Anthony Kennedy is discussed in these excerpts solely as the author of the Supreme Court’s decision in Citizens United, in an episode of The Bob Zadek Show featuring Professor Mike Munger on money in politics. The excerpts contain no biographical information about Kennedy, no account of his tenure on the Court, and no other case attributed to him. What they offer is one guest’s reading of the Citizens United opinion and of the campaign finance law it displaced.
The road to Citizens United
Munger’s account begins with a documentary about Hillary Clinton, described as an hour and fifteen minute film setting out reasons its makers thought she was a bad candidate. Munger characterizes it as an expression of information, factual even if its interpretations were wrong. Because it was to be shown within 60 days of the 2008 election, the Federal Election Commission barred its exhibition, its television broadcast, and advertising for it, on the ground that it violated McCain-Feingold Who Wants to Buy a Politician? With Mike Munger (2015).
Munger states that the Commission’s interpretation of the law was correct, and that the law itself was unconstitutional but had been upheld in McConnell v. FEC. In his telling, the film mentioned Hillary Clinton’s name and expressed advocacy — it said she was a bad person — and so ran afoul of the campaign finance statute. He frames the underlying question as one of equal access to expression: everyone is entitled to an opinion, and everyone gets a microphone.
The case, Munger says, wended its way through the courts to the Supreme Court. He describes wanting the Court to ask what would happen if the same political statement had appeared in a book published by Cambridge University Press within 60 days of the election. According to Munger, the Court did ask, and the Solicitor General of the United States answered correctly that the law would require burning the book and banning its publication. Munger recalls silence in the courtroom at that implication.
Kennedy’s opinion
After a rehearing, Munger says, the decision was written by Anthony Kennedy. He offers two assessments of it. The first is a criticism: the opinion can be criticized as overly expansive because Kennedy expanded the issue from nonprofit corporations to for-profit corporations. The second is approval of the result: most importantly, the Court overturned McConnell v. FEC, which Munger calls unconstitutional in the first place and a bad decision. On the charge that the Court overturned precedent, Munger’s response is that of course it did, because the precedent was stupid Who Wants to Buy a Politician? With Mike Munger (2015).
Munger then turns to what he considers the widespread misreading of the case. People he talks to in bars say the decision held that corporations are people. Munger states that the phrase never appears anywhere in the decision, and that the decision is based on freedom of association: a group of people can come together, pool their resources, and express political views. He quotes Kennedy’s opinion: if the First Amendment has any force, it prohibits Congress from fining or jailing associations of citizens for simply engaging in political speech. On that basis Munger concludes the case was correctly decided, and repeats that what is protected is freedom of association, not any doctrine that corporations are people. Corporations, in his formulation, are a kind of association, and as such are able to express views — with political views the centerpiece of that freedom.
Bob Zadek responds in agreement, adding that if one person has freedom of speech, a group of persons has the same freedom of speech, and that there is nothing more sinister in the holding than that Who Wants to Buy a Politician? With Mike Munger (2015).
Across episodes
Only one episode in the excerpts touches on Anthony Kennedy, so the excerpts show no development in his treatment across the program.
What the sources do not cover
The excerpts say nothing about Kennedy’s background, nomination, tenure, or any opinion other than Citizens United, and nothing about his votes or writings outside that case. They do not state what Citizens United held beyond the freedom-of-association rationale Munger attributes to it, nor which amendment or provision of McCain-Feingold was at issue. No date is given for the decision, and no other participant in the case is named besides the Solicitor General.