by Adam Winkler
The court that heard the Medtronic case had, like the larger political environment, been reshaped since the 1960s, when Warren and Brennan had led the Supreme Court to embrace progressive reform. The court now included six justices, selected by presidents of both parties, whose nominations had been endorsed by the Chamber of Commerce as good for business interests. The Medtronic decision, which came down in February of 2008, was 8–1 in favor of the NCLC and the medical device company. On that same day, the Supreme Court also ruled in favor of the NCLC in two other cases, both of which limited state efforts to hold business accountable for wrongdoing. Amidst reports that lawyers at Public Citizen were “demoralized and discouraged,” Robin Conrad, the charismatic leader of the NCLC, gloated about her three victories in a single morning, a high court hat trick: “I don’t think I’ve ever experienced a day at the Supreme Court like that.”69
The buoyant Conrad nonetheless had little time to celebrate. From her office in the Chamber of Commerce’s majestic, Corinthian-columned building in Washington—designed by Cass Gilbert, the same man who designed the Supreme Court’s majestic, Corinthian-columned building in Washington—Conrad had to begin strategizing for the next term’s slate of cases. One of those cases was a seemingly insignificant dispute about the niggling details of campaign finance law, involving a little-known nonprofit named Citizens United that had used some corporate money to finance a political documentary. That case, like Bellotti, would also be converted from a minor one of little importance into a landmark corporate rights decision with a profound impact on American law and politics.
CHAPTER 10
The Triumph of Corporate Rights
CITIZENS UNITED BEGAN AS A LAWSUIT NO ONE THOUGHT could be won. None of the heavyweight Washington, DC, lawyers were interested in taking on the case when Citizens United, a conservative political advocacy group, sought out counsel in 2007. Lawyers like Ted Olson, who represented George W. Bush in Bush v. Gore and had since become the dean of an emerging group of elite Supreme Court specialists in Washington, preferred cases they could win. And Citizens United’s proposed lawsuit to challenge the federal law restricting corporate spending on election ads was a long shot. Since the early twentieth century, when courts turned away the brewing companies that challenged the Tillman Act and similar state bans, courts had consistently ruled that corporations could be subject to special restrictions in funding campaigns for public office. Although Justice Lewis Powell’s decision in Bellotti had carved out an exception for ballot measure campaigns, the Supreme Court had subsequently affirmed the constitutionality of bans in campaigns for candidates—most recently in 2003, when the justices upheld the very same provisions Citizens United would ultimately challenge. Olson and the several other lawyers who turned Citizens United’s case down knew that the court rarely reconsidered its own decisions after only four short years.
Citizens United, in other words, was exactly the type of case that Jim Bopp Jr., the tall, white-haired lawyer from Terre Haute, Indiana, loved to take. “Jim has always been in the position of making arguments that other people thought were wild-eyed, went too far,” said Trevor Potter, a former chairman of the Federal Election Commission, the main federal agency charged with enforcing the nation’s campaign finance laws. For over twenty years, Bopp, an outspoken Tea Party conservative, had spearheaded a relentless crusade of lawsuits seeking to overturn restrictions on money in politics. “We need more spending on elections,” Bopp insisted, arguing whenever he could for a libertarian approach to campaign finance laws—one that saw nearly all government regulation of money in politics as a violation of the First Amendment. No case was too small; he once represented a student who challenged a college’s $100 spending limit in student council races. He had won big cases, too, including several at the Supreme Court. Even before Bopp signed on to represent Citizens United, he had been accused of turning campaign fund-raising into an ungoverned, anything-goes, Election Day version of the Wild West. “The Wild West?” Bopp laughed, “That’s freedom.”1
Like Ted Olson, Bopp was an accomplished lawyer with ties to the Republican Party and a track record of success at the Supreme Court. The similarities, however, ended there. Bopp worked out of a tiny law office in Indiana, where he primarily represented individuals and ideological groups suing to limit abortion and campaign finance law; big business, he said, would not hire him. Olson was a fantastically successful partner at the powerhouse law firm of Gibson, Dunn & Crutcher, where he represented the nation’s biggest corporations out of the firm’s Washington office. Bopp was gleefully contemptuous of liberals—he liked to call President Barack Obama a “socialist”—while Olson was married to a Democrat and hosted parties for a bipartisan coterie of Washington insiders. Olson’s shirts had French cuffs, Bopp’s had plastic buttons. Both were Republicans but each represented a different branch of the conservative movement of the early twenty-first century. Bopp was the Supreme Court equivalent of the Tea Party insurgent from the heartland who was tired of compromise and wanted to radically reshape the law to promote conservative values. Olson was more the genteel face of a Republican elite in Washington that was content to push the law more gingerly.2
There was some professional animosity between Bopp and Olson, too, and Bopp often complained that he should have received credit for Olson’s greatest victory, Bush v. Gore, the case that decided the contested 2000 presidential election. Although Olson had been Bush’s lawyer in the Supreme Court, Bopp insisted that he had developed the winning legal theory adopted by the Supreme Court and that Bush won the case and the presidency in spite of Olson. Nevertheless, Olson was the one Bush rewarded by naming him to the prestigious post of solicitor general, while Bopp went back to Terre Haute. The friction between Bopp and Olson that grew out of Bush v. Gore would also color Citizens United—which, like that earlier case, quickly became one of the most controversial decisions in the history of the Supreme Court. Once again, Bopp would claim to do much of the legwork and Olson would receive most of the credit for winning a groundbreaking decision that fundamentally reshaped American politics.3
Citizens United, which held that corporations (and unions) have a First Amendment right to spend their money to influence elections for public office, sparked a backlash, including a nascent movement to amend the Constitution to eliminate all constitutional protections for corporations. Critics accused the Supreme Court of judicial activism; the justices, it was said, had read new rights into the Constitution. While the charge was not completely without foundation, the Citizens United decision also followed well-established patterns drawn over the course of the previous two centuries of corporate rights cases. Citizens United, in other words, is best understood as the most recent manifestation of a long, and long overlooked, corporate rights movement.
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AMERICAN POLITICS IN THE first decades of the twenty-first century suffered from increasing polarization, with the widening gap between Republicans and Democrats making compromise nearly impossible. Polarization had many contributing factors, including a changing media environment that rewarded bluster and stridency. Perhaps the most important cause was what political scientists call “partisan realignment”—a reshuffling of the coalitions that form the two main political parties. For most of the twentieth century, both parties had distinctively liberal and conservative wings. In 1964, President Lyndon Johnson famously (and, perhaps, apocryphally) said the Civil Rights Act he signed that year would cost Democrats the South for a generation; whether or not Johnson was right about the cause, the one-party South did switch to the Republican Party over the following three decades. Meanwhile, northeastern liberals defected from an increasingly southern-dominated Republican Party to join the Democrats. Partisan realignment meant that liberals were nearly uniformly concentrated in the Democratic Party and conservatives in the GOP. Americans’ political attitudes had not necessarily changed that much, but the political parties had been radically transformed.4
In this age of hyper-par
tisanship, the Washington, DC–based advocacy group Citizens United thrived. Originally started in 1988 by the political consultant behind the notorious Willie Horton ad that derailed Michael Dukakis’s presidential campaign, the organization set out in 2007 to bring down another Democratic presidential candidate, Hillary Clinton. By then, it was under the leadership of David Bossie, an audacious political operative who had long been a thorn in the sides of the Clintons. During Bill Clinton’s presidency, Bossie had been an investigator for the House and the Senate, working on probes into several Clinton scandals, including ones involving the White House Travel Office and the suicide of Vince Foster. Bossie, however, was forced to resign in disgrace after being caught doctoring tapes to make it appear that Hillary Clinton was guilty of defrauding clients of her Arkansas law firm. Nonetheless, he would stage a political comeback with the Citizens United organization, and he would eventually taste the fruit of victory over the Clintons in 2016 when he served as deputy campaign manager to Donald Trump.5
Back in 2007, Bossie and his organization decided to make a hard-hitting, feature-length documentary about Hillary Clinton, the presumptive front-runner in the 2008 election. Bossie had first been inspired to turn his partisan attentions to filmmaking by Michael Moore and his successful 2004 documentary, Fahrenheit 9/11, a harshly critical exposé of President George W. Bush and his family’s connections to Saudi-funded terrorist networks. Moore’s film was a box-office success—and the advertisements for it served, in Bossie’s view, as effective campaign ads for John Kerry, Bush’s opponent in the presidential campaign that year. Citizens United’s movie about Hillary Clinton was unimaginatively titled Hillary: The Movie, and the substance was no more nuanced. It featured a litany of pundits deriding Clinton as corrupt, deceitful, and driven by a desire for power.6
DAVID BOSSIE, THE PRESIDENT OF THE ADVOCACY GROUP CITIZENS UNITED.
It was perfectly lawful for Bossie to make his documentary, regardless of how one-sided it might have been. The problem was that Citizens United, which intended to broadcast the documentary on television through video-on-demand, had used corporate money to finance the project. Under the terms of the Bipartisan Campaign Reform Act of 2002, corporate money could not be used to finance what the law called “electioneering communications”—basically, ads about candidates broadcast on television or radio in the weeks prior to an election. The most significant regulation of money in politics since Watergate, the Bipartisan Campaign Reform Act effectively expanded the Roosevelt-era prohibition on corporate contributions to candidates to apply also to ads featuring candidates. While the law allowed corporations to finance ads through their political action committees (PACs), which raised money from employees and shareholders through voluntary donations, companies were prohibited from using general treasury funds, their main pot of money.7
Citizens United had accepted some contributions from businesses and used that money to finance a small portion of the costs of Hillary: The Movie. Because of that corporate financing, however, Citizens United was likely to run into trouble at the Federal Election Commission. The commissioners had previously indicated that a documentary about a candidate produced by a political advocacy group like Citizens United might well be deemed an “electioneering communication” under the Bipartisan Campaign Reform Act. Michael Moore was able to air his film because it had been made by a reputable and experienced production company that was regularly in the business of making commercial films. An election-year biopic of one of the major candidates by an explicitly political group like Citizens United, by contrast, would be seen as motivated by partisanship, not profit. If so, then Bossie would not be able to air Hillary: The Movie or advertisements for it in the weeks just before the election—precisely when it might have the most impact. Rather than abandon his movie, Bossie decided to hire a lawyer and fight.
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THE LAWSUIT IN CITIZENS UNITED threatened to open up a loophole to allow corporate money in candidate elections much as Bellotti had allowed corporate money in ballot measure campaigns. Yet despite the long-standing prohibitions on corporate contributions passed in the wake of Charles Evans Hughes’s investigation of corruption in the life insurance companies, corporations had already gained a toehold in candidate races—through PACs. Labor unions had invented the PAC as a way to skirt laws prohibiting unions from contributing to candidates. Corporations, however, were astute legal leveragers and once again were able to exploit progressive reforms to enhance the power of business.
Corporations might never have gained the right to form PACs were it not for legendary film director Cecil B. DeMille. Often called the “founding father of Hollywood,” DeMille made seventy films between 1913 and 1956. With hugely popular titles like The Ten Commandments, Cleopatra, and The Greatest Show on Earth, which won the Academy Award for Best Picture in 1952, DeMille was one of the most successful directors of all time. In the 1940s, he was as much a celebrity as the stars who appeared in his films. Unlike with David Bossie, however, it was not a movie that put DeMille at the center of controversy. It was instead his immensely popular radio program, Lux Radio Theatre, which enjoyed a weekly audience of over 20 million people—nearly 20 percent of the US population.8
DeMille, like all radio performers of his day, was a member of a union, the American Federation of Radio Artists. In 1944, the Los Angeles chapter of AFRA decided to impose a special assessment of $1 on every local member to be used to defeat Proposition 12, a right-to-work measure on the California ballot that would prohibit closed union shops. DeMille, a fervent anti-Communist, supported Proposition 12 and refused to pay the assessment. The union, he said, was “demanding, in a word, that I cancel my vote with my dollar.” What was cancelled instead was DeMille’s radio program, once AFRA suspended DeMille from the union.9
DeMille’s protest garnered considerable publicity, both because of his celebrity and because the political activity of unions was a hot-button issue in the 1940s. Although unions historically had not been active in funding elections, the 1936 election had marked a shift. One year earlier, in 1935, President Franklin Roosevelt secured passage of the National Labor Relations Act, a law that was called “the Magna Carta of Labor” because it formally recognized the legal right of workers to bargain collectively as a union. Roosevelt’s opponent in the 1936 race was Republican Alf M. Landon, who promised to repeal the NLRA. The two largest unions in the country, the Congress of Industrial Organizations (CIO) and the American Federation of Labor (AFL), decided they had to get involved to save the law and made large contributions to pro-union Democrats and Roosevelt’s reelection fund.10
FAMED MOVIE DIRECTOR AND RADIO PERSONALITY CECIL B. DEMILLE PROTESTED AGAINST MANDATORY UNION DUES USED FOR POLITICAL PURPOSES.
The unions’ political activity triggered a congressional investigation that resulted in a recommendation that unions, like corporations, be barred from making political contributions to candidates. That recommendation was not acted on immediately—in part because union spending in the 1936 race was so successful in electing allies to Congress—but a series of unpopular labor stoppages during World War II created the political will to limit the unions. In 1943, Congress prohibited unions from striking and making political contributions to candidates for federal office for the duration of the war.11
The war was still on when AFRA imposed its special assessment on DeMille. The union’s spending, however, was in support of a state election, not a federal one, so it was not covered by the federal ban. While AFRA’s political activity was lawful, many people were outraged. Even union members supportive of union politics saw DeMille’s story as a cautionary tale. They too could be forced to pay for political advocacy they did not support, or else risk losing their jobs. After the war ended, Congress made the union money ban permanent, adding it to the existing ban on corporate contributions in the Taft-Hartley Act of 1947. In a nod to DeMille, the law also barred unions from punishing members who refused to pay special assessments designed for political
purposes even in state elections. Lawmakers thought that unions, like corporations, should not be able to use a member’s money on politics the member did not support.12
Money in politics is often likened to water: it seeps inevitably into any cracks in the barriers that campaign finance law erects to restrain it, eventually making the openings bigger and bigger to allow ever more money to flow through. That is how union money found its way into candidate elections, the result of a determined effort by union leaders to exploit the fissures in the law. In the 1940s, the CIO decided to experiment by setting up a committee distinct from the CIO itself to do political advocacy work. Even though the CIO funded and managed the Congress of Industrial Organizations Political Action Committee, or CIO-PAC, the latter was technically a separate entity from the union. As a result of that separation, CIO-PAC was not a labor union covered by the ban, even though the union exercised complete control over the PAC. Using the union’s funds, CIO-PAC paid for publicity, pamphlets, and radio ads to help elect pro-labor candidates. CIO-PAC also instituted a “dollar drive” to raise funds from union members to contribute directly to candidates. Other unions soon followed suit and formed their own political action committees.13
Over the next thirty years, union PACs flourished, despite operating in a legal gray area. Nothing in the law explicitly allowed them, and the wink-and-a-nod separation between a union and its PAC led to accusations that unions were simply flouting the law. There were occasional prosecutions, a few of which made it to the Supreme Court. Although the justices danced around the legal questions surrounding PACs, without ever clarifying entirely their legal basis, a few guiding principles were established. One was the distinction between a union’s general treasury funds, which Congress was entitled to prohibit from being used for electioneering, and funds from members “fairly said to have been obtained on a voluntary basis.” In 1972, for instance, the court in Pipefitters Local v. United States held that the ban on union contributions did not apply to “political funds financed in some sense by . . . voluntary contributions.” The “dominant concern” behind the law, the court explained, was “to protect the dissenting shareholder or union member,” which was not implicated if the money was given willingly for political purposes.14 A union’s PAC was like the NAACP in NAACP v. Alabama ex rel. Patterson: a voluntary membership organization that people join specifically to exercise First Amendment rights.