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Context of 'September 9, 2009: Supreme Court Hears Second Round of Arguments in ‘Citizens United,’ Verdict Same as Before'

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The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. [Federal Elections Commission, 3/1997; Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Casebriefs, 2012]
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. [New Yorker, 5/21/2012]
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” [National Public Radio, 2012] In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. [New York Times, 5/3/2010] In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” [Slate, 10/25/2011] In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” [New Yorker, 5/21/2012]

Entity Tags: Federal Election Campaign Act of 1972, Federal Election Commission, James Buckley, Jeffrey Toobin, US Supreme Court, Eugene McCarthy, Lewis Powell, Potter Stewart, Burt Neuborne, William Rehnquist, Warren Burger, Richard L. Hasen, William Brennan

Timeline Tags: Civil Liberties

The Supreme Court, in the case of First National Bank of Boston v. Bellotti, rules 5-4 that corporations have the First Amendment right to make contributions in order to influence political processes. Writing for the majority, Justice Lewis Powell finds that under the recent Buckley ruling (see January 30, 1976), corporate political donations are protected speech. Powell’s opinion finds that a Massachusetts criminal statute prohibiting corporations from spending money for the purpose of “influencing or affecting” voters’ opinions is not legitimate. The split among the justices is unusual, with Powell, a conservative, being joined by two more conservatives, Chief Justice Warren Burger and Potter Stewart, and liberals Harry Blackmun and John Paul Stevens. The four dissenters are liberals William Brennan and Thurgood Marshall, and conservatives Byron White and William Rehnquist. [FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012; Moneyocracy, 2/2012] Rehnquist’s standalone dissent advocates for far stricter controls on corporate spending in elections than most of the other justices’ dissents, with Rehnquist writing that such spending could “pose special dangers in the political sphere.” [Reclaim Democracy, 4/26/1978; FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012]

Entity Tags: Lewis Powell, Byron White, John Paul Stevens, William Rehnquist, Warren Burger, Harry Blackmun, William Brennan, US Supreme Court, Potter Stewart, Thurgood Marshall

Timeline Tags: Civil Liberties

The Supreme Court, in the case of Austin v. Michigan Chamber of Commerce, rules that the Michigan Chamber of Commerce (MCC) cannot run newspaper advertisements in support of a candidate for the state legislature because the MCC is subject to the Michigan Campaign Finance Act, which prohibits corporations from using treasury money to support or oppose candidates running for state offices. The Court finds that corporations can use money only from funds specifically designated for political purposes. The MCC holds a political fund separate from its other monies, but wanted to use money from its general fund to buy political advertising, and sued for the right to do so. The case explored whether a Michigan law prohibiting such political expenditures is constitutional. The Court agrees 7-2 that it is constitutional. Justices Antonin Scalia and Anthony Kennedy dissent, arguing that the government should not require such “segregated” funds, but should allow corporations and other such entities to spend their money on political activities without such restraints. [Public Resource (.org), 1990; Casebriefs, 2012; Moneyocracy, 2/2012] The 2010 Citizens United ruling (see January 21, 2010) will overturn this decision, with Scalia and Kennedy voting in the majority, and Kennedy writing the majority opinion.

Entity Tags: Michigan Chamber of Commerce, Anthony Kennedy, Michigan Campaign Finance Act, US Supreme Court, Antonin Scalia

Timeline Tags: Civil Liberties

After years of battling Republican filibuster efforts and other Congressional impediments, the Bipartisan Campaign Reform Act of 2002 is signed into law. Dubbed the “McCain-Feingold Act” after its two Senate sponsors, John McCain (R-AZ) and Russ Feingold (D-WI), when the law takes effect after the 2002 midterm elections, national political parties will no longer be allowed to raise so-called “soft money” (unregulated contributions) from wealthy donors. The legislation also raises “hard money” (federal money) limits, and tries, with limited success, to eliminate so-called “issue advertising,” where organizations not directly affiliated with a candidate run “issues ads” that promote or attack specific candidates. The act defines political advertising as “electioneering communication,” and prohibits advertising paid for by corporations or by an “unincorporated entity” funded by corporations or labor unions (with exceptions—see June 25, 2007). To a lesser extent, the BCRA also applies to state elections. In large part, it supplants the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980). [Federal Election Commission, 2002; Center for Responsive Politics, 2002 pdf file; Connecticut Network, 2006 pdf file]
Bush: Bill 'Far from Perfect' - Calling the bill “far from perfect,” President Bush signs it into law, taking credit for the bill’s restrictions on “soft money,” which the White House and Congressional Republicans had long opposed. Bush says: “This legislation is the culmination of more than six years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view. But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for federal campaigns, and therefore I have signed it into law.” [Center for Responsive Politics, 2002 pdf file; White House, 3/27/2002]
'Soft Money' Ban - The ban on so-called “soft money,” or “nonfederal contributions,” affects contributions given to political parties for purposes other than supporting specific candidates for federal office (“hard money”). In theory, soft money contributions can be used for purposes such as party building, voter outreach, and other activities. Corporations and labor unions are prohibited from giving money directly to candidates for federal office, but they can give soft money to parties. Via legal loopholes and other, sometimes questionable, methodologies, soft money contributions can be used for television ads in support of (or opposition to) a candidate, making the two kinds of monies almost indistinguishable. The BCRA bans soft money contributions to political parties. National parties are prohibited from soliciting, receiving, directing, transferring, and spending soft money. State and local parties can no longer spend soft money for any advertisements or other voter communications that identify a candidate for federal office and either promote or attack that candidate. Federal officeholders and candidates cannot solicit, receive, direct, transfer, or spend soft money in connection with any election. State officeholders and candidates cannot spend soft money on any sort of communication that identifies a candidate for federal office and either promotes or attacks that candidate. [Legal Information Institute, 12/2003; ThisNation, 2012]
Defining 'Issue Advertisements' or 'Electioneering Communications' - In a subject related to the soft money section, the BCRA addresses so-called “issue advertisements” sponsored by outside, third-party organizations and individuals—in other words, ads by people or organizations who are not candidates or campaign organizations. The BCRA defines an “issue ad,” or as the legislation calls it, “electioneering communication,” as one that is disseminated by cable, broadcast, or satellite; refers to a candidate for federal office; is disseminated in a particular time period before an election; and is targeted towards a relevant electorate with the exception of presidential or vice-presidential ads. The legislation anticipates that this definition might be overturned by a court, and provides the following “backup” definition: any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).
Corporation and Labor Union Restrictions - The BCRA prohibits corporations and labor unions from using monies from their general treasuries for political communications. If these organizations wish to participate in a political process, they can form a PAC and allocate specific funds to that group. PAC expenditures are not limited.
Nonprofit Corporations - The BCRA provides an exception to the above for “nonprofit corporations,” allowing them to fund electioneering activities and communications from their general treasuries. These nonprofits are subject to disclosure requirements, and may not receive donations from corporations or labor unions.
Disclosure and Coordination Restrictions - This part of the BCRA amends the sections of FECA that addresses disclosure and “coordinated expenditure” issues—the idea that “independent” organizations such as PACs could coordinate their electioneering communications with those of the campaign it supports. It includes the so-called “millionaire provisions” that allow candidates to raise funds through increased contribution limits if their opponent’s self-financed personal campaign contributions exceed a certain amount.
Broadcast Restrictions - The BCRA establishes requirements for television broadcasts. All political advertisements must identify their sponsor. It also modifies an earlier law requiring broadcast stations to sell airtime at its lowest prices. Broadcast licensees must collect and disclose records of purchases made for the purpose of political advertisements.
Increased Contribution Limits - The BCRA increases contribution limits. It also bans contributions from minors, with the idea that parents would use their children as unwitting and unlawful conduits to avoid contribution limits.
Lawsuits Challenge Constitutionality - The same day that Bush signs the law into effect, Senator Mitch McConnell (R-KY) and the National Rifle Association (NRA) file lawsuits challenging the constitutionality of the BCRA (see December 10, 2003). [Legal Information Institute, 12/2003]

Entity Tags: Russell D. Feingold, Mitch McConnell, John McCain, National Rifle Association, George W. Bush, Bipartisan Campaign Reform Act of 2002

Timeline Tags: Civil Liberties

The Supreme Court rules in the case of McConnell v. Federal Election Commission. The case addresses limitations on so-called “soft money,” or contributions to a political party not designated specifically for supporting a single candidate, that were imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA), often known as the McCain-Feingold law after its two Senate sponsors (see March 27, 2002). A three-judge panel has already struck down some of McCain-Feingold’s restrictions on soft-money donations, a ruling that was stayed until the Court could weigh in. Generally, the Court rules that the “soft money” ban does not exceed Congress’s authority to regulate elections, and does not violate the First Amendment’s free speech clause. The ruling is a 5-4 split, with the majority opinion written by liberal Justice John Paul Stevens and his conservative colleague Sandra Day O’Connor. The opinion finds that the “minimal” restrictions on free speech are outweighed by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and… the appearance of corruption” that might result from those contributions. “Money, like water, will always find an outlet,” the justices write, and the government must take steps to prevent corporate donors from finding ways to subvert the contribution limits. The majority is joined by liberal justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, and the four other conservatives on the court—Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas—dissent. [Legal Information Institute, 12/2003; Oyez (.org), 2011] The case represents the consolidation of 11 separate lawsuits brought by members of Congress, political parties, unions, and advocacy groups; it is named for Senator Mitch McConnell, who sued the FEC on March 27, 2002, the same day the bill was signed into law. Due to the legal controversy expected to be generated by the law and the need to settle it prior to the next federal election, a provision was included in the BCRA that provided for the case to be heard first by a special three-judge panel and then appealed directly to the Supreme Court. This District of Columbia district court panel, comprised of two district court judges and one circuit court judge, was inundated with numerous amicus briefs, almost 1,700 pages of related briefs, and over 100,000 pages of witness testimony. The panel upheld the BCRA’s near-absolute ban on the usage of soft money in federal elections, and the Supreme Court agrees with that finding. However, the Court reverses some of the BCRA’s limitations on the usage of soft money for “generic party activities” such as voter registration and voter identification. The district court overturned the BCRA’s primary definition of “noncandidate expenditures,” but upheld the “backup” definition as provided by the law. Both courts allow the restrictions on corporate and union donations to stand, as well as the exception for nonprofit corporations. The Court upholds much of the BCRA’s provisions on disclosure and coordinated expenditures. The lower court rejected the so-called “millionaire provisions,” a rejection the Supreme Court upholds. A provision banning contributions by minors was overturned by the lower court, and the Court concurs. The lower court found the provision requiring broadcasters to collect and disclose records of broadcast time purchased for political activities unconstitutional, but the Court disagrees and reinstates the requirement. [Legal Information Institute, 12/2003] McConnell had asked lawyer James Bopp Jr., a veteran of anti-campaign finance lawsuits and the head of McConnell’s James Madison Center for Free Speech, to take part in the legal efforts of the McConnell case. However, before the case appeared before the Supreme Court, McConnell dropped Bopp from the legal team due to a dispute over tactics. [New York Times, 1/25/2010] The 2010 Citizens United decision will partially overturn McConnell (see January 21, 2010).

Entity Tags: Federal Election Commission, David Souter, Bipartisan Campaign Reform Act of 2002, Antonin Scalia, Anthony Kennedy, William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, National Rifle Association, Mitch McConnell, John Paul Stevens, Ruth Bader Ginsburg, James Bopp, Jr, Clarence Thomas

Timeline Tags: Civil Liberties

The Supreme Court, ruling in the Wisconsin Right to Life v. Federal Election Commission case, finds that some political advertisements can be exempted from the “electioneering communications” provision of the McCain-Feingold campaign reform act (see March 27, 2002). The case stems from attempts by an anti-abortion advocacy group, Wisconsin Right to Life (WRTL), to run ads asking viewers to contact their senators and urge them to oppose filibusters of judicial nominees. WRTL tried to run its ads during the 30 and 60-day “blackout” periods before the upcoming 2004 elections, but because it accepted corporate contributions and was itself incorporated, the McCain-Feingold restrictions prevented the ads from running. WRTL argued that the ads were not targeting candidates, but were strictly issue-related (see Mid-2004 and After). The case was initially dismissed, but the Supreme Court reversed that decision and remanded the case back to the lower courts. The Federal Election Commission (FEC) argued that the ads were intended to influence US Senate elections in Wisconsin, and thusly should be regulated by McCain-Feingold. A district court disagreed, ruling against the FEC and finding that the ads were “protected speech” (see January 30, 1976), though it limited its findings solely to the WRTL ads and specified that its ruling was not to apply to other cases. The FEC appealed the case to the US Supreme Court, which in a 5-4 decision finds that the district court’s ruling is valid. Chief Justice John Roberts writes the majority opinion, which establishes broad exemptions for advertisements that could be “reasonably” interpreted as being about legislative issues and not directed on behalf of, or against, a particular candidate. As long as “issue ads” do not contain the “functional equivalent” of express advocacy for or against a candidate, the Roberts opinion holds, and the advertisements are legal. The ads involve “core political speech” that is protected by the First Amendment, Roberts finds: “We give the benefit of the doubt to speech, not censorship.” Justice David Souter writes the dissenting opinion. Justices Antonin Scalia and Clarence Thomas write a concurring opinion that joins them with Roberts and the other two conservative justices, but in their concurrence, they say they would overturn the McCain-Feingold law in its entirety. [Connecticut Network, 2006 pdf file; Los Angeles Times, 6/26/2007; FindLaw, 2011; National Public Radio, 2012; Oyez (.org), 7/1/2012] Roberts is careful in the language of his majority opinion, writing that “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” He does not directly advocate for the overturning of the McCain-Feingold law, but referring to the 2003 McConnell decision that upheld the law (see December 10, 2003), he writes, “We have no occasion to revisit that determination today.” In 2012, reporter Jeffrey Toobin will write of Roberts’s use of the word “today,” “To those who know the language of the Court, the Chief Justice was all but announcing that five justices would soon declare the McCain-Feingold law unconstitutional.” [New Yorker, 5/21/2012] Toobin is referring to the 2010 Citizens United decision that will overturn most of the law (see January 21, 2010).

Entity Tags: John G. Roberts, Jr, Clarence Thomas, David Souter, Antonin Scalia, Federal Election Commission, Wisconsin Right to Life, US Supreme Court, Jeffrey Toobin

Timeline Tags: Civil Liberties

A poster promoting ‘Hillary: The Movie.’A poster promoting ‘Hillary: The Movie.’ [Source: New York Times]The conservative lobbying group Citizens United (CU—see May 1998 and (May 11, 2004)) releases a film entitled Hillary: The Movie. The film is a lengthy diatribe attacking the character and career of Senator Hillary Clinton (D-NY), a leading candidate for the Democratic presidential nomination. Large portions of the film are comprised of conservative critics launching attacks against the personalities and character of Clinton and her husband, former President Clinton. CU president David Bossie (see May 1998) says he based his film on a documentary, Fahrenheit 9/11, released in 2004 by liberal filmmaker Michael Moore (see August 6, 2004), and calls it “a rigorously researched critical biography” comparable to the material presented on political talk shows such as Meet the Press. [Washington Post, 3/15/2009; Moneyocracy, 2/2012] Bossie intended for the film to be released in late 2007 and impact the 2008 race in the same way that he believes Fahrenheit 9/11 impacted the 2004 race. A cable company made the film, at a cost of $1.2 million, available for free to viewers on “video on demand.” Bossie also scheduled a small theater run for the film, but his primary focus was always cable television and the accompanying television advertisements. Knowing the film will probably run afoul of campaign law, he hired lawyers, first James Bopp Jr. (a former member of the far-right Young Americans for Freedom—YAF—and the former general counsel for the National Right to Life Committee—see November 1980 and After) [New Yorker, 5/21/2012] and later Theodore B. Olson, the former solicitor general under the Bush administration. Olson will later say the film is “a critical biographical assessment” that provides “historical information about the candidate and, perhaps, some measure of entertainment as well.” The New York Times calls it “a scathingly hostile look at Mrs. Clinton” replete with “ripe voice-overs, shadowy re-enactments, and spooky mood music.” The film also contains interviews and material from mainstream media reporters, and interviews with figures such as former CIA agent Gary Aldrich, who wrote a “tell-all” book about the Clinton administration, and with Kathleen Willey, who has claimed that Bill Clinton once made an unwelcome sexual advance towards her. Reviewer Megan Carpentier of Radar Online will trounce the movie, saying that it “scrolls through more than a decade of press clippings and a treasure trove of unflattering pictures in its one-sided romp” and will advise potential viewers to watch it “while inebriated in the manner of your choosing, and only if you don’t pay $10 for the privilege.” [New York Times, 3/5/2009] Bossie claims the movie has nothing to do with the impending primary elections. CU intends to show the movie in a small number of theaters but primarily on “video on demand” cable broadcasts, with accompanying television advertisements. In return for a $1.2 million fee, a cable television consortium has agreed to make the movie freely available to its customers as part of what CU calls its “Election ‘08” series. (CU has another negative documentary on Clinton’s Democratic challenger Barack Obama in the works—see October 28-30, 2008—but apparently has no plans to air any documentaries on Republican candidate John McCain or any other Republican presidential candidates.) However, the Federal Election Commission (FEC) refuses to allow the film to be aired on cable channels, or advertised for theater release, because the FEC considers the film “electioneering” and thus subject to campaign finance law (see March 27, 2002) restrictions. Moreover, the film and its planned distribution are funded by corporate donations. [United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012] Bossie claims the film takes no position on Clinton’s candidacy, and says that if he had to vote between Hillary Clinton and Barack Obama, he would vote for Clinton. [New York Times, 3/5/2009]
Court Fight - Bopp, CU’s original lawyer, decides to pursue the same general aggressive course that he took in a recent successful Supreme Court campaign finance case, the Wisconsin Right to Life (WRTL) decision (see Mid-2004 and After). The Hillary film was envisioned from the outset to serve multiple purposes: to advance conservative ideology, damage Clinton’s presidential chances (despite Bossie’s claims), and generate profits. Bopp knows that the FEC would likely classify the film as a political advertisement and not a work of journalism or entertainment (see August 6, 2004), and therefore would fall under campaign law restrictions. Before the film is officially released, Bopp takes the film to the FEC for a ruling, and when the FEC, as expected, rules the film to be “electioneering communication” that comes under campaign law restrictions, Bopp files a lawsuit with the Washington, DC, federal district court. The court rules in favor of the FEC judgment, denying CU its request for a preliminary injunction against the FEC’s ruling. The court specifically finds that the WRTL decision does not apply in this case. “[I]f the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat,” the court states. The court also questions CU’s statement that the film “does not focus on legislative issues.… The movie references the election and Senator Clinton’s candidacy, and it takes a position on her character, qualifications, and fitness for office.” Film commentator Dick Morris has said of the film that it will “give people the flavor and an understanding of why she should not be president.” The court rules, “The movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” (During arguments, Bopp says that the film is much like what a viewer would see on CBS’s evening news show 60 Minutes, and Judge Royce Lamberth laughs aloud, saying: “You can’t compare this to 60 Minutes. Did you read this transcript?” Other judges find it problematic that one of the film’s central “issues” is its assertion that Clinton is, in Bopp’s words, “a European socialist,” but still claims not to be overtly partisan.) [Mother Jones, 1/13/2008; United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Supreme Court Appeal - CU appeals the court’s decision directly to the Supreme Court. Bossie soon decides to replace Bopp with Olson, a far more prominent figure in conservative legal circles. Toobin will write: “Ted Olson had argued and won Bush v. Gore (see 9:54 p.m. December 12, 2000), and was rewarded by President Bush with an appointment as solicitor general. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the justices. He knew how to win.” [Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Previous Attempt - In September 2004, Bossie and CU attempted, without success, to release a similar “documentary” supporting President Bush and attacking Democratic presidential candidate John Kerry (D-MA) on television, just weeks before the presidential election. The FEC turned down the group’s request. The FEC did allow the film to be shown in theaters (see September 8, 2004 and September 27-30, 2004).
'Ten-Year Plan' - Bopp will later reveal that the lawsuit is part of what he will call a “10-year plan” to push the boundaries of campaign finance law, and that he urged Bossie and other CU officials to use the documentary as a “test case” for overturning the body of law (see January 25, 2010).

Entity Tags: William Jefferson (“Bill”) Clinton, Kathleen Willey, Megan Carpentier, Theodore (“Ted”) Olson, New York Times, Michael Moore, John McCain, Royce Lamberth, James Bopp, Jr, Dick Morris, Gary Aldrich, Barack Obama, Bush administration (43), Hillary Clinton, Citizens United, David Bossie, Federal Election Commission, Clinton administration

Timeline Tags: Civil Liberties, 2008 Elections

The Supreme Court dismisses an appeal by the political advocacy group Citizens United (CU) that argued the group’s First Amendment rights had been violated by the Federal Election Commission (FEC). The Court had agreed to hear CU’s case that it should be allowed to broadcast a partisan political documentary about Democratic presidential candidate Hillary Clinton, Hillary: The Movie, on cable television networks in the days before critical primary elections (see January 10-16, 2008). The Court did not rule on the merits of the case, but instead ruled that CU should have filed its case first with the federal appeals court in Washington. The ruling does not dismiss the case entirely, but makes it unlikely that the Court will rule on the campaign law issues surrounding the case (see March 27, 2002) before the November 2008 elections. Lawyer James Bopp, representing CU, says, “It is our intention to get the case expeditiously resolved on the merits in the district court, and then if we are unsuccessful there, to appeal” again to the Court. Bopp accuses Justice Department lawyers of trying to slow down the case to prevent it being resolved before the election. CU also wants to release a similar documentary about the other leading Democratic presidential contender, Barack Obama (D-IL—see October 28-30, 2008), in a similar fashion to its planned widespread release of the Clinton film. Justice Stephen Breyer, one of the Court’s more liberal members, says in the order dismissing the appeal that had the case been taken up, he would have affirmed the previous decision in favor of the FEC. None of the other justices made any public statement about the case. The case will be heard by the Washington, DC, federal appeals court. [Christian Science Monitor, 3/24/2008] The appeals court will find against CU, and the organization will reapply to the Court for a hearing, an application which will be granted (see March 15, 2009).

Entity Tags: James Bopp, Jr, Barack Obama, Citizens United, Federal Election Commission, Hillary Clinton, US Department of Justice, US Supreme Court, Stephen Breyer

Timeline Tags: Civil Liberties

The Supreme Court finds in the case of Davis v. Federal Election Commission that part of the McCain-Feingold campaign finance reform act (see March 27, 2002) is unconstitutional. Jack Davis (D-NY), a millionaire who has run repeatedly and unsuccessfully as a candidate of both parties to represent New York’s 26th District in the US House of Representatives, has complained in a lawsuit that the so-called “millionaire’s amendment” is unconstitutional. Davis wants to be able to pour his money into the race without his opponents being able to spend more money to counter his donations, as the law enables them to do. The lower courts found against Davis, and under McCain-Feingold the case was expedited directly to the Supreme Court. The Court finds 5-4 in favor of Davis, ruling that the contribution limits unduly restrict Davis’s freedom of speech. Justice Samuel Alito writes the majority opinion, joined by his fellow Court conservatives. Justice John Paul Stevens writes the dissent for the four Court liberals, though Stevens and the others do agree with some aspects of Alito’s majority opinion. Alito’s decision flows directly from an earlier Court precedent (see January 30, 1976). [Oyez (.org), 2011; Moneyocracy, 2/2012]

Entity Tags: John (“Jack”) Davis, Federal Election Commission, Samuel Alito, US Supreme Court, John Paul Stevens

Timeline Tags: Civil Liberties

The US Supreme Court hears the case of Citizens United v. Federal Election Commission, in which the Federal Election Commission (FEC) refused to let the conservative lobbying organization Citizens United (CU) air a film entitled Hillary: The Movie during the 2008 presidential primary season (see January 10-16, 2008). The FEC ruled that H:TM, as some have shortened the name, was not a film, but a 90-minute campaign ad with no other purpose than to smear and attack Senator Hillary Clinton (D-NY) as being unfit to hold office. A panel of appeals judges agreed with the FEC’s ruling, which found the film was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” As a campaign ad, the film’s airing on national network television came under campaign finance laws, particularly since the film was financed by corporate political donations. CU was allowed to air the film in theaters and sell it in DVD and other formats, but CU wanted to pay $1.2 million to have the movie aired on broadcast cable channels and video-on-demand (pay per view) services, and to advertise its broadcast. CU president David Bossie (see May 1998) hired former Bush Solicitor General Theodore Olson after the Supreme Court agreed to hear the case. Bossie denies that he chose Olson because of their shared loathing of the Clintons—they worked together to foment the “Arkansas Project,” a Clinton smear effort that resulted in Congress unsuccessfully impeaching President Clinton—but because Olson gave “us the best chance to win.” Bossie dedicated the Clinton film to Barbara Olson, Olson’s late wife, who died in the 9/11 attacks (see (9:20 a.m.) September 11, 2001). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] “I just don’t see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns,” Bossie told reporters last year. [Christian Science Monitor, 2/1/2008]
Uphold or Cut Back McCain-Feingold? - Observers, unaware of the behind-the-scenes machinations, believe the case gives the Court the opportunity to either uphold or cut back the body of law stemming from the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) campaign finance law (see March 27, 2002), which limits the ability of corporations and labor unions to spend unlimited amounts of money on political advertising before elections. CU is arguing that the BCRA is unconstitutional, having argued before a previous court that the the BCRA law was unconstitutional in the way it was being enforced by the FEC against its film. In its brief to the Court, CU denies the film is any sort of “electioneering,” claiming: “Citizens United’s documentary engages in precisely the political debate the First Amendment was written to protect… The government’s position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions—or articulate facts—pertinent to a presidential candidate’s fitness for office.” The Justice Department, siding with the FEC, calls the film an “unmistakable” political appeal, stating, “Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States.” The film is closer to a political “infomercial” than a legitimate documentary, the Justice Department argues. The film’s “unmistakable message is that Senator Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States,” according to a Justice Department lawyer, Edwin Kneedler, who filed a brief on behalf of the FEC. The Justice Department wants the Court to uphold FEC disclosure requirements triggered by promotional ads, while Olson and CU want the Court to strike down the requirements. Olson says financial backers of films such as H:TM may be reluctant to back a film if their support becomes publicly known. Kneedler, however, writes that such disclosure is in the public interest. The Reporters Committee for Freedom of the Press (RCFP) is joining CU in its court fight, stating in a brief, “By criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.” Scott Nelson of the Public Citizen Litigation Group, which supports the BCRA, disagrees with RCFP’s stance, saying, “The idea that [the law] threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch.” [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] The RCFP has said that the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” And a lawyer with the RCFP, Gregg P. Leslie, asked, “Who is the FEC to decide what is news and what kind of format news is properly presented in?” [New York Times, 3/5/2009]
Filled with False Information - The movie was relentlessly panned by critics, who found much of its “information” either misrepresentative of Clinton or outright false. CU made several other films along with the Clinton documentary, which included attacks on filmmaker Michael Moore, the American Civil Liberties Union, illegal immigrants, and Clinton’s fellow presidential contender Barack Obama (D-IL—see October 28-30, 2008). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009]
Arguments Presented - Olson and his opponent, Deputy Solicitor General Malcolm Stewart, present arguments in the case to the assembled Court. Traditionally, lawyers with the Solicitor General (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. New Yorker reporter Jeffrey Toobin later writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who clerked for former Justice Harry Blackmun and is a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. Justice Samuel Alito, a conservative justice with a penchant for asking tough questions that often hide their true intentions behind carefully neutral wording, is interested in seeing how far he can push Stewart’s argument. Does the BCRA apply only to television commercials, he asks, or might it regulate other means of communication during a federal campaign? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?” Stewart says that the BCRA indeed imposes such restrictions, stating, “Those could have been applied to additional media as well.” Could the government regulate the content of a book? Alito asks. “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart, who tardily realizes where Alito was going, attempts to recover. “I’m not saying it could be banned,” he responds. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” Justice Anthony Kennedy, considered a “swing” justice in some areas but a reliable conservative vote in campaign-spending cases, interrupts Stewart. “Well, suppose it were an advocacy organization that had a book,” Kennedy says. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?” Stewart gives what Toobin later calls “a reluctant, qualified yes.” At this point, Roberts speaks up. According to Toobin, Roberts intends to paint Stewart into something of a corner. “If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asks. Stewart responds, “That’s correct.” Roberts then asks, “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Stewart responds, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980) provisions.” Toobin later writes that with their “artful questioning, Alito, Kennedy, and Roberts ha[ve] turned a fairly obscure case about campaign-finance reform into a battle over government censorship.” Unwittingly, Stewart has argued that the government has the right to censor books because of a single line. Toobin later writes that Stewart is incorrect, that the government could not ban or censor books because of McCain-Feingold. The law applies to television advertisements, and stems from, as Toobin will write, “the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Legal scholars and pundits will later argue about Stewart’s answers to the three justices’ questions, but, as Toobin will later write, “the damage to the government’s case had been profound.” [New Yorker, 5/21/2012]
Behind the Scenes - Unbeknownst to the lawyers and the media, the Court initially renders a 5-4 verdict in favor of CU, and strikes down decades of campaign finance law, before withdrawing its verdict and agreeing to hear rearguments in the fall (see June 29, 2009). Toobin will write that the entire case is orchestrated behind the scenes, by Roberts and his fellow majority conservatives. Toobin will write of “a lengthy and bitter behind-the-scenes struggle among the justices that produced both secret unpublished opinions and a rare reargument of a case” that “reflects the aggressive conservative judicial activism of the Roberts Court.” Toobin will write that although the five conservatives are involved in broadening the scope of the case, and Kennedy actually writes the majority decision, “the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.” The initial vote on the case is 5-4, with the five conservative justices—Alito, Kennedy, Roberts, Scalia, and Clarence Thomas—taking the majority.
Expansive Concurrence Becomes the Majority Opinion - At the outset, the case is decided on the basis of Olson’s narrow arguments, regarding the issue of a documentary being made available on demand by a nonprofit organization (CU). Roberts takes the majority opinion onto himself. The four liberals in the minority are confident Roberts’s opinion would be as narrow as Olson’s arguments. Roberts’s draft opinion is indeed that narrow. Kennedy writes a concurrence opining that the Court should go further and overturn McCain-Feingold, the 1990 Austin decision (see March 27, 1990), and end the ban on corporate donations to campaigns (see 1907). When the draft opinions circulates, the other three conservatives begin rallying towards Kennedy’s more expansive concurrence. Roberts then withdraws his draft and lets Kennedy write the majority opinion in line with his concurrence. Toobin later writes: “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term.” During arguments in a different case, Roberts had “berated at length” a lawyer “for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
Dissent - The senior Justice in the minority, John Paul Stevens, initially assigns the main dissent to Justice David Souter. Souter, who is in the process of retiring from the Court, writes a stinging dissent that documents some of the behind-the-scenes machinations in the case, including an accusation that Roberts violated the Court’s procedures to get the outcome he wanted. Toobin will call Souter’s planned dissent “an extraordinary, bridge-burning farewell to the Court” that Roberts feels “could damage the Court’s credibility.” Roberts offers a compromise: Souter will withdraw his dissent if the Court schedules a reargument of the case in the fall of 2009 (see June 29, 2009). The second argument would feature different “Questions Presented,” and the stakes of the case would be far clearer. The four minority justices find themselves in something of a conundrum. They feel that to offer the Kennedy opinion as it stands would be to “sandbag” them and the entire case, while a reargument would at least present the issues that the opinion was written to reflect. And there is already a 5-4 majority in favor of Kennedy’s expansive opinion. The liberals, with little hope of actually winning the case, agree to the reargument. The June 29, 2009 announcement will inform the parties that the Court is considering overturning two key decisions regarding campaign finance restrictions, including a decision rendered by the Roberts court (see March 27, 1990 and December 10, 2003) and allow essentially unlimited corporate spending in federal elections. Court observers will understand that the Court is not in the habit of publicly asking whether a previous Court decision should be overruled unless a majority is already prepared to do just that. Toobin will call Roberts and his four colleagues “impatient” to make the decision, in part because an early decision would allow the ruling to impact the 2010 midterm elections. [New Yorker, 5/21/2012]
Created to Give Courts Shot at McCain-Feingold - Critics, as yet unaware of the behind-the-scenes maneuvering, will later say that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign will say: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” Bossie himself will later confirm that contention, saying: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010] CU’s original lawyer on the case, James Bopp, will later verify that the case was brought specifically to give the Court a chance to cut back or overturn campaign finance law (see January 25, 2010). The Court will indeed overturn McCain-Feingold in the CU decision (see January 21, 2010).

Entity Tags: Clarence Thomas, US Department of Justice, Theodore (“Ted”) Olson, Scott Nelson, US Supreme Court, Bipartisan Campaign Reform Act of 2002, Citizens United, Barbara Olson, American Civil Liberties Union, Anthony Kennedy, Barack Obama, Samuel Alito, Reporters Committee for Freedom of the Press, William Jefferson (“Bill”) Clinton, Michael Moore, Hillary Clinton, Gregg P. Leslie, Nick Nyhart, Edwin Kneedler, David Souter, Federal Election Commission, James Bopp, Jr, John Paul Stevens, David Bossie, John G. Roberts, Jr, Jeffrey Toobin, Malcolm Stewart

Timeline Tags: Civil Liberties

The US Supreme Court says it will schedule a hearing on the controversial “Citizens United” case, Citizens United v. Federal Election Commission (see March 15, 2009), for September 2009, in an unusual second presentation before the Court (see September 9, 2009). According to the justices, the lawyers for both Citizens United (CU) and the federal government should argue whether previous Court rulings upholding federal election law should be overturned based on First Amendment grounds. Both sides are asked to argue whether the Court should overrule the 1990 Austin decision (see March 27, 1990), which upheld restrictions on corporate spending on political campaigns, and/or the 2003 McConnell decision (see December 10, 2003), which upheld the bulk of the 2002 Bipartisan Campaign Reform Act (BCRA—see March 27, 2002). Law professor Nathaniel Persily says of the directive: “The Court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics. The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.” The New York Times observes, “The Roberts court [referring to the Supreme Court under Chief Justice John Roberts] has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more.” Previous lower court rulings have found that CU’s attempt to air a film attacking presidential candidate Hillary Clinton (D-NY) was an attempt to engage in “electioneering,” and thus came under the restrictions of the McCain-Feingold campaign law (see March 27, 2002). The film was financed in part by donations from corporations and individuals whom CU has refused to identify. [United Press International, 6/29/2009; New York Times, 6/29/2009] CU previously attempted to have its case heard by the Court, but the Court sent the case back to a federal appeals court, which ruled in favor of the Federal Election Commission (FEC) and against CU (see March 24, 2008). Law professor Richard Hasen agrees with Persily and the Times that the decision to reargue the case a second time indicates that the Court’s conservative majority is prepared to overturn both Austin and McConnell, and allow essentially unlimited corporate spending in federal elections. Hasen writes that if the Court does indeed rule in favor of unlimited corporate spending, it will be in response to the fundraising advantage currently enjoyed by Democratic presidential candidate Barack Obama (D-IL) over his Republican counterpart, John McCain (R-AZ). [Slate, 6/29/2009] The decision will indeed overturn both Austin and McConnell, and gut most of the BCRA (see January 21, 2010).

Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Barack Obama, Federal Election Commission, US Supreme Court, New York Times, John G. Roberts, Jr, Richard L. Hasen, Nathaniel Persily, John McCain, Citizens United

Timeline Tags: Civil Liberties

The second round of arguments in the Citizens United v. Federal Election Commission case (see January 10-16, 2008, March 24, 2008, March 15, 2009, and June 29, 2009) is heard by the US Supreme Court. The first round of arguments, which unexpectedly focused on an unplanned examination of government censorship, ended in a 5-4 split, with the majority of conservative justices readying a decision to essentially gut the entire body of federal campaign finance law in the name of the First Amendment (see March 27, 1990, March 27, 2002, and December 10, 2003), but an angry dissent by Justice David Souter that accused Chief Justice John Roberts of failing to follow the procedures of the Court in rendering the opinion prompted Roberts to temporarily withdraw the opinion and offer a rare second argument (see May 14, 2012). Newly appointed Solicitor General Elena Kagan argues her first case before the Court. Citizens United, the plaintiff, is represented by former Bush administration Solicitor General Theodore Olson. Olson, a veteran of Court arguments, quickly discerns from the new round of “Questions Presented” that the Court is prepared to not only find in the plaintiff’s favor, but to use the case to render a broad verdict against campaign finance law as a whole. Olson argues cautiously, not wanting to extend the case farther than the Court may desire. The four minority liberal justices, knowing the case is lost, try their best in their questioning to raise awareness in the public once news reports of the arguments are made public. One of those justices, Ruth Bader Ginsburg, asks: “Mr. Olson, are you taking the position that there is no difference” between the First Amendment rights of a corporation and those of an individual? “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?” Olson replies, “What the Court has said in the First Amendment context… over and over again is that corporations are persons entitled to protection under the First Amendment” (see January 30, 1976, April 26, 1978, June 25, 2007, and June 26, 2008). Ginsburg follows up by asking, “Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” Olson replies, “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.” Kagan then takes her turn, and begins: “Mr. Chief Justice, and may it please the Court, I have three very quick points to make about the government position. The first is that this issue has a long history. For over a hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.” She begins to make her second point before Justice Antonin Scalia, one of the conservative majority, interrupts her. In 2012, author and reporter Jeffrey Toobin will write that Kagan almost certainly knows hers is a legal “suicide mission,” and can only hope that her arguments may sway the Court to narrow its decision and leave some of the existing body of campaign finance law intact. She tells Roberts later in the questioning period, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Justice John Paul Stevens, the most senior of the liberal minority, attempts to assist Kagan in making her argument, suggesting that the Court should content itself with a narrow ruling, perhaps creating an exception in the McCain-Feingold law (see March 27, 2002) for the plaintiff’s documentary (see January 10-16, 2008) or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Kagan agrees with Stevens’s proposal. Stevens then says: “Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic. Why is that not the wisest narrow solution of the problem before us?” Kagan, with help from Ginsburg, undoes some of the damage done by Deputy Solicitor General Malcolm Stewart during the first argument, where he inadvertently gave the conservative justices the “censorship” argument by which they could justify a broader verdict. Ginsburg asks: “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?” Kagan replies: “The government’s answer has changed, Justice Ginsburg. We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Unlike Stewart, Kagan specifically says that the government cannot ban books. But the censorship argument remains. After the arguments, the justices render the same verdict: a 5-4 split favoring Citizens United. Roberts, Scalia, and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas vote in the majority, while Ginsburg, Stevens, and Justices Stephen Breyer and Sonia Sotomayor vote in the minority. The second round of questioning, with its much broader scope, gives Roberts and his conservative colleagues the justification they need to render a broad verdict that would gut existing campaign finance law (see January 21, 2010). [New Yorker, 5/21/2012]

Entity Tags: Elena Kagan, US Supreme Court, Citizens United, Antonin Scalia, Anthony Kennedy, Theodore (“Ted”) Olson, David Souter, Stephen Breyer, Samuel Alito, John G. Roberts, Jr, Jeffrey Toobin, Federal Election Commission, Sonia Sotomayor, John Paul Stevens, Ruth Bader Ginsburg, Malcolm Stewart, Clarence Thomas

Timeline Tags: Civil Liberties

Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy.Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]

Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times

Timeline Tags: Civil Liberties

The retired director of the ACLU, Ira Glasser, writes a detailed editorial in support of the recent Citizens United ruling that opened the way for corporations and labor unions to spend unlimited money in campaign activities (see January 21, 2010). The ACLU supported the case throughout its progression (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009), and filed briefs in support of the plaintiff, the conservative advocacy group Citizens United. Glasser says that the “screaming dismay” that “most liberals” evinced on hearing of the decision was unwarranted. Corporations are still banned from directly contributing to political campaigns, and President Obama’s assertion that the decision “reversed a century of law” is incorrect; the 1907 Tillman Act that banned corporations from contributing to campaigns or candidates is still in effect (see 1907). Instead, Glasser writes, the decision is “a huge victory… for freedom of speech and against government censorship” (see January 21, 2010, January 22, 2010, and February 2, 2010). Corporations, he writes, have the same right to speech as individuals, and they exercise that speech by spending money promoting issues and candidates, or criticizing those issues and candidates. He cites two instances in which the ACLU was stopped by the Federal Election Commission (FEC) from engaging in “political free speech,” one in 1972 when the FEC stopped the ACLU from taking out an ad in the New York Times criticizing President Nixon’s opposition to school busing to implement integration, and in 1984, when the FEC barred the ACLU from making public statements critical of President Reagan. Both instances took place inside the “window” of time before an election (30 days before a primary, 60 days before a general election) in which such utterances were considered supporting a candidate. Nonprofit groups such as Citizens United have been victimized for decades by campaign finance restrictions, Glasser writes. Later in the article, he derides the idea that restricting or controlling speech creates equality between rich and poor in elections, curbing the propensity for the rich to wield more influence and be heard more broadly than less wealthy citizens or organizations. “Money isn’t speech, but how much money one has always determines how much speech one has,” Glasser writes. “Most if not all of you reading this have never had as much speech as, say, the New York Times or George Soros or Nelson Rockefeller or George Bush or, as we recently discovered in my city, Mayor [Michael] Bloomberg. The inequities of speech that flow from the inequities of wealth are certainly a big and distorting problem for a democracy, and have always been so, and not just during elections. No one knows how to remedy that, short of fundamental re-distributions of wealth. But I’ll tell you what isn’t a remedy: granting the government the power to decide who should speak, and how much speech is enough. Nothing but disaster flows from that approach, and that was what was at stake in this case.” He concludes by advocating public financing of elections entirely, writing: “Liberals and Democrats have been the chief offenders… favoring equity in the abstract but never seeing how the particular reforms they advocated made the problems they wished to remedy worse, and never seeing that giving the government the authority to regulate speech was not a good thing. Maybe now this result, which has steamed up liberals and Democrats, may at last shift their attention to the kind of public financing that equitably provides money for more speech instead of pretending to create equity by granting the government the authority to restrict speech. We shall see.” [Huffington Post, 2/3/2010]

Entity Tags: Citizens United, American Civil Liberties Union, Federal Election Commission, Barack Obama, Tillman Act, Ira Glasser

Timeline Tags: Civil Liberties

The Web site of conservative pundit and activist Andrew Breitbart misquotes Solicitor General Elena Kagan to give the appearance that she condones book banning. The story comes from a video produced by Naked Emperor News and promoted by Breitbart TV, featuring edited audio recordings of Kagan’s oral arguments before the Supreme Court in the Citizens United decision (see September 9, 2009 and January 21, 2010). [Media Matters, 6/29/2010] Breitbart TV headlines its story: “Kagan’s own words: It’s fine if the law bans books because government won’t really enforce it.” [Breitbart TV, 6/28/2010] The story is immediately picked up by the conservative Drudge Report, which uses a nearly identical headline and links to the Breitbart site. [Media Matters, 6/29/2010] The influential conservative blog Gateway Pundit posts the story, again with an almost-identical headline, and includes the comment, “Spoken like a true leftist radical…” [Jim Hoft, 6/28/2010] (Both Breitbart TV and Gateway Pundit will later delete their posts.) Fox Nation, the blog for Fox News, also posts the story with the headline: “Kagan: It’s Fine If the Law Bans Books.” [Fox Nation, 6/29/2010] However, the video and audio have been edited to have Kagan claiming something she never said. During her argument before the Court, she actually argued that federal law had never banned books and probably could not do so. She never uttered the words, “It’s fine if the law bans books.” She said that if the government did try to ban books under campaign finance laws, “there would be quite good as-applied challenge” to the law, meaning that if a corporation did publish a book that advocated for or against a candidate during an election season, it would have a strong case against any potential banning by the government. Kagan later said: “[W]hat we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested—nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.” [Media Matters, 6/29/2010] Naked Emperor News, which produced the video, is a small organization run by conservative activist Pam Key and promoted by the Breitbart Web network. [Media Matters, 9/2/2010]

Entity Tags: Pam Key, Fox Nation, Gateway Pundit (.com), Elena Kagan, Andrew Breitbart, Drudge Report, Naked Emperor News, Breitbart TV

Timeline Tags: Civil Liberties

New York Times legal correspondent Adam Liptak observes what he calls a large weakness in the position that the Supreme Court should not have granted First Amendment rights to corporations in its 2010 Citizens United decision (see January 21, 2010). Liptak notes that Justice Anthony Kennedy cited more than 20 precedents affirming his argument that corporations are people under the First Amendment’s free-speech provision, and Justice John Paul Stevens recognized that body of precedents in his dissent. Liptak notes that regardless of the precedent, the provision still can be wrong. But, he notes, the weakness in the argument centers around the status of the news media as an amalgamation of “corporate persons,” writing, “If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?” There is a general acceptance that “the press is different,” he notes, writing: “The First Amendment, after all, protects ‘the freedom of speech, or of the press.’ Since ‘the press’ is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.” Liptak calls this a weak argument. There is little evidence to show that the Founders intended “to single out a set of businesses for special protection” under the First Amendment, nor is there a lot of support for the Court’s current stance that the institutional press has rights that other speakers, specifically corporations, do not have. Moreover, he asks, who exactly is the press? Is it a corporate media firm or a person with a Twitter account? In initial arguments in the Citizens United case (see June 29, 2009), government lawyer Malcolm L. Stewart argued that Congress has the power to regulate “corporate speech” about political candidates, even going so far as to prohibit the publication of a book in the weeks before an election, an argument that did not sit well with most of the justices. (Liptak notes that in the second set of arguments, “[t]he government backed away from that position at the second argument, but not very far—see September 9, 2009). Stewart could have gone further in claiming “that media corporations, the institutional press, would have a greater First Amendment right,” as he said in his first argument, though he did not use that as his primary argument. Stevens seemed supportive of that argument in his dissent. Justice Antonin Scalia, in his concurrence, did not, writing: “It is passing strange to interpret the phrase ‘the freedom of speech, or of the press’ to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant.” Former Times columnist and Court reporter Anthony Lewis reached a similar conclusion in 2008, writing, “The amendment surely meant to cover both oral and written expression [rather than] a specially protected institution.” In the majority opinion, Kennedy wrote, “There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.” Law professor Eugene Volokh agreed, writing, “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.” Law professor Richard Hasen acknowledges that the correct treatment of media corporations in the issue of free speech and campaign finance is “among the most difficult questions for supporters of reasonable campaign finance reform.” Liptak concludes: “There are good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.” [New York Times, 2/7/2011]

Entity Tags: John Paul Stevens, Anthony Kennedy, Adam Liptak, Anthony Lewis, Eugene Volokh, Malcolm Stewart, US Supreme Court, Antonin Scalia, New York Times, Richard L. Hasen

Timeline Tags: Civil Liberties

Jeffrey Toobin in 2007.Jeffrey Toobin in 2007. [Source: Wikimedia]Author and political pundit, Jeffrey Toobin, publishes an in-depth article for the New Yorker showing that Chief Justice John Roberts engineered the 2010 Citizens United Supreme Court decision (see January 21, 2010), moving it from a case that could well have been considered and decided on a relatively narrow basis to a sweeping decision that reformed the nation’s campaign finance structure. Toobin writes that the underlying issue was quite narrow: the conservative advocacy organization Citizens United (CU) wanted to run a documentary attacking presidential candidate Hillary Clinton (D-NY) on “video on demand” cable broadcast (see January 10-16, 2008). Under the McCain-Feingold campaign finance legislation (see March 27, 2002 and December 10, 2003), the Federal Election Commission (FEC) disallowed the broadcast because it would come 30 days or less before primary elections. CU challenged the decision in court (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). [New Yorker, 5/21/2012] Toobin’s article is an excerpt from his forthcoming book The Oath: The Obama White House vs. The Supreme Court. It is dated May 21, but appears on the New Yorker’s Web site on May 14. [Tom Goldstein, 5/14/2012]
Oral Arguments - During the initial arguments (see March 15, 2009), attorney Theodore Olson, the former solicitor general for the Bush administration, argued a narrow case: that McCain-Feingold’s prohibitions only applied to television commercials, not to full-length documentary films. Olson argued, “This sort of communication was not something that Congress intended to prohibit.” Toobin writes: “Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.… If the justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.” However, Justice Antonin Scalia, one of the most vocal opponents of campaign finance restrictions on the Court (see September 26, 1986, December 15, 1986, March 27, 1990, June 26, 1996, June 16, 2003, December 10, 2003, and June 25, 2007), seemed disappointed in the limited nature of Olson’s argument, Toobin writes. The oral arguments expand the case far beyond Olson’s initial position. Olson’s initial intention was to narrow the case so that the Court would not have to expand its scope to find in favor of CU.
Change of Scope - Ironically, the government’s lead lawyer, Deputy Solicitor General Malcolm Stewart, may well have changed the scope of the case in favor of a broader interpretation. Traditionally, lawyers with the solicitor general (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. Toobin writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who had clerked for former Justice Harry Blackmun and a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. But, Toobin writes, Stewart fell into a trap, prompted by Justice Samuel Alito’s pointed questioning about the government’s ability to ban or censor printed materials—i.e. books—under McCain-Feingold—and follow-up questions by Roberts and Justice Anthony Kennedy, that led him to claim incorrectly that the government could indeed censor books under the law. Stewart’s incorrect assertion gave Roberts and his colleagues the chance to overturn McCain-Feingold on the grounds of the First Amendment right to freedom of speech.
Second Arguments - The second arguments were held on September 9, 2009 (see September 9, 2009). The concept of “money equals speech” goes back at least as far as the 1976 Buckley decision (see January 30, 1976), and the five conservative justices were poised to stretch that definition much farther than has previously been done.
Majority Opinion - Toobin writes that Roberts’s decision was then to decide “how much he wanted to help the Republican Party. Roberts’s choice was: a lot.” Roberts assigned the opinion to Kennedy, the “swing” justice who had already written an expansive opinion gutting almost a century’s worth of campaign finance legislation. Kennedy tends to “swing wildly in one direction or another,” Toobin writes, “an extremist—of varied enthusiasms.” In the area of campaign finance, he has consistently “swung” to the conservative side of the argument. He is, Toobin writes, “extremely receptive to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance.” Moreover, Kennedy enjoys writing controversial and “high-profile” opinions. Toobin says that Roberts’s choice of Kennedy to write the opinion was clever: Roberts came onto the Court promising to conduct himself with judicial modesty and a respect for precedent. Kennedy, with his draft opinion at the ready, was a better choice to write an opinion that lacked either modesty or a respect for Court precedence. Roberts, Toobin writes, “obtained a far-reaching result without leaving his own fingerprints.” Kennedy, in an often-eloquent opinion that did not deal with the gritty reality of the Citizens United case, stated that any restraint of money in a campaign risked infringing on free speech. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right 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.… By taking the right to speak from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Kennedy also reaffirmed the Court’s perception that corporations deserve the same First Amendment protections enjoyed by individuals. Kennedy’s opinion found, in Toobin’s words, that “[t]he Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing.” One of the only provisions remaining in McCain-Feingold after Kennedy’s opinion was the ban on direct corporate contributions to candidates.
Fiery Dissent from 'Liberal' Stevens - Toobin reminds readers that the elder statesman of the “liberal” wing of the Court at the time, John Paul Stevens, is a “moderate Midwestern Republican,” one of the last of a “vanishing political tradition.” Though Stevens’s views have migrated left on some issues, such as the death penalty, Toobin writes that the perception of Stevens as a Court liberal is mostly because of the Court’s steady progression to the right. Toobin writes that the 90-year-old Stevens has grown dispirited in recent years, as the conservative wing of the Court, led by Scalia, Alito, and Roberts with Clarence Thomas and often Kennedy in tow, overturned one Court precedent after another. “The course of Citizens United represented everything that offended Stevens most about the Roberts Court,” Toobin writes. Much of Stevens’s objections to the Roberts Court are rooted in procedure; he is deeply troubled by the Citizens United case being transformed by Roberts and his conservative colleagues from a narrowly focused case about a single McCain-Feingold provision to what Toobin calls “an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.” Stevens wrote in his angry dissent, “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” A simple change in the McCain-Feingold law to disallow its application to full-length documentaries the CU case was sparked by, or even to nonprofit organizations such as CU, would have been appropriate, Stevens wrote. He penned a 90-page dissent, the longest of his career, blasting almost every aspect of Kennedy’s decision, starting with Kennedy’s ignoring of precedent and continuing with a refutation of Kennedy’s perception of the Constitutional definitions of “censorship” and “free speech.” Stevens was angered by Kennedy’s equivocation of corporations with people. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” he wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress has drawn significant distinctions between corporations and people for over a century, he wrote: “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act” (see 1907). He even challenged Kennedy’s stated fear that the government might persecute individuals’ speech based on “the speaker’s identity,” sarcastically noting that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ [a famed Japanese propagandist] during World War II the same protection as speech by Allied commanders.” According to Toobin, Stevens’s law clerks disliked the dated reference, but Stevens, a Navy veteran, insisted on keeping it. Toobin writes that “Stevens’s conclusion was despairing.” Stevens concluded: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.… It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Toobin notes that as “impressive” as Stevens’s dissent may have been, it was Kennedy’s opinion that “was reshaping American politics.”
Reaction - In his State of the Union address six days after the verdict, President Obama referenced Justice Ruth Bader Ginsburg’s concerns about foreign influence in American politics by saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections” (see January 27-29, 2010). Democrats cheered as Obama said, “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Alito’s mouthing of the words “not true” stirred some controversy; Toobin notes that Alito was technically correct, as “Kennedy’s opinion expressly reserved the question of whether the ruling applied to foreign corporations.” However, Toobin notes, “as Olson had argued before the justices, the logic of the Court’s prior decisions suggested that foreign corporations had equal rights to spend in American elections.” With the Citizens United decision and a March 2010 decision that allowed for the formation of “super PACs” (see March 26, 2010), the way was clear for what Toobin calls “presidential campaigns in 2012 that were essentially underwritten by single individuals.” He notes the billionaires that almost single-handedly supported Republican presidential candidates (see February 21, 2012, February 16-17, 2012, February 21, 2012, March 26, 2012, and April 22, 2012), and the efforts of organizations like Crossroads GPS that have to date raised tens of millions of dollars for Republican candidates (see May 2, 2012). Toobin believes that the Court will continue to deregulate campaign finance, noting the 2011 decision that invalidated Arizona’s system of public financing that state enacted after a series of campaign finance scandals (see June 27, 2011). He concludes, “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” [New Yorker, 5/21/2012]
Criticisms of the Article - Toobin’s article will engender significant criticism, from nuanced questioning of particular elements of Toobin’s story (see May 14, 2012) to accusations of outright “fictionalizing” (see May 17, 2012) and “libelous” claims (see May 15-17, 2012).

Entity Tags: Clarence Thomas, US Supreme Court, Citizens United, Barack Obama, Antonin Scalia, Anthony Kennedy, American Crossroads GPS, Tillman Act, Bipartisan Campaign Reform Act of 2002, Theodore (“Ted”) Olson, Ruth Bader Ginsberg, John Paul Stevens, John G. Roberts, Jr, Malcolm Stewart, Jeffrey Toobin, Republican Party, Hillary Clinton, Samuel Alito, Federal Election Commission

Timeline Tags: Civil Liberties

Ed Whelan of the conservative National Review is highly critical of a recent article by the New Yorker’s Jeffrey Toobin about the internal decision-making process behind the 2010 Citizens United decision (see January 21, 2010 and May 14, 2012). Elements of Toobin’s narrative have already been questioned by law professors Thomas Goldstein and Jonathan Adler (see May 14, 2012), though both professors are generally supportive of the article and recommend it for reading. In his first article, Whelan writes that the evidence “doesn’t support his thesis,” and promises a followup article that addresses “some of Toobin’s wild distortions about” the decision, including what he calls Toobin’s “baseless libel” against Chief Justice John Roberts, referencing Toobin’s implication that Roberts engineered the sweeping campaign finance reform of the decision in order to aid Republican candidates. Whelan interprets Toobin’s evidence to say that it shows Justice Anthony Kennedy, not Roberts, enlarged the scope of the Citizens United decision; however, Whelan believes neither interpretation. Some of Toobin’s interpretation of events hinges on a draft dissent penned by Justice David Souter that was withdrawn after Roberts agreed to let the case be re-argued (see June 29, 2009 and September 9, 2009). Whelan implies that he doubts the existence of such a dissent, an implication that cannot be disproven, as Souter sealed his Court records after his retirement (see May 14-16, 2012). If the dissent does exist, Whelan doubts that Toobin has read it. He concludes by casting aspersions on Toobin’s assertion that Roberts engineered the results of the decision “without leaving his own fingerprints.” Roberts cast the deciding vote in the 5-4 split, Whelan notes, and adds that Roberts did not entirely escape criticism for the ruling after it was issued. [National Review, 5/15/2012]
Part Two - The next day, Whelan publishes the second part of the article, and condemns Toobin for asserting that Roberts crafted the decision with the intention of helping Republican candidates in upcoming elections. He calls the assertion “scurrilous,” and says Toobin presents “not an iota of evidence” for the claim. Whelan then writes that no evidence exists to show that the decision has helped Republican candidates more than Democrats (see November 1, 2010 and January 21, 2012), apparently ignoring two years’ worth of evidence showing that in the wake of decisions, outside funding of Republican candidates has swamped Democrats’ efforts to retain parity (see August 2, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, October 30, 2010, Mid-November 2010, January 26, 2011 and After, March 2011, (May 4, 2011), May 5, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 8, 2011, December 1, 2011, January 6, 2012, January 23, 2012, February 6, 2012, February 9, 2012, February 21, 2012, February 21, 2012, February 21, 2012, March 9, 2012, March 26, 2012, Late March 2012, April 13-20, 2012, April 22, 2012, and May 2, 2012). He cites an article by Weekly Standard contributor Andrew Ferguson that denies the “rich and powerful” donate more to Republicans than Democrats, where the only “evidence” Ferguson cited was his assertion that “Democrats are the party of what Democrats used to call the superrich. Only Democrats seem not to realize this.” [National Review, 5/16/2012]
Final Thoughts - Whelan’s final article on the subject approvingly cites an equally negative critique of the Toobin article from Weekly Standard writer Adam White (see May 17, 2012), and insults law professor Richard Hasen’s perspective on the matter (see May 14-16, 2012); after noting that Hasen is a “[l]aw professor and election-law expert,” Whelan advises Hasen to read White’s column more closely. He also derides the idea that the Souter dissent is “secret,” noting that it would have been circulated among the other eight justices, and Justice John Paul Stevens would have had it available to him for his own published dissent. He then quotes Hasen’s critique of Stevens’s “somewhat meandering and ineffective” dissent, turns the phrasing around to insult Souter’s writing style, and says that Souter’s dissent may “reflect… too much of Souter’s draft dissent.” In attacking Hasen’s request for Souter to release the dissent, he contradicts himself by noting that the dissent is “confidential case information” that should remain out of public view. [National Review, 5/17/2012]

Entity Tags: John G. Roberts, Jr, Anthony Kennedy, Andrew Ferguson, Adam White, David Souter, Jeffrey Toobin, Richard L. Hasen, Thomas Goldstein, John Paul Stevens, Jonathan Adler, Ed Whelan

Timeline Tags: Civil Liberties

Former Senator Russ Feingold (D-WI) writes an article for the Stanford Law Review discussing the dominance of “big money” in the nation’s elections in the wake of the 2010 Citizens United decision (see January 21, 2010), documenting his belief that the rise in small-donor contributions that put Democrats in office in 2006 and 2008 led to the Citizens United backlash, and calling for sweeping campaign finance reform. Feingold writes, “Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.” Feingold heads Progressives United, an advocacy group that pushes for the overturning of the Citizens United decision and campaign finance legislation.
Background - Feingold gives the background of campaign finance reform in America: the 1907 Tillman Act which banned corporations from spending their money in elections (see 1907), which he says was spurred by the realization that “corporate influence corrupts elections”; the Taft-Hartley Act of 1947, which extended the Tillman ban to labor unions (see June 23, 1947); and more recent legislation, including the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), which Feingold co-authored with Senator John McCain (R-AZ). “And for several election cycles, between 2004 and 2008, our system seemed headed towards more fair and transparent elections,” he writes. “But Citizens United changed everything.” The “road to corruption” in modern elections, he says, began when Democrats in the early 1990s began exploiting a loophole in finance regulation that allowed the creation of “soft money” groups (see January 8, 1980, November 28, 1984, December 15, 1986, and December 10, 2003) that allowed parties to solicit unlimited amounts of donations from corporations, labor unions, and individuals. “This system was corrupting,” Feingold writes. “Senators would solicit gigantic, unregulated contributions from the same corporations that had legislation pending on the Senate floor. Both parties were guilty.” The BCRA plugged the “soft money” loophole. Even as the BCRA began to reform campaign finance practices, Feingold writes, “the same corporate interests that fought McCain-Feingold set to work to dismantle it. In what was clearly an orchestrated effort by opponents of campaign reform (see January 25, 2010), a group called Citizens United produced a movie savaging the record of then-Senator Clinton (see January 10-16, 2008). Ostensibly intended to educate the public about conservative concerns regarding Clinton’s run for the presidency, the film was little more than a legal vehicle to challenge some of the common-sense restrictions enacted by the BCRA (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). Specifically, the creators of the film sought to challenge the BCRA’s requirement that electioneering communications—commonly known as ‘phony issue ads’ that attack a candidate in the days before the election, but don’t explicitly advocate voting for or against that candidate—be subject to the same disclosure requirements and contribution limits as other campaign ads.” The case was argued on narrow grounds about a specific provision of the BCRA, but the Court’s conservative justices, led by Chief Justice John Roberts, “manipulated the Court’s process to achieve that result” (see May 14, 2012). Justice John Paul Stevens wrote in his dissent to the majority opinion, “[F]ive justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” The ruling, Feingold writes, “created a framework for corruption parallel to ‘soft money.’” Instead of “soft money” organizations, Citizens United led to the creation of the “super PAC” (see March 26, 2010, June 23, 2011, November 23, 2011, January 4, 2012, January 4, 2012, January 13, 2012, and February 20, 2012). It has also called into doubt the legitimacy of US elections themselves, due to the “increasing skepticism about the campaign finance system.” Many voters now believe “that the average participant’s small contribution is irrelevant, and that the average person’s vote is grossly outweighed by the gigantic contributions now allowed.”
Internet Politics and Small-Donor Contributions - In part due to the BCRA, Feingold writes, “[f]or three election cycles, in 2004, 2006, and 2008, our system of campaign financing began to take shape in a way that channeled citizen participation and provided incentive for candidates to turn to the democratic support of online activists and small-dollar contributors.” He cites the 2004 presidential campaign of Howard Dean (D-VT), who went on to chair the Democratic National Committee (DNC), as the first powerful instance of “online organizing,” using the Internet to garner millions of dollars in small donations from individual citizens. In 2008, the presidential campaign of Barack Obama (D-IL) pushed the Dean innovation even further. The Obama campaign “raised a historic amount in small-dollar contributions,” Feingold writes, and created an online platform to engage supporters. All told, the Obama campaign raised $500 million online.
An Ineffective FEC - By 2008, he writes, the Federal Election Commission (FEC) was completely impotent. The agency “has been fatally flawed since the time of its creation—any administrative law professor will point out that a law enforcement commission with an even number of commissioners [six] is probably designed specifically not to enforce the law at all,” he writes. By 2008, the FEC only had two seated commissioners, and in effect was not enforcing campaign laws whatsoever. Even after eventually receiving a full complement of commissioners, he writes, the agency “remains ineffective, as even Democratic violators go unpunished as conservative commissioners remain unwilling, philosophically, to enforce any campaign finance law.”
2012: Corporations Trump Citizens - In 2012, corporate contributions far outweigh small-dollar donations by individuals. “[T]he most prominent actors in the 2012 election cycle are unnamed corporations and a small group of influential—primarily conservative—billionaires.” Seventy percent of registered voters think super PACs should be illegal, according to polls, and the favorability rating of the Court has dropped a significant amount. Overall, Feingold writes, the public is firmly against the Citizens United paradigm of campaign finance. He advocates strong legislation from Congress, fixing the “broken system of presidential public financing,” and replacing the “dysfunctional” FEC “with a true enforcement agency.” The ultimate repair of campaign finance lies with the Court, he says, noting that the Court has a chance to do some early repair with the Montana case it is now considering (see June 25, 2012). Regardless of what the Court does or does not do in the Montana case, he concludes, “[t]oday’s framework for corruption cannot stand.” [Stanford Law Review, 6/14/2012]

Entity Tags: Howard Dean, Bipartisan Campaign Reform Act of 2002, Barack Obama, Citizens United, Hillary Clinton, Russell D. Feingold, Federal Election Commission, John McCain, John G. Roberts, Jr, Stanford Law Review, John Paul Stevens

Timeline Tags: Civil Liberties

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