I have written this oped for the National Law Journal. it begins:
Many people know of Justice Anthony Kennedy’s controversial 2010 Supreme Court opinion in Citizens United v. Federal Election Commission, in which he 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.
Few people know of Kennedy’s opinion a year earlier in Caperton v. Massey, in which the Court held that $3 million in independent spending supporting a candidate for the West Virginia Supreme Court by a litigant with a $50 million case before that Court created enough of a problem with ingratiation and access to require the judge to recuse himself from hearing that case.
New revelations from that litigant and one of the justice involved demonstrate that Kennedy was right in Caperton to be concerned about the troubling role of big money in securing ingratiation and access with elected officials, a lesson which he should have carried over to Citizens United.
One conversation to come out at trial, however, caught the ear of Hofstra law professor James Sample, an expert in judicial elections, who passed it along to me. In the recorded telephone conversation, Blankenship is talking to a woman (whom prosecutors identified as a girlfriend), lamenting the fact that a picture of Blankenship and Maynard was “all over WSAZ,” a West Virginia television station. Oh well, Blankenship laments, “I won…saved Massey $70 million.”
That’s right, the ingratiation and access that Blankenship pursued of Supreme Court justices through independent spending in West Virginia paid off handsomely for his company.
Money doesn’t matter? Come on. Even Benjamin, speaking at a conference at the University of Virginia last week, admitted as much: “I was tone deaf in not recusing myself in Caperton.”
You might think that the world we have lived in since Citizens United would have given Kennedy second thoughts. But in a recent interview with Harvard law dean Martha Minow, Kennedy defended his decision in Citizens United, and said disclosure is an answer to the problem of money in politics.
Disclosure is not enough to stop people like Blankenship from buying influence. All of his contributions and spending were disclosed, but it did not stop what Kennedy in Caperton called Blankenship’s “disporoportionate” influence.
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.