninPCFL January 21, 2016

    The Koch brothers’ father famously made his fortune working for Joe Stalin and Adolph Hitler, where he learned first-hand the importance of money in politics and power. It’s a lesson he brought home and exercised in his founding of the John Birch society and other terrorist organizations.
    His sons Charles and David carry forward those lessons today, and have bought themselves various state legislatures, judgeships, the Congress and the Supreme Court. Only one high federal government office has eluded them thus far. They’ve pledged to spend $889MM in this election cycle, and Jeb! has spent about $60MM of it so far.
    One wonders whether they’ll finally get that nap in the Lincoln bedroom they’ve craved for so long.

  5. Otto Greif January 21, 2016

    Liberals hate free speech.

    1. Aaron_of_Portsmouth January 21, 2016

      You may be unaware of this, dear Otto, but free speech carries with it a sense of moderation, responsibility, forethought, and comportment. “Free speech” in its essence doesn’t mean to incite to riot, to scream “fire” in a crowded theater, or to utter racist epithets, for example.
      That is a tall order for many, especially for the more torpid in intellectual vigor. But those positive attributes I mentioned are conditions to aspire to nonetheless.
      I hope you are working on developing those qualities, as I am.

      1. Otto Greif January 21, 2016

        Racial epithets are protected free speech.

        1. Steve Batchelor January 22, 2016

          No one on this site is surprised that you would be stupid enough to state what you just did…May God have mercy on your rotten soul.

          1. Otto Greif January 22, 2016

            That’s a fact, it’s disgusting the way you people have no regard for free speech and the First Amendment.

          2. Independent1 January 24, 2016

            What’s disgusting IS YOU!! I actually feel nauseas every time I reply to you. You’re so morally corrupt that I have to wash my hands to feel clean again. Only people like you take advantage of our 1st amendment and use it beyond its intent to spread the filth that is in their minds.

          3. Otto Greif January 24, 2016

            Liberals hate free speech.

          4. Stan H January 25, 2016

            I’m sure all of those conservatives at the ACLU completely agree with you. [sarc off]

    2. Insinnergy January 21, 2016

      Only a moron would consider money to be equal to free speech.

    3. Independent1 January 24, 2016

      Our forefathers worked hard to establish a government that precluded any faction from having an undue voice in our democracy. For example, they created the Senate with only two representatives from each state in order to prevent large population states from having an undue influence in the voting in that legislative body.

      Citizens united totally undoes all the efforts that they made. Had they wanted to allow the wealthy to have an undue voice in governing our country, they would have created a legislative body that would have allowed states to put as many representatives in Congress as their wealth would allow them. Anyone who believes that our founding fathers would not see through the idiocy of Citizens United is a moron such as yourself.

      In reality, no person or entity should be allowed to contribute to elections in America, who is not eligible to vote in that election. So given that foreign countries and corporations are not allowed to vote, neither of these should be allowed to contribute to the election of any political candidate: and that includes contributing to members of congress via lobbying efforts as companies on K Street are also not eligible to vote.

      1. Otto Greif January 24, 2016

        Government cannot infringe or restrict speech. Try reading the Citizens United opinion.

  6. Otto Greif January 21, 2016

    Hypocrite Joe Conason defends billionaire George Soros.

    1. Aaron_of_Portsmouth January 21, 2016

      Thank you for your usual knee-jerk response, Otto.

      1. Otto Greif January 21, 2016

        It’s not “knee jerk” to point out Conason’s gross hypocrisy.

        1. Daniel Jones January 21, 2016


    2. Insinnergy January 21, 2016

      Sorta missing the entire point there, Troll.

    3. Daniel Jones January 21, 2016


      That is all, and there’s never any substance–just grief.

  7. Aaron_of_Portsmouth January 21, 2016

    A “moderate conservative” is an interesting oxymoron, especially given the Right’s propensity for extremist positions, blocking those regulations that would prove beneficial in staunching the flow of “unbridled liberty”(whose very embodiment is the animal), fostering an atmosphere that enhances already-existent conspiracy theories, and fostering the growth of new myths.

    Nothing moderate about those scenarios at all.

  8. Daniel Jones January 21, 2016

    I doubt that Kennedy was either uninformed or ignorant.

    He was and is complicit. This horror is purposeful. This is what he wants.
    And he was hoping the false transparency would prevent anyone even taking note of the loss of political equality at all.

    1. Todd Telford January 24, 2016

      Wouldn’t you like to see HIS emails prior to the decision and see if there isn’t a stream of contact with the Koch brothers, Karl Rove, or GOP leadership. Probably all of the above.

  9. Thomas Martin January 22, 2016

    Kennedy’s statements in the majority opinion reflect his intentional effort to promote the wealthy in our society. He may have played the “dumb” like a fox routine, but he knew precisely what he was doing. No excuses. Thanks for the mess Justice!

  10. atc333 January 24, 2016

    “Speech” is written, verbal, communication of concepts, ideas and opinions. Large campaign contributions are not speech, but are nothing more than buying access and obligation. . What Citizens United has done is simply create a Court Authorized exception to a form of political bribery, totally ignoring human nature, and the deliberate creation of a conscious or subconscious sense of obligation and duty to the group or individual which made a substantial financial contribution towards a politicians successful election.

    Massive financial contributions buys access to the candidate and a sense of obligation to the donor that the average voter or citizen will never have with their small 5 to 200 dollar contributions. That is not Speech.

  11. Elliot J. Stamler January 24, 2016

    1-Justice Kennedy is a fine man and has done more than he share in his opinions in protecting civil liberties and Mr. Conason like many ideological leftists is as disinterested in genuine dialogue about constitutional law as are the ideological rightists.
    2-The CU decision was supported strongly by the ACLU (I am not a member) and such lawyers as former Gov. Spitzer of NY (Harvard Law Review) and many others. Hardly conservative. The CU decision had many presidential decisions preceding it.
    3- Conason and other LEFTISTS (pretending to be liberals and civil libertarians) should remember the words of Justice George Sutherland almost one century ago:
    The constitution must be adhered to as much when it
    pinches as when it comforts.
    4- If the consequences of CU are so deleterious that they seriously interfere with democratic political processes, there is a remedy: amendment of the constitution. This is what our founding fathers intended and has been done before in such instances.
    5- Conason’s language is a replication of the insulting defamation of the ultra-conservative smear artists of the right..e.g. Ann Coulter, Mike Huckabee, etc.

  12. yabbed January 24, 2016

    He was a lobbyist for big business and that is what he is today. Reagan appointees tended to be working behind the scenes for big business while pretending otherwise, just like Reagan himself.


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