The Oath (26 page)

Bossie was determined to take the next step: an appeal to the Supreme Court. But first he had a tough decision to make. Whom should he hire as his lawyer?

Bossie may have arrived in Washington as a flamethrowing outsider, but over the previous decade he had become part of the conservative establishment. He knew that Bopp had just won the
Wisconsin Right to Life
case before the justices, but he also recognized that his own financial life, and potentially his place in history, was on the line in the
Citizens United
case. Did he want to leave his fate in the hands of a lawyer from Terre Haute?

Bossie checked with some of his mentors in Republican law and politics. He called Michael Chertoff, who had led the Senate Whitewater investigation (and then gone on to be secretary of homeland security); Alice Fisher, a former Bush Justice Department official; Victoria Toensing and Joseph DiGenova, the famous team of married former prosecutors. All their advice was the same.

Hire Ted Olson.

Olson was already a legendary figure in conservative legal circles. Bossie first met him in the nineties, when Ted and his wife, Barbara, were outspoken fellow critics of Bill Clinton. As a private lawyer at the firm of Gibson, Dunn & Crutcher, Olson had argued and won
Bush v. Gore
and was rewarded by President Bush with appointment as his first solicitor general. (Barbara Olson was killed on the plane that crashed into the Pentagon on September 11, 2001.) Olson had argued dozens of cases before the Supreme Court, and he had a great deal of credibility with the justices. He knew how to win. So Bopp was out, and Olson was in.

Olson quickly shifted tactics in the case. As Bossie saw it, Bopp was a cause lawyer whose top priority was to change the law of campaign finance. While Olson supported the conservative movement, he was primarily a litigator devoted to winning one case at a time. In that spirit, Olson tried to narrow the issues in
Citizens United
, so that the Court would not have to take any dramatic steps in order to rule his way. By the time the case reached the Supreme Court,
Hillary: The Movie
had already played in a handful of theaters, so the only legal issue related to Video On Demand. Indeed, the issue was now so small
as to be almost obscure. The McCain-Feingold law prohibited corporate spending on “electioneering” in the period right before presidential primaries. The legal question in the case was whether the law allowed the broadcast of this documentary on Video On Demand during the proscribed period because Citizens United received a small amount of money from corporations.

Olson opened his oral argument on March 24, 2009, with a flourish: “Participation in the political process is the First Amendment’s most fundamental guarantee. Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state. In the case that you consider today, it is a felony for a small, nonprofit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation’s highest office.”

After that bit of rhetoric, Olson made a point of limiting his demands. For Citizens United to win its case, according to Olson, the Court did not have to declare anything unconstitutional. The justices simply had to rule that the McCain-Feingold law (BCRA) did not apply to documentaries or nonprofits. “A 90-minute documentary was not the sort of thing that the—the BCRA—that the Congress was intended to prohibit,” he said. At one point, Scalia seemed almost disappointed by the modesty of Olson’s claim.

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson started.

“You’re saying this—this isn’t covered by it,” Scalia continued.

That’s right, Olson responded. All he was asking for was a ruling that the law did not prohibit the broadcast by a nonprofit corporation. The ninety-minute documentary could run on Video On Demand. If the justices had resolved the case as Olson had suggested,
Citizens United v. Federal Election Commission
might well have been forgotten—a narrow ruling on a remote corner of campaign finance law.

But then the lawyer for the government stood up to defend the FEC’s decision, and a single question changed the case and perhaps American history.

Whenever the federal government is involved in a case before the Supreme Court, the solicitor general handles the representation. In an
age when the reputations of many government agencies have suffered, the office of the solicitor general has remained a symbol of excellence: small, elite, and deeply respected by its most important audience, the justices.

Since the position was created in 1870, some of the most distinguished lawyers in the country’s history have served as solicitor general. William Howard Taft, before he became president and then chief justice, was an early SG, and Franklin Roosevelt put two of his solicitors general, Stanley Reed and Robert H. Jackson, on the Supreme Court. In the sixties and seventies, the office was consecutively occupied by Archibald Cox, Thurgood Marshall, Erwin Griswold, and Robert Bork. Kenneth Starr stepped down from a judgeship on the D.C. Circuit to be George H. W. Bush’s SG.

For all that the solicitor general serves as the public face of the office, and as an important senior political appointee, the career employees act as its principal representatives to the Court. Only about two of the twenty-two lawyers in the office are political appointees, so most move seamlessly from one administration to the next.

Tradition holds the staff to a different standard than the hired guns who generally appear before the Supreme Court. The solicitor general’s lawyers press their position before the Court, but in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. This is why, in many cases, even when the federal government is not a party, the Court issues what’s known as a CVSG—a call for the views of the solicitor general. The lawyers in the SG’s office are not neutral, exactly, but they are more highly respected than other advocates. They dress differently, too, wearing a morning coat, vest, and striped pants when they appear in the Supreme Court.

Malcolm Stewart, the lawyer in the solicitor general’s office who argued the
Citizens United
case, reflected the best of the office. A graduate of Princeton and Yale Law School, he had clerked for Harry Blackmun in the 1989 term. He joined the solicitor general’s office in 1993, and his career soared through three presidencies and more than forty oral arguments. He twice won a John Marshall Award, among the highest honors in the department. Shortly before the
Citizens United
argument, Stewart had been named a deputy solicitor general, the highest rank for a career lawyer.

The justices say that oral arguments rarely make a difference in
the outcome of cases. But that may not have been true in
Citizens United
—because Stewart’s appearance was an epic disaster.

The morning the case began, the justices were in their typical positions. Scalia was on the edge of his seat, ready to pounce. Ginsburg was barely visible above the bench. Breyer was twitchy, his expressions changing with whether or not he agreed with the lawyer’s answer. As ever, Thomas was silent and withdrawn.

Samuel Alito appeared miserable, as usual. Alito liked the job well enough, but he was uncomfortable with its public aspects. He liked reading cases and making decisions. He disliked pomp and bureaucracy. (Alito didn’t even like hiring law clerks. For years, he chose clerks who had worked for him on the Third Circuit, so he didn’t have to interview new ones.) After Thomas, Alito tended to ask the fewest questions. But no one asked better ones. It was easy to tell which way Alito was leaning, because his questions were so hard to answer for the lawyer he was targeting. Alito had radar for weak points in a presentation, and in this case he saw a big hole in Malcolm Stewart’s.

Alito recognized how broadly McCain-Feingold was written, and he wanted to push Stewart down its slippery slope. This was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito asked. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?”

Yes, said Stewart. “Those could have been applied to additional media as well.”

The justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a
book
? Could the government regulate the content of a
book
?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury
funds and could require a corporation to publish it using its PAC.” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a book about a presidential campaign.

Kennedy interrupted. He was the swing justice in many areas of the law, but in campaign finance cases, Kennedy joined the conservatives. Sensing vulnerability on the subject of books, he joined Alito’s assault.

“Well, suppose it were an advocacy organization that had a book,” Kennedy said. “Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

Yes, said Stewart.

But neither Alito nor Kennedy had Roberts’s instinct for the jugular. The chief justice wanted to make Stewart’s position look as ridiculous as possible. Roberts knew just how to do it. He continued on the subject of the government’s censorship of books, leading Stewart into a trap.

“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.

“That’s correct,” Stewart said.

“It’s a 500-page book, and at the end it says, and so vote for X, the government could ban that?” Roberts asked.

“Well, if it says vote for X, it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act provision,” Stewart continued, doubling down on his painfully awkward position.

Through artful questioning, Alito, Kennedy, and Roberts had turned a modestly important case about campaign finance reform into a battle over government censorship. The trio made Stewart—and thus the government—take an absurd position, that the government might have the right to criminalize the publication of a 500-page book because of one line at the end. Still, the justices’ questions raised important issues. Did the McCain-Feingold law in fact permit such an outlandish outcome? Could Congress pass any law to ban a book? And was Stewart right to acknowledge that it did?

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

As for Stewart’s performance, his defenders pointed to the unique role of the solicitor general. A private lawyer could have danced around the implications of the law and avoided making any concession, but Stewart had a special obligation to be straight with the justices, even if the answers hurt his cause. Stewart’s critics—and there were many—said that he had no obligation to try to answer an absurdly far-fetched hypothetical involving the censorship of books. By doing so, according to this view, Stewart wasn’t being honest—he was being foolish. He should have asserted that the federal government had neither the obligation nor the right to stop the publication of a book. Like most arguments about the quality of advocacy, this one had no clear resolution. Evidently, though, the damage to the government’s case had been profound.

Here again, the vagaries of the Supreme Court calendar played a part in the resolution of the case. Like
Wisconsin Right to Life
,
Citizens United
was argued near the end of the term, on March 24, 2009. There was not a lot of time for the justices to reach a consensus before June. At their initial conference, the vote was the same as in
Wisconsin Right to Life
, with Kennedy joining the four conservatives.

A private drama followed that in some ways defined the still new chief justice to his colleagues. Roberts assigned the opinion to himself. Even though the oral argument had been dramatic, Ted Olson had presented
Citizens United
to the Court in a narrow way. According to the Questions Presented in the briefs, the only real issue in the case was whether the McCain-Feingold law applied to a documentary, presented on Video On Demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say as much, and no more.

At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence that said the Court should have gone much farther. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut the Tillman Act prohibitions on corporate giving to campaigns. But after the Roberts and Kennedy
drafts circulated, the conservatives began rallying to Kennedy’s more expansive resolution of the case. Roberts proposed to withdraw his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.

The new majority opinion—which transformed
Citizens United
into a vehicle for rewriting decades of constitutional law—shocked the liberals. Stevens assigned the main dissent to Souter, who was in the last weeks of his tenure on the Court. (He was actually working on the opinion when he announced his departure.) The Kennedy opinion reflected everything Souter had come to loathe about the Roberts Court—its disrespect for precedent, its grasping conservatism, its aggressive pursuit of political objectives. Worse yet, Roberts’s approach to
Citizens United
contradicted a position he had taken earlier in the term. At the argument of a death penalty case known as
Cone v. Bell
, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the briefs. Now Roberts—the chief justice—was doing precisely the same thing to upset decades of settled expectations.