The Oath: The Obama White House v. The Supreme Court

by Jeffrey Toobin

  In the 1974 law, Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and outflows of money. It is not clear that it would have worked as intended, but at least the proposal made a sort of holistic sense. Congress could essentially select a number for the overall price of a congressional (or presidential) campaign and then force candidates to live within that parameter. Buckley ended that system before it even started and imposed a different one of the justices’ own creation. In the justices’ system, contributions could be limited, but expenditures could not. The legislators who designed the law certainly did not think this distinction made sense. Both contributions and expenditures involve political expression, and campaigns clearly need both of them to function. At the same time, a system that sought to limit the power of money in campaigns would have to control both contributions and expenditures in order to make any real difference. (That is what Congress tried to do.) Instead, the Supreme Court’s improvised hybrid drew a distinction where none may have existed, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.

  Buckley v. Valeo created an entirely new area of law. With the vague and imperfect guidance from the Court, the federal government and the states had to construct their systems for regulating campaigns. Concurrently, candidates, their supporters, and their opponents began to act according to their understanding of the law. Buckley dealt only with candidates and elections, but it left unsettled the rules for “issue advocacy”—television commercials that were supposedly designed to change public opinion rather than the outcome of a single election. “Issue advocacy” was much less regulated than campaign spending, but the line between the two was less than clear, and easily exploited.

  The law treated the financing of campaigns and “issue advocacy” very differently. Under Buckley, candidates had to rely only on tightly regulated campaign contributions to pay for ads. But advocacy groups could receive and spend unlimited funds, and issue advocacy advertisements could look a lot like political campaign commercials. Advocacy groups could run commercials saying “Call Joe Congressman and tell him he’s wrong,” and that would not count as a contribution to his opponent. Similarly, groups could avoid federal regulation by preparing “voter guides” that pointed out the contrasts between candidates in clearly partisan ways.

  Like any other major change in the law, the post-Buckley world of campaign regulation prompted a group of lawyers to develop specialties in the new field. The most revealing career was that of James Bopp Jr. Over three decades, Bopp became one of the most important anti-abortion lawyers in America and one of the most vocal opponents of campaign finance laws. Bopp’s twin goals reflected a true symbiosis.

  Bopp was raised in Terre Haute, Indiana, and in 1970 graduated from Indiana University, where he headed the chapter of Young Americans for Freedom, the student group that propelled many Republican careers. He returned to the state to practice law after graduating from the University of Florida law school in 1973, the year of Roe v. Wade. Bopp decided to join the fledgling anti-abortion movement and was hired as general counsel to the Indiana chapter of the National Right to Life Committee. Two years later, Bopp became general counsel to the full National Right to Life Committee—and a key Republican partisan in the elections of 1980.

  Bopp persuaded his colleagues to start a political action committee to give financial support to anti-abortion candidates, and the Right to Life group put out a series of “voter guides” before Election Day. These guides were credited with helping to create the landslide that put Ronald Reagan in the White House and twelve new Republicans in the Senate. The right-to-life voter guides were barely concealed works of advocacy, and the FEC later tried to ban them. Bopp won a First Amendment challenge to the prohibition, and began working actively to challenge campaign finance restrictions as well as abortion rights. Bopp’s dual career was launched.

  Bopp ultimately filed or defended 140 lawsuits around the country, challenging various kinds of campaign finance regulations as violations of the First Amendment. He argued two cases before the Supreme Court, winning one of them, before his friends at Wisconsin Right to Life asked him for help in another case in 2004. It was, in certain ways, similar to the work he had been doing for decades, with one very important exception.

  In 1989, during his first term in the Senate, John McCain was one of the “Keating Five” who participated in unsavory dealings with Charles Keating Jr., a corrupt Arizona financier. McCain was never charged with any wrongdoing, but the humiliation of the experience led him to become a leader in the fight for campaign finance reform. More than a decade of work produced the Bipartisan Campaign Reform Act of 2002 (BCRA), which was sometimes pronounced “bic-ruh” but more often called the McCain-Feingold law. The law passed mostly because of Democratic support. President Bush signed it with great reluctance, early in the morning to avoid a public ceremony, and immediately announced his reservations about its constitutionality. So for the most part, the customary ideological split on campaign finance reform prevailed with McCain-Feingold. Indeed, by the time McCain ran for the Republican nomination for president in 2008, he had all but repudiated the law that bore his name.

  One of the primary targets of the McCain-Feingold law was the increasingly meaningless distinction between candidate advertisements and “issue” advertisements. For many years, corporations and labor unions had spent millions on ads that denounced individual candidates but technically avoided the specific language that turned a commercial into a “campaign” ad. McCain-Feingold sought to address this problem by prohibiting corporate and labor union funding of any broadcast ads mentioning a candidate within thirty days of a primary or caucus or within sixty days of a general election.

  The new law prompted Wisconsin Right to Life to come to Bopp with a problem. The state had two Democratic senators, Russell Feingold and Herb Kohl, who both supported abortion rights. In the run-up to the election of 2004, when Feingold was on the ballot, Right to Life wanted to run radio ads like the following:

  PASTOR: And who gives this woman to be married to this man?

  BRIDE’S FATHER: Well, as father of the bride, I certainly could. But instead, I’d like to share a few tips on how to properly install drywall. Now you put the drywall up …

  VOICE-OVER: Sometimes it’s just not fair to delay an important decision.

  But in Washington it’s happening. A group of senators is using the filibuster delay tactic to block federal judicial nominees from a simple “yes” or “no” vote. So qualified candidates don’t get a chance to serve.

  It’s politics at work, causing gridlock and backing up some of our courts to a state of emergency.

  Contact Senators Feingold and Kohl and tell them to oppose the filibuster.

  Paid for by Wisconsin Right to Life, which is responsible for the content of this advertising and not authorized by any candidate or candidate’s committee.

  The advertisement was designed to criticize Feingold, but it did not specifically discourage a vote for him. In that way, it looked like an “issue” ad, but because it ran before an election, it was prohibited by the McCain-Feingold law. The political priorities of the right-to-life movement were also revealing. The Wisconsin group, which was dedicated to fighting abortion rights, was putting its money behind pushing President Bush’s judicial nominations, which suggests how important federal judges were to the conservative movement. (When President Obama’s judicial nominations were obstructed by Republican senators, there was no comparable energy expended on their behalf by Democrats.)

  Bopp believed the McCain-Feingold ban on issue advertisements violated the First Amendment, but he had a problem. In 2003, in one of the last major opinions of the Rehnquist Court, the justices had upheld the great majority of McCain-Feingold against a constitutional challenge led by Mitch McConnell, a leading Republican in the Se
nate and a dedicated foe of all campaign finance reform. (The case was known as McConnell v. Federal Election Commission.) How could Bopp challenge a law that had already been upheld?

  But the lawyer was fearless. Bopp knew that the 2003 Supreme Court case was a challenge to McCain-Feingold “on its face”—that is, a claim that the law was going to be unconstitutional in all circumstances. A new case would challenge the law “as applied” against Wisconsin Right to Life. He would claim that this specific application of the law violated the group’s First Amendment rights. Bopp didn’t wait around for the FEC (a notoriously slow-moving agency) to challenge his clients. Rather, he decided to bring a preemptive lawsuit challenging the ban on issue advertisements before elections.

  Bopp knew that he had an important advantage over the failed 2003 challenge to the McCain-Feingold law. In that case, O’Connor had voted to uphold most of the law as part of a 5–4 majority. But she was now gone, having been replaced by Alito, so Bopp could count on the more friendly faces of the Roberts Court.

  The Wisconsin Right to Life case was heard on April 25, 2007, the last day of arguments during Roberts’s tumultuous second year as chief justice. It was the year of great conservative ascendancy—of Lilly Ledbetter’s loss, of the approval of the late-term abortion ban, and of Parents Involved, the cases involving the integration of the Louisville and Seattle schools. By the time Federal Election Commission v. Wisconsin Right to Life was argued, all these other cases had already been decided (if not yet announced), so the liberals knew that they would lose. No one was more frustrated than Stephen Breyer.

  A pattern had emerged over Breyer’s years at the Court. He would arrive each fall, after a summer of travel and relaxation, full of the optimism that had been a trademark for the first half century of his adult life. But each year, as the defeats piled up and the Court turned away from him, he would grow more and more discouraged. On this final day of arguments in the fateful 2006–07 term, Breyer was spitting fire—at Jim Bopp.

  What frustrated Breyer in the Wisconsin case was that he thought he had already won this particular battle in 2003, when the Court upheld McCain-Feingold in the McConnell case. Breyer had recently published Active Liberty, a book intended for a popular audience, which celebrated at length the importance of campaign finance reform. Now that achievement, like so many of Breyer’s victories on the Court, looked as if it could slip away.

  Breyer taunted Bopp—which amounted to baiting his conservative colleagues. “If we agree with you in this case, good-bye McCain-Feingold,” Breyer said. “Maybe we should do it up front. That’s what you advocate. Very well. Would you address that? Why should this Court only a year or two after it upholds McCain-Feingold, accept a position that either in fact or in theory overturns that case?”

  Bopp tried to defuse the issue, but Breyer wasn’t having it.

  “That’s what McCain-Feingold was about,” Breyer went on. “They said in today’s world these are the kinds of ads people run just to defeat people. And then they said, moreover, most of the campaign money goes on them. And then they said, moreover, if you let corporations and labor unions contribute to these, well, then they can contribute to the campaign.

  “If you’re prepared to say the Constitution requires us to let corporations and unions buy these kinds of ads, well, how could it be constitutional to have a statute that forbids them to contribute directly to the candidate, something that’s been in existence only since, I guess, 1904?” (Breyer was referring to the Tillman Act of 1907.)

  Breyer could see where the Court was going. If his colleagues were prepared to rule that the modest regulations of McCain-Feingold were unconstitutional, then the whole edifice of campaign finance reform would crumble. Laws that were in place since the beginning of the twentieth century were going to fall, too.

  Bopp could afford to parry Breyer’s questions, because he knew he had the votes. At one point, Bopp said that the ads in Wisconsin were not just to support or oppose candidates in elections but also to change the positions of existing officeholders.

  “People should have the opportunity to engage in grassroots lobbying,” Bopp said.

  “Is that called democracy?” Kennedy asked him.

  “We are hopeful, Your Honor,” Bopp replied. One might argue that television and radio advertisements were hardly “grassroots lobbying,” and one could say elections dominated by those commercials were not necessarily “called democracy.” But those arguments were clearly failing before the Roberts Court.

  In candid moments, justices often remark that outsiders ought to pay more attention to the time of year that any given opinion has been handed down. The Court begins hearing arguments on the first Monday in October, and decisions rendered in November and December are often unanimous or at least the product of good-natured bargaining on all sides. As the year progresses, however, nerves grow frayed and impatience becomes the norm. The issues are harder. There is less negotiating, and there are more separate opinions, which take longer to write. By the last day of the term, especially one as fraught as 2006–07, the justices can barely stand the sight of one another. That tone was reflected in the decision in Wisconsin Right to Life.

  The opinions in the case are a patchwork mess, a typical late-term failure to agree on much of anything. But on the core issue, the split remained the same. Roberts, Scalia, Kennedy, Thomas, and Alito found the restriction on Wisconsin Right to Life unconstitutional; Stevens, Souter, Ginsburg, and Breyer would have upheld the ban on the commercials. Scalia, Kennedy, and Thomas, who had dissented in the McCain-Feingold case in 2003, wrote separate opinions rearguing their position that McCain-Feingold should be struck down. Alito more or less said the same thing.

  That left Chief Justice Roberts to speak for the Court. He was still trying to prove that he was cautious and respectful of precedent, as he had claimed to be during his confirmation hearing. But now he was part of a majority that was gutting a four-year-old opinion and decades more of settled law. Roberts completed this mission with typical finesse, declaring, “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Unlike the others in the majority, Roberts did not explicitly call for overturning McCain-Feingold, but he plainly indicated where the Court was heading. As for the McConnell case, the 2003 decision upholding the law, Roberts wrote, “We have no occasion to revisit that determination today.”

  Today. Today. The sentence was a model of near-total transparency. To those who know the language of the Court, the chief justice was all but announcing that five justices were preparing to declare the McCain-Feingold law unconstitutional. Not today—but, clearly, soon.

  Souter wrote the pained dissent for the liberal quartet in Wisconsin Right to Life and announced at the outset that the Court’s 2003 decision upholding McCain-Feingold was “effectively, and unjustifiably, overruled today.” But that wasn’t true, at least not “today.” For the coup de grâce to be applied to the campaign finance laws of the past century, it would take a charter member of the vast right-wing conspiracy.

  12

  SAMUEL ALITO’S QUESTION

  The most famous television commercial of the 1988 presidential race was not produced by either George H. W. Bush or Michael Dukakis. An independent committee called Americans for Bush ran a commercial featuring Willie Horton, a convicted murderer who had received a weekend furlough from a Massachusetts prison and then committed several grisly crimes. The stark images of the African American perpetrator, as shown in the commercial, caused a sensation. The Bush campaign always claimed it had nothing to do with the ad.

  Floyd Brown was happy to take the credit. A burly native of Washington State, Brown had worked around the fringes of the conservative movement for years. (Like Bopp, Brown got his start in politics through the Young Americans for Freedom, in Brown’s case at the University of Washington.) Brown had mastered the art of setting up a nonprofit, raising money, making a splash, and moving on. When the election was over
, Americans for Bush had obviously outlived its usefulness. So Brown embraced the notoriety that came with authorship of the Willie Horton ad, and founded a new organization. He called it Citizens United.

  At first, Brown worked from the Horton template. He would create highly partisan television commercials and then engage in direct-mail fund-raising to pay to broadcast them. In 1991, for example, Citizens United produced a commercial in support of the nomination of Clarence Thomas to the Supreme Court. (The ads consisted mostly of attacks on the characters of senators who sat on the Judiciary Committee.) With the election of Bill Clinton as president, Citizens United took off in a new direction.

  Brown acquired a sidekick—a recent dropout from the University of Maryland named David Bossie. Crew-cut and intense, Bossie had a passion for conservative politics and, like Brown, an entrepreneurial bent. (A dedicated volunteer fireman, Bossie lived above his local firehouse in Maryland.) In 1992, Brown named Bossie his “chief researcher” and the pair narrowed their focus to the personal and financial affairs of Bill and Hillary Clinton. The duo produced a book tied to the 1992 campaign, Slick Willie: Why America Cannot Trust Bill Clinton.

  Over the next several years, Bossie became, in effect, the agent for various Arkansas figures who claimed they knew of wrongdoing by the Clintons. David Hale, a municipal court judge in Little Rock, was under FBI investigation in Arkansas for misusing federal small business loans. Friends of Hale put him in touch with Bossie. Hale asserted that Clinton was involved in a web of corruption in the state. Bossie, in turn, introduced Hale to various Washington journalists who printed or broadcast his accusations. (Hale’s claims were never verified.) Later, Bossie served as a similar intermediary for stories that raised questions about the White House aide Vince Foster’s suicide.

  Twice during the Clinton years, Bossie left Citizens United to work for Republicans in Congress—first on the Senate investigation of the Clintons’ Whitewater land deal and then for Congressman Dan Burton, an Indiana Republican who was obsessed with Clinton’s alleged misdeeds. (In an effort to show that Foster might have been killed, Burton conducted a demonstration in his backyard where he shot what he referred to as a “head-like object,” which was either a watermelon or a pumpkin.) During Bossie’s tenure with Burton, he became friendly with Clarence Thomas’s wife, Virginia Thomas, who at the time was on the staff of Richard Armey, the Republican leader in the House. Ginni Thomas thought Bossie was a bit extreme in his views. Burton fired Bossie after it was revealed that he had doctored certain transcripts to eliminate exculpatory information about Hillary Clinton. Bossie then went back to work at Citizens United.