Anthony Kennedy on Government Reform

Supreme Court Justice (nominated by Pres. Reagan 1988)

Constitution design: Branches of government SHOULD converse

The Court disregards the fundamental principle under our constitutional system that different branches of government "converse with each other on matters of vital common interest. The Constitution establishes a system of government that presupposes, not just "autonomy" and "separateness," but also "interdependence" and "reciprocity." Constant, constructive discourse between our courts and our legislatures is an integral and admirable part of the constitutional design.
Source: Conservapedia.com, "Anthony Kennedy Judicial Philosophy" , Nov 30, 2011

Federalism secures freedom, as Framers planned

The federal system rests on what might at first seem a counter-intuitive insight, that "freedom is enhanced by the creation of two governments, not one." The Framers concluded that allocation of powers between the National Government and the States enhances freedom, (1) by protecting the integrity of the governments themselves, & (2) by protecting the people, from whom all governmental powers are derived.

Federalism secures to citizens the liberties derived from the diffusion of sovereign power.

Source: The 1789 Project website, "Kennedy on Federalism" , Jun 21, 2011

Key to 2000 Bush v. Gore: don't change FL law

Gore's counsel in Bush v. Gore, David Boies, drew fire from Justice Kennedy, who was concerned the rambunctious Florida Supreme Court's decisions had changed the state's election laws after the election. Boies insisted the Florida Supreme Court was interpreting the Florida law, not creating it.

Kennedy pounded away, asking if the Florida legislature could have convened after the election and changed the rules as the court's decision had. Boies made what sounded like a critical admission, saying, "It would be unusual." To my ears, Boies had admitted the Florida legislature could not do what the Florida Supreme Court had done. Didn't that means the Florida court created new law?

Kennedy hammered Boies. "Could each county, " he asked, "give their own interpretation to what intent means, so long as they are in good faith and with some reasonable basis [of] finding intent?" From my vantage point, Boies made a second key admission, conceding, "it can vary from individual to individual" county.

Source: Courage and Consequence, by Karl Rove, p.214 , Nov 2, 2010

Limits on campaign donations drive free speech underground

In 2000, in Nixon v. Shrink Missouri PAC, [Zev Fredman, a marginal candidate for statewide office, assailed Missouri's contribution limits]. For their parts, Justices Thomas & Scalia would restore the law to its libertarian, pre-Buckley condition. [In 1976 in Buckley v. Valeo the Court rules that contributions could be limited, but expenditures could not.] Political speech, they said, is at the core of 1st Amendment concern. The Buckley incursion into the most important arena of free speech had created a "most curious anomaly." Turning to Fredman's candidacy, the dissenters noted his compelling need for large donations. Fredman lacked the advantages of incumbency, name recognition, or personal wealth. He had "managed to attract the support of a relatively small number of dedicated supporters," but their potential support would be a crime under Missouri law. The upshot: The state prevented Fredman's message from reaching the voters. This was emphatically wrong under the First Amendment.
Source: First Among Equals, by Kenneth Starr, p. 86 , Oct 10, 2002

Favors states’ rights, usually

The nine court members can be divided into three general alliances, but all of the justices have crossed ideological lines. The three conservative justices and two of the swing justices, including Kennedy, usually support states’ rights.

Kennedy is usually conservative, and part of the majority bloc that favors states’ rights, but voted against states that wanted to outlaw flag burning.

Source: Reuters article in Boston Globe, p. A45 , Dec 1, 2000

Corporate political spending is free speech.

Justice Kennedy wrote the Court's decision on Citizens United v. Federal Election Commission on Jan 21, 2010:

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative 90-minute documentary entitled Hillary: The Movie. This documentary covers Hillary Clinton's record while in the Senate & the White House. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")--a federal enactment designed to prevent "big money" from unfairly influencing federal elections--which, among other things, prohibits corporate financing of electioneering communications. The FEC [enforced the provision] of BCRA prohibiting corporations from broadcasting electioneering communications within 60 days of a general election. [The Supreme Court rules that this] violates the free speech clause of the First Amendment.

Justice Kennedy , Opinion of the Court (Roberts, Scalia, Alito, and Thomas concurring):

Some members of the public might consider "Hillary: The Movie" to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.

Justice Stevens (dissent joined by Ginsburg , Breyer, and Sotomayor)

Neither Citizens United's nor any other corporation's speech has been "banned." All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment [allows that] is, in my judgment, profoundly misguided. Although I concur in the Court's decision to sustain BCRA's disclosure provisions, I emphatically dissent from its principal holding.

Source: Supreme Court case 08_CU_FEC argued on Mar 24, 2009

Public campaign finance can't be based on opponent spending.

Justice Kennedy joined the Court's decision on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:

An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.

HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & Alito

Arizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.

DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and Sotomayor

The First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011

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Other Justices on Government Reform: Anthony Kennedy on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
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Anthony Kennedy
John Roberts
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