We the Corporations
Page 37
A SMALL AMOUNT OF CORPORATE MONEY WAS USED TO FINANCE HILLARY: THE MOVIE, LEADING TO THE CITIZENS UNITED CASE.
Despite these two unusual features of Citizens United’s case, Bopp and Bossie still faced seemingly insurmountable hurdles, as became clear in the first federal court hearing in the case, held in January of 2008. When Bopp first learned the identity of the three judges selected at random to hear the case, he must have been pleased, as two were well-known conservatives: A. Raymond Randolph, an appointee of George W. Bush, and Royce Lamberth, an appointee of Ronald Reagan. Lamberth in particular had a history of rulings against the Clintons. According to the liberal Mother Jones magazine, Lamberth had “a reputation as a Clinton basher.” Yet, like the lawyers who could not summon the passion to take on Bossie’s case, the judges were not very sympathetic to Bopp’s argument that Hillary: The Movie was “issue-oriented” speech rather than an appeal to voters to cast their ballots against Clinton the candidate.26
“What is the issue?” asked Randolph.
“That Hillary Clinton is a European Socialist,” Bopp replied. “That is an issue.”
“Which has nothing to do with her campaign?” Lamberth asked incredulously. “Once you say, ‘Hillary Clinton is a European Socialist,’ aren’t you saying vote against her?”
No, said Bopp, because the movie did not say explicitly that anyone should vote one way or another. “Oh, that’s ridiculous,” replied Lamberth. When Bopp insisted that Hillary: The Movie was investigative journalism and likened it to the celebrated television news program 60 Minutes, Lamberth laughed out loud. By the time the hearing ended, it was clear to Bopp that victory would have to come, if at all, from the Supreme Court.
* * *
IN OCTOBER OF 2008, nine months after Judge Lamberth mocked Jim Bopp’s argument in the Citizens United case, the leading conservative lawyers in Washington assembled at the Capitol Hill Club, located just blocks from the Supreme Court. The club was said to be “one of the most popular gathering spots in Washington for lawmakers, government officials and other members of the political establishment.” That night the club was hosting a celebration for Ted Olson, who was being honored as the “Lawyer of the Year” by the Republican National Lawyers Association.27
Many arrived at the club early to watch the final presidential debate of the year and root for Republican John McCain, whose campaign was reeling. The economy was in dire crisis, and both McCain and the incumbent Republican president George W. Bush appeared overwhelmed by what came to be known as the Great Recession, the worst economic downturn since the Great Depression of the 1930s. Unemployment doubled, housing prices dropped 30 percent, and the stock market plunged. Meanwhile, the candidacy of Democrat Barack Obama, vying to be the first African American elected president, was surging into the final month of the campaign on the promise of bringing hope and change to Washington.
Once the fete of conservative lawyers began, John Ashcroft, Bush’s former attorney general, rose to give a tribute to Olson. So did William Kilberg, “the labor lawyer of choice for corporate America” and Olson’s law partner at Gibson Dunn. Trevor Potter, the former chairman of the FEC and general counsel to McCain’s presidential campaign, also praised the superstar lawyer—and for good reason. Unlike Jim Bopp, Potter was not a proponent of the libertarian theory of campaign finance law; in fact, he had been responsible for drafting the Bipartisan Campaign Reform Act’s restrictions on corporate money, which Olson had successfully defended in the McConnell case when serving as solicitor general.28
Olson had left the solicitor general’s office in 2004 to return to his lucrative private practice at Gibson Dunn. In part due to his numerous appearances before the Supreme Court as solicitor general, Olson was part of an emerging school of elite Washington lawyers who specialized in arguing at the nation’s highest court. Early America was known to have an illustrious Supreme Court bar made up of luminary advocates, such as Horace Binney, Daniel Webster, William Wirt, and Philip Barton Key—each of whom argued early corporate rights cases. By 1986, however, William Rehnquist, who became the chief justice that year, remarked, “There is no such Supreme Court bar at the present time.” The lawyers who appeared before the justices had typically worked on a case from the beginning, and most had never previously argued at the Supreme Court.29
CITIZENS UNITED’S SECOND ATTORNEY, TED OLSON, WAS THE DEAN OF AN ELITE GROUP OF SUPREME COURT SPECIALISTS WHO TYPICALLY REPRESENTED CORPORATIONS.
Yet while Rehnquist was stating his view, a new Supreme Court bar was being born. The renaissance began in 1985, when Rex Lee, Reagan’s solicitor general, left government to join the law firm of Sidley Austin, where he started an innovative practice focused specifically on the Supreme Court. Within the first two years, Lee had argued eight cases before the justices—at the time, an unheard of number for a lawyer in private practice. Soon all the major law firms in DC were creating specialized Supreme Court practices to compete with Sidley. They hired lawyers who had gone to the top schools, clerked on the Supreme Court, or worked in the solicitor general’s office—and, whenever possible, all three. Olson headed up Gibson Dunn’s practice. Wilmer Hale hired Clinton’s solicitor general, Seth Waxman. Kirland & Ellis brought on Ken Starr, of future Whitewater fame. Among the most successful of these advocates was John Roberts, who, after serving as deputy solicitor general, led the group at Hogan & Hartson and argued thirty-nine cases in the Supreme Court before being tapped to be chief justice.
These lawyers quickly earned a reputation for winning high-stakes cases in the rarefied milieu of the Supreme Court. A Reuters study in 2014 found that the elite Supreme Court lawyers were far more likely than other lawyers to have their cases accepted for review by the Roberts court. Because of their expertise, the members of the Supreme Court bar knew what kinds of arguments appealed to the justices—and they quickly gained the name recognition to impress the justices’ law clerks, who did most of the vetting of potential new cases. Reuters also found that a mere eight lawyers accounted for 20 percent of oral arguments in the Supreme Court. Olson was one of them.30
The elite Supreme Court bar was criticized for being overwhelmingly white and male, but what really united its members were the clients: corporations seeking to vindicate business interests. When Rex Lee founded Sidley Austin’s Supreme Court practice, he sought out paying business clients, such as those companies that were heeding the Powell Memorandum’s advice and litigating to defend corporate interests. Lee brought in “a virtual Who’s Who of the nation’s major industries” from “banking, mining, railroads, electric utility, and telecommunications.” Today, most members of the elite Supreme Court bar work for national law firms that primarily represent corporations. “Working for corporate clients is the bread and butter of our practice,” explained Ashley Parish, a Supreme Court lawyer at King & Spalding. “It’s the nature of the business.” Individuals and minorities rarely benefited from this unique high court expertise. “Business can pay for the best counsel money can buy,” explained Justice Ruth Bader Ginsburg, unlike many ordinary citizens. The rise of the elite Supreme Court bar became another way in which corporations enhanced their sway in court.31
The specialized Supreme Court lawyers do represent individuals on occasion, usually in criminal cases or those dealing with social issues that are not likely to create conflicts of interest with the firms’ corporate clients. Olson, for example, signed on to lead a highly publicized challenge to California’s ban on same-sex marriage just a month after being honored at the Capitol Hill Club. Yet Olson’s typical clients at the Supreme Court were major corporations. He had argued cases on behalf of Philip Morris, DaimlerChrysler Corporation, Medtronic, Inc., Aetna Life Insurance Company, and ARC America Corporation.32
Most members of the elite Supreme Court bar are not driven by ideology but by the practice. The greatest challenge for any lawyer who wants to argue before the Supreme Court is obtaining cases. The court decides only about seventy cases a term, creating heated
competition among the top lawyers for clients. Whether liberal or conservative, Democrat or Republican, the lawyers of the Supreme Court bar thus tended to represent businesses because those were the most frequent litigants willing to pay for their services. The renowned Laurence Tribe, a liberal professor at Harvard Law School who worked opposite Olson in Bush v. Gore, for example, has represented clients like Peabody Energy, General Electric, and the Petroleum Marketers Association of America in the Supreme Court seeking to curtail environmental regulation. Critics say lawyers like these are “hired guns”—a label that, no matter how often unfair, is applied to lawyers because of the nature of their work as temporary fiduciaries. Certainly for most of the elite, specialized Supreme Court lawyers, the proverbial game is the thing.33
Having argued a number of cases in the Supreme Court, Jim Bopp was a member of the elite Supreme Court bar. Yet, as usual, he did not quite fit in with the inside-the-beltway crowd. No other member of this cadre of Supreme Court specialists worked out of Indiana, and Bopp’s clients were not typically corporations. Almost invariably, he represented conservative-leaning advocacy groups, like Citizens United and Wisconsin Right to Life, or individuals on a political mission. Bopp was a true believer—and he preferred to represent clients who furthered his vision of the Constitution. Bopp would not take a case just to have another argument in the Supreme Court. He was seeking to move the law. It was that commitment to the cause that had led David Bossie to hire Bopp rather than someone like Olson to represent Citizens United.34
Yet Bossie, who was present at the Capitol Hill Club reception to honor Olson, began to have second thoughts as he watched Olson receive his Republican Lawyer of the Year award. “I’m sitting there, thinking about my case,” Bossie recalled. “Every Republican lawyer in town is there. Bill Kilberg of Gibson Dunn gets up to introduce Ted and says Ted Olson has won x number of cases and he’s the winningest Supreme Court lawyer. I’ve known Ted forever and I said to myself, ‘How is it I am not in Ted Olson’s hands?’ ”35
A month later, in November of 2008, the Supreme Court agreed to hear Bossie and Bopp’s case—or, rather, Bossie and Olson’s case. Although Bopp had written and filed the paperwork requesting the justices to hear the dispute, Bossie decided he wanted Olson to argue the case instead. Bossie did not feel any special obligation to Bopp, even though Bopp had overseen the case from the beginning and ushered the case to the Supreme Court. “Look, if you get to the Super Bowl with your second-string quarterback and your first stringer comes off the injured reserve list, you put him back in,” Bossie explained, before backtracking. “Not that Jim is second string.” Yet Bossie’s metaphor was revealing. Olson was not the first-string quarterback sitting out because of an injury; he had not even been on the team. Despite Bopp’s expertise in campaign finance, his track record of success at the Supreme Court, and his commitment to Bossie’s cause, the lawyer from Terre Haute was seemingly destined to be thought of as second best when compared to a quintessential Washington player like Olson.36
* * *
SAMUEL ALITO WAS TO the Supreme Court bench what Jim Bopp was to the Supreme Court bar. Both were brilliant lawyers whose work, at the highest levels of the law, brought them to Washington, where neither quite fit in. Both were strong social conservatives whose political philosophies were formed in reaction to the 1960s counterculture. And they would both play central though easily overlooked roles in the Citizens United case. Bopp’s contributions would be obscured because he withdrew from the case after David Bossie hired Ted Olson, unwilling to be second string to Olson. Alito’s influence could be missed because he would not write any opinion in the case. Nonetheless, Alito was the justice most responsible for transforming Citizens United from a relatively minor case chipping away at the Bipartisan Campaign Reform Act to a landmark ruling on the free speech rights of corporations.
Alito’s conservatism was fermented as a young man at Princeton in the late 1960s, which the justice recalled as a “time of turmoil.” “I saw some very smart people and very privileged people behaving irresponsibly,” Alito explained. “And I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community,” a middle-class neighborhood in Trenton, New Jersey. While the radical Students for a Democratic Society were blockading buildings to protest the university’s involvement with the Vietnam War, Alito joined the ROTC. The next year, the university decided to end ROTC training on campus in response to student pressure. “I was more than disappointed that they threw ROTC off campus,” Alito remembered. “It was an unprincipled thing to do.”37
Alito witnessed firsthand how the tumult of the era took a heavy toll on the once prosperous Trenton. More than two hundred businesses were ransacked during a week of riots in April 1968, touched off by the assassination of Martin Luther King Jr. The department stores, furniture shops, and markets that had populated the downtown business district never returned. Without those businesses, Trenton descended into poverty and blight. By 2016, the per capita income of residents was less than $18,000, well below the national average. “The riots killed Trenton,” said historian Charles Webster. Alito agreed, “The city never really recovered.”
Perhaps with the memory of how vital thriving businesses had been to Trenton’s fortunes, Alito leaned decidedly in favor of business interests as a judge. When the Bush administration was looking to replace Justice Sandra Day O’Connor on the Supreme Court, the US Chamber of Commerce was asked to vet potential nominees, a sign of how much political influence the Chamber had gained since Powell’s Memorandum. The Chamber gave Alito high marks. During his fifteen years on the federal court of appeals, Alito had ruled consistently to limit corporate exposure to lawsuits, cabin federal regulation, and narrow employee rights. “He would be a liability restrainer,” concluded Stan Anderson, the legal-affairs lobbyist for the Chamber. Once confirmed to the high court, one of Alito’s first majority opinions was Ledbetter v. Goodyear Tire & Rubber Company, decided in 2007, which limited the ability of employees to recover for discrimination in the workplace. (Congress shortly after revised the law to reverse the court’s decision.) A study by political scientist Lee Epstein, law professor William Landes, and Judge Richard Posner found that Alito voted in favor of business more often than any other justice to sit on the Supreme Court since 1946.38
Alito was the most pro-business justice on what arguably was the most pro-business Supreme Court in decades. Epstein, Landes, and Posner’s study also found that Chief Justice John Roberts was the second most business-friendly justice of the last seventy-five years, and Justices Clarence Thomas, Anthony Kennedy, and Antonin Scalia were all in the top ten. The Roberts court’s tilt in favor of business manifested itself in high-profile cases like Citizens United but also in others that garnered far less attention. “The Supreme Court has altered federal procedure in dramatic ways, one step at a time, to favor the business community,” noted Arthur Miller, a well-known law professor and legal commentator. Indeed, Epstein, Landes, and Posner concluded that the Roberts court was “much friendlier to business than either the Burger or Rehnquist Courts” that preceded it.39
At the first Supreme Court hearing in Citizens United’s case, held in March of 2009, Ted Olson sought only to move campaign finance law one small step in favor of the business community. Unlike Bopp, Olson was not ideologically committed to tearing down the nation’s campaign finance regime. After all, he had previously defended the Bipartisan Campaign Reform Act in the Supreme Court. Olson was a lawyer’s lawyer, and his strategy was to win the case for the Citizens United organization without unsettling the law any more than necessary. That meant Olson would make narrow, fact-specific arguments about Hillary: The Movie that did not threaten to undermine the broader set of rules on corporate money in elections.40
Olson told the justices that the Bipartisan Campaign Reform Act was intended to apply to advertisements, not feature-length documentaries broadcas
t over video-on-demand. Moreover, Citizens United’s documentary was financed with only a trivial amount of corporate money. The court, Olson argued, should simply interpret the Bipartisan Campaign Reform Act to not apply to Hillary: The Movie.
Bopp thought these were the wrong arguments to make. The heart of the case, in Bopp’s view, was the FEC’s determination that Citizens United’s film was about a candidate, not issues. As in Wisconsin Right to Life, Bopp thought it was more important to broaden the law’s exception for speech about issues. Open up that loophole more, and the corporate spending restrictions would be effectively irrelevant; corporations would be able to fund ads about candidates under the guise of issue advertising. By making more narrow, fact-based arguments, however, Olson risked winning the case in a way that Bopp thought “would have made no impact on the law.” A Supreme Court determination that Hillary: The Movie was not covered because it was broadcast over video-on-demand or because it had only a trivial amount of corporate funding would not “safeguard free expression in a meaningful way.” Olson’s arguments would carve out a this-day, this-movie-only exception to the Bipartisan Campaign Reform Act, but the corporate money ban would remain strong and in effect, with the Wisconsin Right to Life loophole made no larger. Such a result would not have satisfied Bopp, a committed soldier in the libertarian war on campaign finance law.41