The Oath (25 page)

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.

SAMUEL ALITO’S QUESTION

T
he 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.

The careers of Bossie and Brown had been sources of particular interest to Sidney Blumenthal, a journalist who joined the White House staff in 1997. It was Blumenthal who prepared Hillary Clinton for her appearance on the
Today
show, on January 27, 1998, her first interview
after the Monica Lewinsky scandal broke. Schooled by Blumenthal in the ways of Brown, Bossie, and others like them, Mrs. Clinton told Matt Lauer, “This is—the great story here, for anybody willing to find it and write about it and explain it, is this vast right-wing conspiracy that has been
conspiring against my husband since the day he announced for president.”

With the inauguration of George W. Bush, the public profile of Citizens United receded. Bossie, who had become president of the group, thought that it needed a niche to distinguish it from the other conservative organizations in Washington. Bossie’s moment of insight came in 2004, when he saw advertisements for Michael Moore’s movie
Fahrenheit 9/11
. Bossie saw that the documentary was doing a kind of double duty.
Fahrenheit 9/11
and the television commercials promoting it were political salvos against the reelection of President Bush as well as a potential source of profit. (
Fahrenheit 9/11
earned more than $200 million at the box office.) A nonprofit organization, Citizens United had a total budget of about $12 million a year, and the vast majority of those funds came from donations from individuals. A small portion of contributions—about 1 percent—came from for-profit companies. (This turned out to be important.)

Bossie determined to remake Citizens United into a movie studio, to produce conservative documentaries. The first,
Celsius 41.11: The Temperature at Which the Brain Begins to Die
, was a direct response to Moore and not especially successful. But Bossie kept making films, and some found an audience. All had conservative themes, and many were narrated by Newt and Callista Gingrich. They included:
Fire from the Heartland: The Awakening of the Conservative Woman
, starring Michele Bachmann;
The Gift of Life
, against abortion rights (“My mom was raped, and I was almost aborted. My life was spared for a purpose.”); and
Rediscovering God in America
(“There is no attack on American culture more destructive, and more historically dishonest, than the relentless effort to drive God out of America’s public square.”).

In the period leading up to the 2008 election, the presidential candidacy of Hillary Clinton was an irresistible subject for Bossie, given his long history opposing her and her husband. In many respects,
Hillary:
The Movie
was typical of the Citizens United oeuvre. It included news footage, spooky music, and a series of interviews with fierce and articulate partisans. (“She’s driven by the power, she’s driven to get the power, that is the driving force in her life,” said Bay Buchanan, the activist and sister of Patrick, the onetime presidential candidate. “She’s deceitful, she’ll make up any story, lie about anything, as long as it serves her purposes of the moment, and the American people are going to catch on to it,” added Dick Morris. “ ‘Liar’ is a good one,” said Ann Coulter.) Bossie wanted
Hillary: The Movie
to come out in late 2007, to tie it to the presidential election in the way that Moore pegged
Fahrenheit 9/11
to the previous race. Citizens United offered a cable company $1.2 million to make
Hillary
available for free to viewers on a technology known as Video On Demand.

Over the years, Bossie had become familiar with federal election law, and he was concerned that his movie would run afoul of the same law that was at issue in the
Wisconsin Right to Life
case, especially since he planned to run commercials in states holding presidential primaries. The movie and commercials would have multiple purposes: to advance the conservative cause, to hurt Hillary Clinton’s chances for victory, and to make the production a financial success. The question, then, was how the Federal Election Commission would classify
Hillary
and the advertisements for it. Under the FEC rules, if
Hillary
was deemed a work of journalism or entertainment, like
Fahrenheit 9/11
, then Bossie could show it any time he wanted; the FEC had a clear exception for those kinds of works. But if the FEC regarded
Hillary
and its commercials as an “electioneering communication,” that is, “speech expressly advocating the election or defeat of a candidate,” then it could not be broadcast within thirty days of a primary or sixty days of a general election.

Bossie hired Jim Bopp, who, as ever, favored an aggressive tack. He went straight to the FEC to get a ruling. As expected, the FEC ruled that the documentary amounted to an “electioneering communication” and thus could not be broadcast in the period before a primary. Bopp appealed to the federal district court in Washington. A three-judge panel agreed with the FEC, holding that
Hillary: 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.”