The Roberts Court: The Struggle for the Constitution (33 page)

Finally, he argued that the law’s disclosure, reporting, and disclaimer requirements were unconstitutional as applied to the ads for the movie. Because the lower court had found that the ads were not express advocacy or its functional equivalent, the government had no compelling or lesser interest in applying the requirements to the ads.

When the deadline came for the government’s response, Barack Obama had won the presidency and Bush solicitor general Gregory Garre had left office. Edwin Kneedler, the highly regarded senior career deputy solicitor general, stepped into the role of acting solicitor general. He and Deputy Solicitor General Malcolm Stewart came out swinging in their response.

From beginning to end, the message of
Hillary: The Movie
is that
“Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of President of the United States,” they told the Court. The film repeatedly impugned her honesty and character, they added, and allegations in the film were tied to her fitness for elective office. There was no question that the movie was “the functional equivalent” of express advocacy and subject to the electioneering communications provision.

Distributing the movie as video on demand did not give it a special status or exemption from the law, the government also argued. Paying a cable group to distribute the movie as video on demand was no different from buying broadcast time for an infomercial as had been done by political candidates for years, it told the Court. And the public’s interest in full information about participants in elections was directly implicated by broadcast ads, it added, whether those ads were considered campaign advocacy or not.

Outside the Court, the case was slowly attracting attention. Ten amicus briefs supporting Citizens United were filed by conservative, libertarian, and business organizations, such as the Cato Institute and the U.S. Chamber of Commerce. The government drew support from two: a brief by Senators McCain and Feingold and former Representative Martin Meehan of Massachusetts, and another by the Center for Political Accountability.

While giving the Court a menu of reasons to rule narrowly for his client, Olson had planted the seed for a bolder step, but the question remained whether Roberts and Alito would take it.

•  •  •

As the March 2009 argument date moved closer for Olson and his legal team, the term itself was gaining momentum. Race was back on the docket in two cases, one involving voting rights and one concerning employment discrimination. And there was another campaign finance case, an unusual challenge that would play a small role in Citizens United’s case and would inspire John Grisham’s novel
The Appeal
.

The campaign finance case involved judges, money, bias, and a bitter battle between competing West Virginia coal companies. Hugh Caperton of Harman Mining Co. won a $50 million jury award in 2002 against Don Blankenship, president of Massey Energy, because of Blankenship’s interference with Caperton’s coal contracts. Caperton lost his business and almost everything he owned and his employees lost their jobs.
⁵
(Blankenship and Massey Energy owned the Upper Big Branch mine where an explosion in 2010 killed twenty-nine miners, the worst U.S. coal-mining disaster since 1970.)

Between the jury verdict and Blankenship’s appeal in 2006, a closely fought campaign unfolded for a seat on the West Virginia Supreme Court between the incumbent justice and an attorney, Brent Benjamin. Blankenship spent $3 million in that contest, most of which went to an organization known as “And for the Sake of the Kids.” The organization’s goal was to defeat the incumbent, and about $517,000 of the $3 million was spent in direct support of Benjamin.
⁶

The high-stakes contest attracted national and state media attention. And the local media reported Blankenship’s contributions and noted his likely appeal of the $50 million jury verdict to the state supreme court. Brent Benjamin was elected and seated in 2004.

When Blankenship’s appeal came before the state appellate court, Caperton twice moved to recuse Benjamin because Blankenship’s “extraordinary” financial support for Benjamin’s campaign created an unacceptable appearance of impropriety. The court denied Caperton’s first motion and then voted 3–2, with Benjamin joining the majority, to reverse the $50 million verdict won by Caperton. Caperton made a second recusal motion as part of his request for a rehearing. Benjamin again refused to step aside, and then in the role of acting chief justice because of two other justices’ recusals related to Blankenship, appointed two state circuit judges for the rehearing. He and his colleagues again voted 3–2 to reverse the verdict.

Caperton, represented by Olson, appealed to the U.S. Supreme Court.
⁷
During his argument to the Court, Olson told the justices that
the Constitution’s guarantee of due process required a fair trial in a fair tribunal. Fairness means not only the absence of actual bias, he added, but the absence of the appearance of bias, the probability of bias, or the likelihood of bias. West Virginia’s Justice Benjamin should have stepped aside from Blankenship’s appeal because of the probability of bias.

Scalia, Roberts, Kennedy, and others pushed Olson hard for a concrete standard or test for judges’ recusals in these situations and questioned whether the issue should be left to the states to handle through their campaign finance laws instead of creating a constitutional standard.

“You really have no test other than probability of bias,” said Scalia. “We can’t run a system on such a vague standard.”

Olson countered, “The circumstance in this case involves the appearance of judges being bought.” The Court has repeatedly said actual bias, he added, is impossible to prove. “That’s why the appearance of probability of bias is so important to the respect that we need to have for the judicial system.”

Scalia, openly hostile to restrictions on money in elections, surprisingly suggested that state limits on spending and contributions to political committees could solve the due process problem. And Roberts wondered if that approach would “constitutionalize McCain-Feingold at the state level.”

The case was not about the First Amendment or McCain-Feingold, which figured in Citizens United’s appeal, but it was about independent campaign expenditures and the appearance of corruption, or more specifically, bias. Just how the Roberts Court answered the constitutional question, thought those watching it closely, could shed light on what the justices might do in
Citizens United
.

Olson had less than a month between his argument in
Caperton
and the arguments in
Citizens United
, but he again was no stranger to campaign finance law, having led the government’s defense of McCain-Feingold in the
McConnell
challenge six years earlier. His interest in that area of the law actually began in the late 1960s when, as a young lawyer, he started getting involved in politics. William French Smith, the senior
partner at Olson’s law firm and later President Ronald Reagan’s first attorney general, would send Olson out to give speeches for Republican candidates.

“It was a whole lot simpler back then,” recalled Olson. “Campaign finance is fundamental to how we elect people today. You have this tension between people who want good government and don’t like elections being overwhelmed by money. On the other hand, I believe you’ve got to let the process work. If there is any reason for the First Amendment at all, it isn’t about protecting naked dancers but protection for talking about government and who shall lead this country.”

Citizens United’s case was particularly interesting to him, he added, because it involved the First Amendment and corporations.

Like many lawyers who appear regularly in the Supreme Court, Olson had a routine for getting ready for arguments. He collected binders of all of the relevant cases and binders for the briefs, with a set at his office and a set at his home. He read everything in the binders, took notes in longhand, and prepared a list of questions. Three other lawyers from his firm—part of Olson’s team—did the same.

“I had some of the younger lawyers prepare an analysis of each of the justices based on how they might come out, from most likely to least likely to vote for us, and in several pages on how they came to that conclusion,” said Olson. “I ultimately have thirty pages of analysis so I can focus on each of [the justices].” And as with all of his Supreme Court cases, he did two to three mock “moot” court arguments to get ready.

On the government’s side, Deputy Solicitor General Malcolm Stewart, a former clerk to Justice Harry Blackmun, was handling the argument in defense of the law’s corporate financing ban. Stewart, a career attorney in the Office of the Solicitor General, had been promoted to deputy from assistant to the solicitor general shortly before the term began. He had been in the office for sixteen years, twice had received one of the Justice Department’s highest honors, and often had argued complex regulatory cases, such as issues involving taxes and the environment. There are four deputies—three career attorneys and one political
appointee—and seventeen assistants who appear before the Supreme Court and federal appellate courts. They are generally viewed by other lawyers as the
crème de la crème
of government attorneys.

The office has a two-moot-court rule for its lawyers, which was part of Stewart’s own preparation for the
Citizens United
arguments.

The justices also geared up for the arguments, and their routine, not surprisingly, varied by each chamber. Besides mastering the arguments in the briefs and the lower court’s decision, the justices are aided by their clerks. Some justices require bench memos about the cases. Ginsburg’s clerks typically prepared long memos, but Scalia asked for a maximum of two pages, 14-point font, and the clerk’s personal decision on the case. Justice Sonia Sotomayor, who would join the Court later in 2009, required rigorous, detailed memos with a table of contents. Other justices preferred an informal conversation with their clerks. Regardless of their routine, the justices on this Court are exceptionally well prepared and primed for verbal battle with the lawyers before them.

Citizens United’s case was the only argument scheduled for the morning of March 24. Bossie, his wife, and Boos took seats in the courtroom about a half hour before the 10 am start time. The courtroom seemed small, thought Bossie as he waited, but as he gazed at the nine empty chairs of the justices and the ornate ceiling which told the history of law, he began to feel overwhelmed by the seriousness of what was about to take place. Olson sat at the lawyers’ table in front of the justices’ bench and to the left of the lectern that separated the two sides in the case. Stewart, dressed in the formal gray morning coat worn for decades by members of the Office of the Solicitor General, and his colleagues sat to the right of the lectern, the official seat of the government.

After the traditional “Oyez, Oyez” call by the Court’s marshal, the justices took their seats and Olson began his argument. In a conversational yet firm tone, Olson told the justices that a ninety-minute documentary, like
Hillary: The Movie
, was not what Congress intended to prohibit in the McCain-Feingold law.

Congress was going after “short, punchy” advertisements that viewers
have no choice in seeing, he argued. A ninety-minute documentary offered by a small, ideological corporation to people who choose to view it does not pose any threat of quid pro quo corruption or its appearance. And, he stressed, this movie was not the “functional equivalent of express advocacy,” the test for regulation of electioneering communications. Instead, the movie was a long discussion of the record of a public figure—qualifications, history, and conduct—who was running for office.

Three justices—Souter, Breyer, and Ginsburg—pushed back at Olson’s characterization of the movie. Souter, quoting the movie and its ads, read in his distinctive New England accent: She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, not qualified as commander in chief. “I mean, this sounds to me like campaign advocacy,” he said with a trace of amusement. Breyer said he had seen the movie “and it’s not a musical comedy.” And Ginsburg added, “If that isn’t an appeal to voters, I can’t imagine what is.”

Scalia rescued Olson at one point by noting that the kind of speech in a serious ninety-minute documentary may be entitled to more constitutional protection than the short, punchy ads, particularly speech that is not only offered to but invited by the listener who will pay for it, as in video on demand. “I agree with that completely,” Olson responded, and he then reserved the remainder of his thirty-minute argument time for a rebuttal to the government.

Malcolm Stewart, more formal in style, argued that the functional equivalence test in
Wisconsin Right to Life
did not depend on the length of the advertisement or the medium used. Shortly afterward, Justice Alito launched a series of questions that soon dominated Stewart’s argument. Alito, who often sits with chin in hand and a slightly puzzled look on his face, does not ask questions as frequently as some of his colleagues, but when he does, they reflect a sharply analytical mind that zeroes in on an argument’s weakness.

Alito asked if the Constitution required Congress to limit, as it did,
the corporate financing ban to broadcast and cable communications, or could the ban apply to communications distributed through the Internet, books, or DVDs? Stewart replied that the restrictions could have been applied to additional media to the extent they were constitutional under the Court’s
Wisconsin Right to Life
decision.

“That’s pretty incredible,” said Alito, as an audible gasp slipped from the audience at Stewart’s response. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart calmly answered, “I’m not saying it could be banned. I’m saying Congress could prohibit the use of corporate treasury funds.”