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Context of 'Mid-2004 and After: Wisconsin Right to Life Group, Lawyer Challenge Campaign Finance Restrictions'

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The anti-abortion National Right to Life Committee (NRLC) issues a series of “voter guides” just before Election Day. The pamphlets are later credited as helping persuade voters to cast their ballots for presidential candidate Ronald Reagan (R-CA) and a number of Republican Senate candidates. In 2012, reporter Jeffrey Toobin will characterize them as “barely concealed works of advocacy,” a form of “electioneering” that federal law bans groups such as NRLC from issuing this close to an election. The Federal Election Commission (FEC) later tries to challenge the pamphlet distribution, and the NRLC wins a First Amendment challenge in court under the legal leadership of general counsel James Bopp Jr. As a result of the court case, Bopp becomes interested in challenging campaign finance restrictions (see January 10-16, 2008) as well as abortion rights. [New Yorker, 5/21/2012]

Entity Tags: Federal Election Commission, James Bopp, Jr, National Right to Life Committee, Ronald Reagan, Jeffrey Toobin

Timeline Tags: US Health Care, Civil Liberties, Elections Before 2000

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

Wisconsin Right to Life logo.Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

Entity Tags: Russell D. Feingold, Federal Election Commission, Bipartisan Campaign Reform Act of 2002, George W. Bush, Samuel Alito, James Bopp, Jr, Wisconsin Right to Life, US Supreme Court, Sandra Day O’Connor

Timeline Tags: Civil Liberties, 2004 Elections

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia

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

A three-judge panel rules that the conservative advocacy group Citizens United (CU) must agree to reveal the identities of the donors that made its documentary on presidential candidate Hillary Clinton possible, if it intends to advertise the film. The film, entitled Hillary: The Movie, is considered by the Federal Election Commission (FEC) to be “electioneering,” or the communication of partisan political views, as opposed to a more objective documentary as CU claims. CU challenged the FEC in court in a December 2007 filing, claiming that “issue-oriented television ads are protected by the First Amendment and should not be subject to disclosure requirements under McCain-Feingold campaign finance law,” referring to the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002). Under the BCRA, partisan political communications such as the CU film are subject to blackout periods in a specific period before elections. The Supreme Court ruled that so-called “issue ads” can be run by partisan political groups such as CU (see Mid-2004 and After), but the FEC has ruled that such “issue ads” must include disclaimers, and the producers of the ads must file reports that name the ads’ contributors. CU is challenging such disclosure requirements, saying that advertisements for the Clinton film are commercial in nature and not political, and therefore protected under the First Amendment from being forced to disclose donor information. The court rules otherwise. [United States District Court for the District Of Columbia, 1/15/2008 pdf file; Washington Times, 1/16/2008; Media Matters, 1/16/2008]

Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Citizens United, Federal Election Commission, US Supreme Court

Timeline Tags: Civil Liberties, 2008 Elections

James Bopp Jr.James Bopp Jr. [Source: Associated Press / Politico]A former lawyer for Citizens United (CU), James Bopp Jr., confirms that the organization had a “10-year plan” that culminated in the recent Citizens United ruling that overturned most of US campaign finance law (see January 21, 2010). Bopp has been battling government restrictions on abortion (see November 1980 and After) and campaign finance (see Mid-2004 and After, January 10-16, 2008, and March 24, 2008) for much of his 35-year career. He calls his opponents, including President Obama, “socialists,” and justifies his views by citing the First Amendment. Bopp did not argue the case before the Supreme Court; Citizens United replaced him with what the New York Times calls “a less ideological and more experienced Washington lawyer” (see March 15, 2009). But Bopp is the lawyer who advised CU to use its documentary about presidential candidate Hillary Clinton (D-NY—see January 10-16, 2008) as a test case to push the limits of corporate spending. He says his strategy continues, with the ultimate goal of deregulating campaign finance completely. “We had a 10-year plan to take all this down,” Bopp says. “And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.… We have been awfully successful, and we are not done yet.” Law professor and campaign finance law expert Richard Hasen says the CU case “was really Jim’s brainchild.” Hasen explains: “He has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result. He is a litigation machine.” Bopp has other cases on appeal with various courts, all designed to do what the Times says “chip away at some of the disclosure laws left intact by the Supreme Court’s ruling in the Citizens United case.” One of Bopp’s main goals is to end the ban on direct donations by corporations to candidates, a goal law professor Nathaniel Persily says is logical in light of Bopp’s earlier efforts: “If you cannot ban corporate spending on ads, how is it that you are allowed to ban corporate contributions to candidates? That is the next shoe to drop.” He also wants to end all disclosure requirements, explaining, “Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.” Forcing groups who buy political commercials to disclose their donors is nearly as punitive, he says, “as an outright criminal go-to-jail-time prohibition.” Bopp says he harbors no ill will towards CU from replacing him with another lawyer to argue the case before the Court. “I understand that law is art,” he says. “Picasso, Van Gogh, Michelangelo—they are all very different, but all create masterpieces.” [New York Times, 1/25/2010]

Entity Tags: Nathaniel Persily, Barack Obama, Citizens United, New York Times, Hillary Clinton, US Supreme Court, James Bopp, Jr, Richard L. Hasen

Timeline Tags: Civil Liberties

Lawyer James Bopp Jr. forms a super PAC, Republican Super PAC Inc., in order to make unlimited financial contributions towards “independent” expenditures in support of Republican candidates in the November 2012 elections. Bopp is joined by Roger Villere, the chairman of the Louisiana Republican Party. Bopp is known for arguing high-profile cases against abortion rights (see November 1980 and After and Mid-2004 and After) and campaign finance regulations (see December 10, 2003 and Mid-2004 and After). He was the lawyer who first worked with the lobbying and advocacy group Citizens United, whose lawsuit gave the Supreme Court the opportunity to greatly deregulate campaign finance law (see January 10-16, 2008, March 24, 2008, and January 21, 2010). According to an email from Bopp and Villere, the Republican Super PAC will coordinate with other independent groups “to bridge gaps in the independent campaigns supporting Republican candidates.… The best way to neutralize President Obama’s unprecedented $1 billion political war chest and the political spending by labor unions and wealthy Democrats is to build a super fund-raising infrastructure for independent expenditure spending.” [New York Times, 5/16/2011] The majority of the money raised and spent on behalf of candidates by super PACs has gone to support Republicans, and not President Obama or Democratic candidates (see January 21-22, 2010, March 26, 2010, August 2, 2010, September 13-16, 2010, September 21 - November 1, 2010, September 28, 2010, October 2010, Around October 27, 2010, November 1, 2010, (May 4, 2011), and May 5, 2011).

Entity Tags: Roger Villere, James Bopp, Jr, US Supreme Court, Republican Super PAC Inc, Barack Obama

Timeline Tags: Civil Liberties

The US Court of Appeals for the First Circuit issues a pair of rulings in two related cases that affirm campaign finance disclosure provisions in Maine and Rhode Island. Both cases were brought by the National Organization for Marriage (NOM), a conservative group that opposes, among other things, state and federal laws granting gays and lesbians the right to marry. The Citizens United ruling (see January 21, 2010) allows for unlimited donations from corporations and labor unions, but also upholds disclosure laws that can be “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” NOM’s pair of lawsuits challenged those areas of campaign finance laws in the two states, asking that NOM’s donors be allowed to remain secret. The court denies the lawsuits, writing in part: “In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the ‘marketplace of ideas’ has become flooded with a profusion of information and political messages. Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin. Disclosing the identity and constituency of a speaker engaged in political speech thus ‘enables the electorate to make informed decisions and give proper weight to different speakers and messages.‘… Additionally, in the case of corporate or organizational speakers, disclosure allows shareholders and members to ‘hold them accountable for their positions.‘… In short, ‘the First Amendment protects political speech; and disclosure permits citizens and shareholders to react to that speech in a proper way.’” Unless the appellate court’s decisions are overturned, the two states’ campaign disclosure statutes will remain in effect. NOM attorney James Bopp used a number of arguments in court that legal analyst Ian Millhiser will characterize as “paranoid fantasies regarding the impact of disclosure laws,” such as the need for anti-gay groups to keep their donors secret to protect those donors from harassment and threats. Industry groups have argued that government officials intend to use disclosure laws to reward their political allies. Millhiser will observe sardonically, “Because there is nothing dirtier than requiring wealthy individuals and corporations to come out from the shadows and reveal which elections they want to buy.” Similar lawsuits against campaign disclosure laws in Florida and New York, which Millhiser will say are the product of a “coordinated campaign” against disclosure, are pending. A lower court dismissed the New York case, and that decision is in the process of being appealed. [NATIONAL ORGANIZATION FOR MARRIAGE et al v. WALTER F. MCKEE et al, 8/11/2011; NATIONAL ORGANIZATION FOR MARRIAGE v. JOHN DALUZ, 8/11/2011; Policy Shop, 8/16/2011; Think Progress, 8/17/2011] Shortly after the Citizens United ruling, Bopp confirmed that this case, like the Citizens United case and others (see Mid-2004 and After), is part of a long-term strategy to completely dismantle campaign finance law (see January 25, 2010).

Entity Tags: National Organization for Marriage, James Bopp, Jr, Ian Millhiser

Timeline Tags: Civil Liberties

The Republican National Committee (RNC) files a court brief calling the federal ban on direct corporate donations to candidates unconstitutional, and demanding it be overturned. Such direct donations are one of the few restrictions remaining on wealthy candidates wishing to influence elections after the 2010 Citizens United decision (see January 21, 2010). The brief is in essence an appeal of a 2011 decision refusing to allow such direct donations (see May 26, 2011 and After). The RNC case echoes a request from Senator Mike Lee (R-UT) that he be allowed to form and direct his own super PAC (see November 23, 2011), and recent remarks by Republican presidential frontrunner Mitt Romney (R-MA) calling for donors to be allowed to contribute unlimited amounts to candidates (see December 21, 2011). The RNC brief claims: “Most corporations are not large entities waiting to flood the political system with contributions to curry influence. Most corporations are small businesses. As the Court noted in Citizens United, ‘more than 75 percent of corporations whose income is taxed under federal law have less than $1 million in receipts per year,’ while ‘96 percent of the 3 million businesses that belong to the US Chamber of Commerce have fewer than 100 employees.’ While the concept of corporate contributions evokes images of organizations like Exxon or Halliburton, with large numbers of shareholders and large corporate treasuries, the reality is that most corporations in the United States are small businesses more akin to a neighborhood store. Yet § 441b does not distinguish between these different types of entities; under § 441b, a corporation is a corporation. As such, it is over-inclusive.” Think Progress legal analyst Ian Millhiser says the RNC is attempting to refocus the discussion about corporate contributions onto “mom and pop stores” and away from large, wealthy corporations willing to donate millions to candidates’ campaigns. If the court finds in favor of the RNC, Millhiser writes: “it will effectively destroy any limits on the amount of money wealthy individuals or corporation[s] can give to candidates. In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office. Moreover, nothing prevents one corporation from owning another corporation. For this reason, a Wall Street tycoon who wanted to give as much as a billion dollars to fund a campaign could do so simply by creating a series of shell corporations that exist for the sole purpose of evading the ban on massive dollar donations to candidates” (see October 30, 2011). [United States of America v. Danielcytk and Biagi, 1/10/2012 pdf file; Think Progress, 1/11/2012] The RNC made a similar attempt in 2010, in the aftermath of Citizens United; the Supreme Court refused to hear an appeal of its rejection. [New York Times, 5/3/2010; Tom Goldstein, 5/14/2012] Over 100 years of US jurisprudence and legislation has consistently barred corporations from making such unlimited donations (see 1883, 1896, December 5, 1905, 1907, June 25, 1910, 1925, 1935, 1940, March 11, 1957, February 7, 1972, 1974, May 11, 1976, January 30, 1976, January 8, 1980, March 27, 1990, March 27, 2002, and December 10, 2003). Shortly after the Citizens United ruling, RNC lawyer James Bopp Jr. confirmed that this case, like the Citizens United case and others (see Mid-2004 and After), was part of a long-term strategy to completely dismantle campaign finance law (see January 25, 2010).

Entity Tags: Republican National Committee, Halliburton, Inc., ExxonMobil, Ian Millhiser, Michael Shumway (“Mike”) Lee, Willard Mitt Romney, US Supreme Court, US Chamber of Commerce, James Bopp, Jr

Timeline Tags: Civil Liberties, 2012 Elections

Columnist Adam White, writing for the conservative Weekly Standard, lambasts 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). Most publications describe the decision as allowing corporations and labor unions to spend money freely in campaigns, but White defines it differently, calling it an affirmation of “a corporation’s First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office” (see January 21, 2010, January 22, 2010, and February 2, 2010). Law professors Tom Goldstein and Jonathan Adler have found some “spin” in Toobin’s account of events (see May 14, 2012), and law professor Richard Hasen has asked that a draft dissent highly critical of the decision and its methodology be made public to shed light on Toobin’s narrative (see May 14-16, 2012). However, White goes significantly further than any of the professors in tarring Toobin’s article, and in some instances Toobin himself. White writes flatly that everyone outside of “Toobin’s base,” presumably meaning liberals who comprise “Chief Justice [John] Roberts’s critics,” is “skeptical” of the article, and cites Goldstein and National Review columnist Ed Whelan (see May 15-17, 2012) as examples of those presumed skeptics who have “poured cold water” on the story. According to White, Toobin “front-load[ed] his story with easily disprovable mischaracterizations of the case” that [e]ven a cursory review of the case’s briefs, and contemporary news coverage, disproves Toobin’s thesis” of Roberts using a narrowly drawn case to revamp and invalidate most of US campaign finance law. White writes that Toobin’s characterization of the narrow focus of the case is wrong: “The First Amendment stakes were well known, and much discussed, in the run-up to oral argument.” He cites the New York Times editorial published at the time of the first arguments, in March 2009 (see March 23, 2009), warning that if the Court ruled in favor of Citizens United, “it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.” He also notes that respected court reporter Lyle Denniston warned before the oral arguments that the Citizens United case threatened to deliver “a sweeping rejection of Congressional authority to regulate campaign spending by corporations.” Toobin himself made some of the same arguments on CNN the day of the arguments, White notes. He calls Toobin’s version of events in the article a “clumsy fictionalization of the case” designed to vilify Roberts. He also questions Toobin’s characterization of the first arguments from Citizens United (CU) lawyer Theodore Olson, going considerably further than either Goldstein or Adler in accusing Toobin of fundamentally misrepresenting Olson’s original, narrowly focused case. According to White, Olson’s opening argument claimed that the restriction being challenged by CU was “unconstitutional as applied to the distribution of Citizens United’s documentary film through video on demand… [it] plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech.” White claims that Olson cited First Amendment grounds in a portion of the arguments not reported by Toobin, and quotes from Olson’s argument; that quote describes Olson’s citation of the 2007 case Wisconsin Right to Life (WRTL—see Mid-2004 and After and June 25, 2007), which indeed used First Amendment grounds for its successful positioning, and quotes Olson as saying the WRTL decision “errs on the side of permitting the speech, not prohibiting the speech.” White accuses Toobin of deliberately misrepresenting Olson’s argument to “advanc[e] his own anti-Roberts narrative.” White is unable to check the accuracy of Toobin’s behind-the-scenes narrative, as Toobin’s sources are not revealed in the article, but White is “skeptical,” writing, “Given Toobin’s inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin’s description of the justices’ private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?” Like Adler, Toobin questions the ethics of the person or persons at the Court who “leaked” the story to Toobin. [Weekly Standard, 5/17/2012]

Entity Tags: New York Times, Ed Whelan, Adam White, Jeffrey Toobin, Lyle Denniston, John G. Roberts, Jr, Theodore (“Ted”) Olson, Jonathan Adler, Richard L. Hasen, Thomas Goldstein

Timeline Tags: Civil Liberties

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