by Adam Winkler
“I do recognize that people like Ted Olson, who make their reputation on winning Supreme Court cases, they have different ways of looking at things,” said Bopp. Such lawyers “within the beltway . . . they recognize that they have to win and so they come up with these really narrow grounds for winning just so they can get a ‘W.’ ” Nonetheless, David Bossie did not mind Olson’s narrow reframing of the case. “All I wanted to do was win something,” he admitted. But Bopp, the activist, criticized Olson’s arguments for that same reason. They were, in Bopp’s view, “simply designed to win the case, no matter what.” Olson was a fixer while Bopp was a fighter.42
At oral argument, Justice Antonin Scalia was similarly disappointed with Olson’s narrow arguments. “Wait, are you making a statutory argument now or a constitutional argument?” If the only question was whether the Bipartisan Campaign Reform Act should be read to apply to video-on-demand documentaries with minimal corporate funding, then the case was indeed pretty minor. It was not a case of constitutional significance but one of statutory interpretation—and, because it would likely only impact this one movie, a relatively insubstantial statutory interpretation case at that.43
Scalia was one of the most influential justices in American history, in large part because of his tireless advocacy, both in public and in his opinions, on behalf of originalism—the philosophy that says judges should interpret the Constitution to preserve the original understanding of those who drafted and ratified it. Although there is little evidence the Framers meant to protect the rights of corporations, Scalia nonetheless believed that campaign finance laws like the Bipartisan Campaign Reform Act that burdened corporate speech were unconstitutional. Indeed, Scalia’s votes in corporate political speech cases owed less to founding-era history than to intellectual currents swirling around the University of Chicago in the 1970s, when Scalia was a law professor there before joining the bench. The University of Chicago was the hub of the law and economics movement, which employed neoclassical economic theory to understand legal rules. Law and economics assumed that people were rational actors who usually maximized their own self-interest and that government regulation typically led to inefficient allocation of resources. Like the libertarians opposed to campaign finance law, law and economics adherents thought that if the government stayed its hand, people in a free market would gravitate toward the best, most productive outcomes. In the late 1970s and early 1980s, an era of deregulation and business backlash against big-government progressive reform, law and economics had tremendous appeal.44
When it came to corporations, law and economics promoted markets, not government regulation, as the proper way to prevent corporate wrongdoing. Adherents of this philosophy rejected the notion that corporations were entities created by the state that ought to be subject to significant regulation. Instead, they viewed the corporation as a “nexus or hub of privately structured contractual arrangements” among stockholders, creditors, employees, and managers, all of whom participate voluntarily in the enterprise. Government generally should not interfere with these voluntary contractual relationships by, say, enacting laws designed to protect stockholders. Instead, such matters should be left to the contracting parties to negotiate among themselves. If stockholders cared enough about some form of protection—such as preventing executives from contributing corporate money to candidates—they would bargain to obtain it. If that was too costly, stockholders unhappy with management’s political contributions could simply sell their shares.45
Although Scalia never claimed to be a proponent of law and economics, distinct traces of this free market approach to corporations can be found in his opinions on corporate money in politics. In Austin v. Michigan Chamber of Commerce, for example, Scalia dissented, arguing that the Michigan corporate spending restriction was an unconstitutional, “paternalistic measure to protect the corporate shareholders of America.” Such fatherly oversight by the government was unwarranted, in Scalia’s view, because people voluntarily buy stock in corporations knowing that management can do whatever it wants to pursue profit. “That,” he wrote, “is the deal.” Corporations, Scalia said, were “voluntary associations,” and a shareholder dissatisfied with management decisions, such as whether to spend corporate money on political ads, always had the “ability to sell his stock.” For Scalia, as for proponents of law and economics, the answer was not government regulation but the capital markets.46
In Citizens United’s case, Scalia seemed dissatisfied that these larger questions about the constitutionality of campaign finance restrictions on corporations were not on the table. Olson was asking the court instead to rule more narrowly that the Bipartisan Campaign Reform Act simply did not apply to Citizens United’s movie at all. Hillary: The Movie was not the type of “electioneering communication” Congress had intended to cover. “You’re saying that this isn’t covered by [the law],” asked an exasperated Scalia. “Yes,” replied Olson.47
Alito, seated three seats to Scalia’s left, saw the case in broader terms. After Olson sat down, Deputy Solicitor General Malcolm Stewart, a veteran lawyer in the solicitor general’s office, rose to defend the FEC’s determination that Hillary: The Movie was the equivalent of an election ad. Alito, whose shrewdness often led him to ask the most difficult questions that cut right to the heart of an advocate’s case, had one prepared for Stewart. If Congress could prohibit an ad mentioning the name of a candidate because it was financed with corporate money, Alito asked, could Congress also prohibit the publication of a book mentioning a candidate if it were financed with corporate money?
Stewart had argued more than forty cases before in the Supreme Court and yet, at that moment, the lessons of his experience temporarily abandoned him. Yes, Stewart replied. Restrictions on corporate spending, such as those in the Bipartisan Campaign Reform Act, “could have been applied to other media as well.” There was an audible gasp in the courtroom. “That’s pretty incredible,” replied Alito. “The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?” Suffice to say, it is never the right answer in the Supreme Court to say the government can ban books.
Stewart realized that he had been caught in Alito’s trap and immediately tried to clarify that all he meant was that the government could regulate how campaign material was financed. “I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using” PAC funds. That is, after all, what the Bipartisan Campaign Reform Act did. The law did not ban election ads by corporations so much as dictate such ads be financed through a PAC. And, Stewart noted, the Bipartisan Campaign Reform Act explicitly exempted book publishers and other media outlets, applying only to a narrow class of “electioneering communications” broadcast over television or radio in the weeks before an election. Alito’s hypothetical, no matter how dramatic, was far removed from the case at hand.
The damage, however, had been done. One justice after another pushed Stewart to explain how the First Amendment could allow the government to ban books simply because those books were published by a corporation. “If we accept your constitutional argument,” Chief Justice Roberts said, “we’re establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it.” Suddenly, Citizens United was no longer a case about the applicability of the Bipartisan Campaign Reform Act to Hillary: The Movie. Now the issue was whether the government could ban books. Olson had tried to narrow the issues as much as possible, willing to eke out a victory. Alito opened the case back up, making it instead about broad, foundational questions of free speech and censorship.
As Alito transformed the case, Jim Bopp watched silently from the back of the courtroom. Although the hard wooden benches were not nearly as inviting as the velvet cushions that comforted the society women who frequented the court in the Gilded Age, Bopp had been too committed to the cause to stay away. “I’m
sitting there, answering the questions in my mind,” he recalled. Even though Olson, not Bopp, stood at the podium on behalf of Citizens United, Bopp’s voice still resonated in the courtroom. It was in fact Bopp who had first called the justices’ attention to banning books. In his original filing asking the justices to hear the case, Bopp had colorfully warned that the government’s argument would allow “high-tech ‘book burnings’ without restriction.”48
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WHEN THE JUSTICES MET in conference later that week to decide the case, the four liberal justices were prepared to rule against Citizens United and the five conservative justices, including Roberts and Alito, voted in Citizens United’s favor. As chief justice, Roberts had the authority to determine who would write the court’s opinion, and he kept it for himself. The draft he circulated weeks later followed Olson’s narrow arguments, holding that a feature-length documentary financed with only a trivial amount of corporate money and aired over video-on-demand was not covered by the Bipartisan Campaign Reform Act. Roberts, a former member of the elite Supreme Court bar, saw this case as one to move the law incrementally.
Roberts’s draft opinion was consistent with the view he expressed around the time of his confirmation about the proper role of the court in a democracy. Then Roberts had extolled the virtues of narrow rulings that respected as much as possible the judgments of Congress and the court’s own precedent. The court’s legitimacy, he said, was threatened by sweeping 5-4 decisions on high-profile, controversial issues that took on a partisan tint. Instead, Roberts expressed the desire for his legacy to be that of a chief justice who, like a baseball umpire, simply called “balls and strikes.” Such an approach, he said, would promote consensus and keep the court out of the political thicket. Roberts was ideologically conservative but, like Olson, he preferred a long game with incremental movement. “If it is not necessary to decide more to a case,” he said, “then in my view it is necessary not to decide more to a case.”49
Soon after Roberts was confirmed, Scalia was asked what he thought about Roberts’s goal of unifying the court around narrow rulings that avoided controversy, prompting the outspoken jurist to laugh, “Good luck!” His skepticism was borne out in the Citizens United case. The other justices in the majority—Alito, Scalia, Thomas, and Kennedy—pushed back against Roberts’s halting approach. They circulated an opinion of their own, written by Kennedy, that went much further than Roberts’s. Although many liberals hailed Kennedy for his progressive rulings in favor of gay rights, the same libertarian impulse that led him to oppose bans on gay sex and same-sex marriage also translated into a strong skepticism about campaign finance reform. Over the course of his more than two decades on the court, Kennedy had voted consistently to strike down limits on money in politics. He had dissented in both Austin and McConnell.50
Kennedy, Alito, and the others wanted to go broad and declare that the Bipartisan Campaign Reform Act’s corporate money provisions violated the First Amendment. The court, they believed, should not focus on the narrow question of whether the Bipartisan Campaign Reform Act applied to this one movie but on the bigger question of whether corporate political expenditures could be limited at all. They shared Jim Bopp’s libertarian theory of campaign finance and wanted Roberts to join them in overturning Austin and McConnell. Their draft opinion was a bold corporationalist statement on the expansive rights of corporations that blew well past anything Olson had requested. After some deliberation, Roberts, whose narrow opinion had not built the type of consensus he might have hoped, decided to go along with his less compromising colleagues. He withdrew his narrow opinion and signed on to their precedent-shattering one, which promised to fundamentally revamp the laws regulating money in politics.51
Roberts’s switch infuriated the court’s liberal justices, especially David Souter. A taciturn, mild-mannered New Englander who habitually ate the same lunch nearly every day—a cup of yogurt and an apple—Souter abandoned his usual congeniality and wrote a scathing dissent. He was not upset that the side he favored was going to lose; Souter, who for eighteen years was on the losing side of many Rehnquist and Roberts court decisions, was already used to that. The majority, in his view, was violating the court’s well-established traditions governing how cases are to be decided. One long-standing norm on the court was that the justices would not reach questions that had not been briefed and argued by the parties. This ensured the justices had a full record and the benefit of adversarial argument before making decisions. Olson had not asked the court to decide whether the Bipartisan Campaign Reform Act provisions were unconstitutional in their entirety. Nor had he asked the court to overturn Austin and McConnell. Neither had the lower court developed an evidentiary record on issues relating to those broad constitutional questions. Souter accused the majority of simply deciding, without following the proper procedures, sweeping and controversial questions of law—contrary to the minimalist, consensus-building approach Roberts had promised during his confirmation. Souter, who was planning to retire that summer, would leave the court with a parting shot that let everyone know Roberts had betrayed his own legacy.
After spirited debate among the justices, Roberts and the conservative justices withdrew their far-reaching opinion. At the same time, they refused to back down completely. The justices agreed instead to hold another hearing in the case, only this time the lawyers would be instructed specifically to focus on whether the restrictions on corporate expenditures were constitutional. If the liberal justices thought the larger constitutional questions should not be decided absent briefing and argument, then the answer was to brief and argue them. A second hearing in the Citizens United case was slated for September of 2009.
The outcome, however, was a fait accompli. All the justices knew that there were now five votes to overturn Austin and McConnell and invalidate the Bipartisan Campaign Reform Act’s restrictions on corporate funding of campaign ads. Justice Stevens would later write woefully, “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.”52
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WHEN THE CITIZENS UNITED case returned to the Supreme Court in September of 2009, signs of progress in America’s historic civil rights movements were everywhere. Pathbreaking women’s rights lawyer Ruth Bader Ginsburg, who had won some of the earliest successful sex discrimination cases in the Supreme Court, was on the bench. She was joined by Clarence Thomas, only the second African American justice, and the first Latina justice, Sonia Sotomayor, who filled the seat vacated over the summer by Justice Souter. Citizens United was Sotomayor’s first case as a justice. It was also the first Supreme Court case for Elena Kagan, who had been the first woman dean at Harvard Law School and was now serving as the first woman solicitor general. Although she had no prior experience as an appellate advocate, she would have to hold her own in the highest court in the land against formidable adversaries: Olson, the dean of the Supreme Court bar, and Floyd Abrams, a renowned First Amendment lawyer who had argued for a libertarian approach to free speech in a number of landmark First Amendment cases and was now appearing on behalf of Senator McConnell. Unfortunately for Kagan, the Citizens United case presented its own form of glass ceiling. No matter how well she performed her job, she was bound to lose.
The return of Citizens United was also a sign of how much progress had been made by another, lesser-known civil rights movement—the one for corporations. It was exactly two hundred years after Horace Binney and the Bank of the United States brought the first corporate rights case to the Supreme Court in 1809. In those years, corporations had gained the protections of nearly all of the most significant individual rights provisions in the Constitution: rights of property, contract, and access to court; the right to be free from unreasonable searches and seizures; equal protection and due process; the right against double jeopardy and the right to counsel; the right to trial by jury; freedom of the press and freedom of association; commercial
speech rights and even a limited right to speak on electoral politics under Bellotti and the union PAC cases. Although corporations had not won the right to vote, with the Citizens United case they were on the precipice of winning the right to use their amassed resources to influence candidate elections.
On paper, it did not appear to be an auspicious time for Ted Olson and the Citizens United organization to argue for expansive constitutional rights for corporations. The country was still reeling from the Great Recession, and public anger was directed at the nation’s banks and other financial institutions that had received massive bailouts after speculative investments in subprime mortgage derivatives, popular but opaque securities with hidden risks, went bust. The firms, like the East India Company in the colonial era, were deemed “too big to fail.” The crisis helped propel Barack Obama into the White House, and the new president proposed a number of monetary policies and reforms to stimulate the economy. These measures, coupled with the bailouts, led to a backlash among grassroots conservatives, who staged protests around the country in early 2009 calling for smaller government and lower taxes. The protestors called themselves the “Tea Party,” borrowing the name from the famous Boston rabble rousers who threw overboard the tea of the East India Company, which had also been the recipient of a massive government bailout. The modern-day Tea Party quickly became the political engine driving the Republican Party, railing against not only Obama and the bailouts but also “RINOs”—Republicans In Name Only—such as the Washington party elites who claimed allegiance to conservative principles but sacrificed them to win the admiration of the mainstream media.53
Even if the cultural zeitgeist was marked by renewed hostility to big business, inside the Supreme Court the justices had not changed much at all—save for Sotomayor’s replacement of Souter—and the votes in the Citizens United case had effectively been cast. Nevertheless, the representatives of the women’s and minority rights movements’ progress took aim at constitutional protections for corporations. Ginsburg asked Olson if there was any difference between the First Amendment rights of individuals and corporations. Referencing the Declaration of Independence, she noted that a “corporation, after all, is not endowed by its creator with inalienable rights.” True, replied Olson, but the court had previously held that corporations had First Amendment rights in cases like Bellotti and Grosjean v. American Press Company, the Louisiana newspaper tax case that first held media corporations had freedom of the press.54