Kennedy Strikes A Blow For The Powerful

Q. What do you call someone who aims to make a powerful argument in favor of a
position and in so doing undermines his own position?

A. Anthony Kennedy

Delivering the majority position in Citizens United v. Federal Elections Commission on Thursday, Justice Kennedy argued

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.... The rights of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self government and a necessary means to protect it.... (p. 30)

Premised on mistrust of governmental powers, the First Amendment stands against attempts to disfavor certain subjects or viewpoints .... (p, 31)

Quite apart from the purpose or effect of regulatory content, moreover, the Government may commit a constitutional wrong whereby how it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right of the use speech to strive to establish worth, standing, and respect for the speaker's voice. (p. 31)

And so Justice Kennedy led the fight to disfavor certain subjects or viewpoints. Think Progress reports that the U.S. Chamber of Commerce has told Roll Call that the $123 million it spent in 2009 influencing federal policy

shouldn’t come as a shock to anyone because it was an incredibly active year for the president and the economy,” said Tita Freeman, a chamber spokeswoman. “Hence the chamber was active in all of the major debates that impacted the economy and business community.”

Freeman said the big spike in spending in the fourth quarter was due largely to health care, including issue ads, meetings and letter-writing campaigns.

Aside from health care, the chamber listed a slew of other lobbying issues, including energy and climate change legislation, endangered species regulatory processes, executive compensation and travel promotion.

And it shouldn't- shouldn't- come as a surprise to Justice Kennedy that if the Chamber of Commerce is spending $100-$150 million (and that in only one year) to "favor" the anti-climate science or anti-health care "viewpoints," it is disfavoring the other viewpoints, whose proponents are not likely to have a hundred million bucks lying around.

The Court, led by Justice Kennedy, surely is "taking the right to speak from some and giving it to others," thus "depriving the disadvantaged person or class of the right to use speech" for its purposes. The Chamber already spent over $100 million to advance its viewpoints, probably more than most readers of this blog had to promote its point of view. It may be hard for us to think of the Chamber of Commerce as "the disadvantaged person or class"- but then we are not Anthony Kennedy.

No one would deny, or would have denied, that "speech is an essential mechanism of democracy." The First Amendment guarantees the right against government intrusion to "freedom of speech"- a right held, even before Thursday, by every executive of the Chamber of Commerce and of every corporation in the United States. In its decision creating the right of a corporation to spend its treasury funds on broadcast ads, campaign workers or billboards that urge the election or defeat of a federal candidate, the Court seems to suggest that speech becomes "free" when an organization is able to buy it. Officials thereby become accountable not to the people but to those able to buy the speech, who purchase, as Think Progress put it, "the opportunity to purchase its own fleet of friendly lawmakers."

This purchase would be easily made. Jamie Raskin, a professor of constitutional law at American University and Maryland state legislator, on Friday's Democracy Now! spoke of

Exxon Mobil, which is the biggest corporation in America. In 2008, they posted profits of $85 billion. And so, if they decided to spend, say, a modest ten percent of their profits in one year, $8.5 billion, that would be three times more than the Obama campaign, the McCain campaign and every candidate for House and Senate in the country spent in 2008. That’s one corporation. So think about the Fortune 500.

Justice Kennedy is right to be concerned that government might "identify certain preferred speakers." He should know- he has done so himself or, rather, with four co-conspirators.