The Roberts Court: The Struggle for the Constitution (29 page)

Bossie’s right-hand man is vice president and general counsel Michael Boos, a longtime conservative activist. The small board of directors includes Brian Berry, a Texas Republican media strategist; Douglas Ramsey, a Seattle sports marketing executive; Ron Robinson, president of Young America’s Foundation, which calls itself the conservative movement’s principal outreach organization; Washington State GOP chairman Kirby Wilbur, also head of Americans for Prosperity-Washington, the state chapter of the conservative political advocacy
group founded by the Koch brothers; and John Bliss, a Denver attorney who served as chief counsel to former GOP senator Hank Brown.

Citizens United has an annual budget of about $12 million, which is funded mostly by donations from individuals and a small portion by corporations. It also has a lobbying arm—American Sovereignty Project—whose stated goals include complete withdrawal from the United Nations and defeat of the treaty establishing the International Criminal Court; and it has a political action committee (PAC) funded by individual contributions.

The organization’s Supreme Court case had its roots in what Bossie describes as a “revelation” that he experienced in the spring of 2004. That May, the Cannes Film Festival awarded its highest prize to Michael Moore’s
Fahrenheit 9/11
, a documentary critical of President George W. Bush, the war on terror, and news media coverage. The film became the highest-grossing documentary of all time.

“You had this new film coming out and they launched it at a film festival to take the world by storm,” recalled Bossie. “It was an anti-Bush screed trying to influence the election. I woke up and said, ‘Why the hell don’t we do that?’ ”

There were at least several reasons: Citizens United did not know how to make a movie, was not sure it could afford it, and did not know anyone in Hollywood.

“We had a list of reasons as long as your arm on why it couldn’t be done,” he added. “On the other hand, I’m a political guy. When you’re running a campaign and your opponent puts up a thirty-second commercial against you, what do you do? Put up a thirty-second response!”

Bossie had not seen the movie, but he had seen the thirty-second commercials promoting it on television. The ads, he believed, were terrific, better than anything that the Democratic presidential candidate John Kerry had offered in his own campaign.

As he and Boos discussed making their own movie and ads, they decided first to go after Moore’s ads. In June 2004, they filed a complaint
with the Federal Election Commission, charging that Moore’s ads violated the federal Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act, after its two chief sponsors, John McCain of Arizona and Democratic senator Russell Feingold of Wisconsin.

The McCain-Feingold Act represented a long and hard-fought effort by its two named senators and reform groups to regulate and restrict the flow of special interest money into federal elections. Before Congress passed the act, federal law prohibited corporations and unions from spending their general treasury funds on certain election-related activities. Instead, corporations and unions were permitted to create separate political action committees, funded by individual contributions, which were limited in amount, and to spend those monies on election activities.

In the Supreme Court’s landmark
Buckley v. Valeo
campaign finance ruling in 1976, the justices said the ban on spending general treasury funds applied only to “express advocacy” by corporations and unions, for example, activities using the magic words “vote for” or “vote against” a particular candidate. But in the 1990s, so-called issue ads began appearing during campaigns. Some were genuine issue ads addressing topics of public concern. Others were sham issue ads clearly designed to influence an election, but they went unregulated because they avoided using the magic words. For example, the ad would express a viewpoint on a political issue and then urge voters to contact Senator
X
and tell him “what you think of his vote,” a vote that opposed the ad’s viewpoint. There were no limits on how those advertisements were financed and no disclosure was required. As a result, millions of dollars from corporate and union treasury funds financed campaign advertising through the sham issue ad loophole.

The McCain-Feingold Act tackled that loophole and others. The act contained a provision (Section 203) barring corporations and labor unions from using their general treasury funds to pay for “electioneering communications” during specific periods leading up to primary and
general elections. The ban applied to broadcast, cable, or satellite communications that featured a candidate for federal office and could reach 50,000 people thirty days before a primary and sixty days before a general election.

The act also contained two provisions intended to reveal who and how much was behind the funding for electioneering communications. Under the disclosure requirement, any corporation or union that spent more than $10,000 to produce or air these communications had to report to the FEC the names and addresses of those contributing $1,000 or more. And under the disclaimer requirement, the broadcast had to say who was responsible for the content. Corporations and unions could still take the alternative funding route—using their political action committees to pay for these electioneering communications.

In 2003, the Rehnquist Court upheld the constitutionality of key parts of the act, including the electioneering provision, by a 5–4 vote in
McConnell v. Federal Election Commission
(Kentucky GOP senator Mitch McConnell challenged the act). That decision also reaffirmed a 1990 ruling in another case—
Austin v. Michigan Chamber of Commerce
—which had upheld a state ban on independent campaign expenditures by corporations. Justice Sandra Day O’Connor was key to the outcome in the
McConnell
decision. Both the electioneering provision and the 1990
Austin
decision would play key roles in the ultimate fate of Citizens United’s challenge in the Supreme Court.

But that challenge was still four years away as Bossie and Boos examined the 2004 schedule for the airing of Moore’s ads for
Fahrenheit 9/11
. When they found that some were listed for the law’s blackout periods, they complained to the Federal Election Commission. They charged that the ads would violate the law’s prohibition against the broadcast of corporate communications mentioning candidates’ names in the sixty days preceding a general election. The movie’s distributors responded that ads airing after July 30—thirty days before the Republican National Convention in New York City—and sixty days before Election Day, November 3, would exclude clearly identified presidential or vice-presidential
candidates. Instead, the ads would focus primarily on audience and critical reaction to the film.

The FEC rejected Citizens United’s complaint, saying it was based on “mere speculation.” There was “no reason to believe [Moore] violated the Act because the film, associated trailers and website represented bona fide commercial activity, not ‘contributions’ or ‘expenditures’ as defined by the Federal Election Campaign Act.”

Bossie, however, viewed the result as a victory because the movie’s distributors had decided, in response to the complaint, not to show any presidential or vice-presidential candidates in the ads. “I think they did it because the lawyers at Lionsgate and the Weinsteins—huge, enormous Hollywood entities—they didn’t know how to deal with the Federal Election Commission,” speculated Bossie. “That tells you what the fear of the federal government can do to even Hollywood powerhouses. What kind of violation is it? Is it a criminal violation or a civil violation? What are the fines? If you’re going to spend $10 million on an ad buy, it could be a $10 million fine.”

Bossie and Boos reveled in their “victory.” At the same time, they were planning to make their first movie.

Citizens United was preparing a book about Democratic presidential candidate John Kerry and wanted to do a movie on the candidate as well. Bossie and Boos approached the FEC for an advisory opinion on whether they could advertise the movie and the book if the content referred to Kerry or Bush. The commission said no because the film and ads for both the film and the book would be “electioneering communications.” It also said that Citizens United could not claim any of the law’s exemptions, including a media exemption, because this was its first movie and it did not produce movies in its ordinary course of business, according to Boos.

“So we went out and started making movies,” said Boos.
⁴

They installed production equipment in the basement of their row house and dipped into the organization’s fund for costs. They responded to
Fahrenheit 9/11
with
Celsius 41.11: The Temperature at Which the Brain
Begins to Die
. Next came
Broken Promises
, on the United Nations. And they targeted the American Civil Liberties Union in
ACLU: At War with America
and illegal immigration in
Border War
.

By the time the next presidential election cycle began, Citizens United had made at least four films and had created its own distribution system. It was ready to go back to the FEC, this time for its biggest and most controversial movie.

“By 2007, everybody in America—to quote John McLaughlin with metaphysical certitude—knew Hillary Clinton would be the nominee for president,” said Bossie. “The bottom line is we started to put into production a very big, very expensive, long-term investment in a film on and about Hillary Clinton. We did it to go back to the FEC and say, ‘You said a couple of years ago why we can’t do this. Now why not?’ ”

Bossie had to raise a substantial amount of money to fund the movie and the advertisements that would promote it. He viewed as an obstacle the law’s requirement that he disclose the sources of and the amounts of funds contributed to the project.

“We wanted to do ads,” recalled Bossie. “That was the whole premise. As far as Moore’s documentary was concerned, yes, the movie was seen by a lot of people, but tens of millions more people saw his ads, and through his ads, the movie entered the popular culture and was used to educate people. Forget the film was full of lies and deceit.”

Hillary: The Movie
was a brutal takedown of Hillary Clinton as a potential president. Bossie planned to distribute it through theaters, video-on-demand broadcasts, and DVD sales in all of the early presidential primary states. He also had produced three television ads for the movie.

Bossie wanted to use the organization’s general treasury funds to pay $1.2 million to a cable television consortium to make his movie available for free download to “on demand” subscribers. He could have used funds contributed to Citizens United’s political action committee and avoided problems with the corporate electioneering provision, although he still would have to disclose the sources of those contributions. Instead, he chose to use the organization’s general treasury monies, which included
some corporate funding. He and Boos feared that the film would violate the law’s ban on corporate-funded electioneering communications and that they would be subject to civil and criminal penalties.

The two men decided to file a federal lawsuit arguing that the ban on corporate electioneering communications and the law’s disclosure and disclaimer requirements were unconstitutional as applied to the Hillary movie and its three ads. But first they needed to find a lawyer willing to take on the challenge. In 2007, as they worked through their strategy, Bossie recalled, not many lawyers were willing to challenge the federal law which the Supreme Court had upheld just four years earlier. He interviewed several lawyers in his office, he said, including Republican superstar litigator Theodore Olson of
Bush v. Gore
fame.

“I told them my theory and I don’t know if they were underwhelmed, but nobody showed a passion,” said Bossie. “When you’re dealing with a cause-oriented outcome, you want whoever you hire to be passionate about it. When I’m interviewing these people, what I’m looking for is who is going to go hammer and tong for us, who is going to fight every step, every half step, who is going to be forward-leaning, not wishy-washy.”

And above all, they wanted to get to the Supreme Court. “That was definitely part of the strategic thinking,” he emphasized. “We felt we had a unique twist: the law’s application to a movie. This case would have to be decided by the Supreme Court whether on an appeal by us or an appeal by the FEC.”

And when the case did get to the Supreme Court, the justices would not be examining or writing on the nearly clean slate that confronted them in the Second Amendment gun case.

•  •  •

The first federal campaign finance law was enacted in 1867, but it was a very narrow law that simply barred federal officials from soliciting contributions from Navy Yard workers. The modern era of campaign finance legislation really began with the Tillman Act of 1907.
⁵
The law
barred direct contributions by corporations and national banks to federal campaigns. The Tillman Act was the point of reference used by President Barack Obama in his 2010 State of the Union address when he criticized the Roberts Court for reversing a “century of law” and opening the “floodgates” to corporate spending in elections because of the justices’ ultimate decision in
Citizens United
.

The Tillman Act was sponsored by Senator Benjamin (“Pitchfork Ben”) Tillman, a white supremacist and Democrat from South Carolina. His motives were far from pure in proposing the 1907 law. Tillman wanted to punish the Republican Party for imposing Reconstruction on the South. At the same time, however, public support for reform had been growing since the 1896 presidential campaign between Republican William McKinley—the recipient of allegedly unethical corporate contributions—and William Jennings Bryan. There were rumors and charges of bribery in that election. Although a Republican and a beneficiary of corporate contributions, Theodore Roosevelt in 1904 ran for president on a clean government platform. After his election, Roosevelt, with support from the progressive National Publicity Law Association and other grassroots groups, pushed for campaign finance reform, and the result was the Tillman Act.