FEC v Wisc Right to life

open secrets says bigger case than ppl think, led to CU

...Attempts to reign it in

In the 1980s, court cases challenged the definition of “express advocacy” put forward by Buckley.

In FEC v. Massachusetts Citizens for Life, the Supreme Court held that a communication does not have to use the so-called “magic words” to be considered express advocacy. Massachusetts Citizens for Life (MCL) had used treasury funds to create flyers encouraging people to vote “pro-life” and included the names of pro-life candidates running for office. Although MCL had not used any “magic words,” the judges ruled the ads were clearly an attempt to influence an election.

Also in the 1980s, the FEC took land developer Harvey Furgatch to court after he purchased a full-page ad in The New York Times and Boston Globe to encourage voters to prevent “four more years of incoherences, ineptness and illusion” under then-President Jimmy Carter. The case came to be known as FEC v. Furgatch. Furgatch’s defense was that the ad used none of the “magic words” listed in Buckley and remained vague enough to get a legal pass.

The Ninth Circuit Court of Appeals held that speech could be express advocacy when it is “susceptible of no other reasonable interpretation” – as in this case. They ruled that implied meanings can be considered express advocacy, and therefore Furgatch’s advertisement expressly advocated the defeat of President Carter.

Despite these new limitations on independent expenditure, the ambiguous wording of these laws meant that they were ineffective regulatory tools. The lack of expenditure limits and loose regulations for outside spending created massive inflows of money into campaigns.

In response, Congress passed the Bipartisan Campaign Reform Act (BCRA) in 2002 to eliminate soft money donations and more tightly regulate independently funded ads. Soft money encompasses the money donated to parties that support general political activities, such as voter registration drives.

The Act also prohibited corporations from funding electioneering communications, or broadcast advertisements mentioning a federal candidate within 30 days of a primary election and 60 days of a general election. It thereby ignored the ambiguities of the Buckley and Furgatch cases.

A year later, the Supreme Court upheld BCRA in McConnell v. FEC, determining most of BCRA’s provisions constitutional and noting the “substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption…”

All this changed four years later in a case that a number of legal scholars believe was the stepping stone to Citizens United.

The rise of dark money

:{Wisconsin Right to Life (WRTL), a politically active nonprofit, ran ads encouraging viewers to contact two U.S. senators during the 2004 presidential election. By running the ads, the group broke the BCRA’s rules restricting political ads funded by corporations in the 60-day period before an election. WRTL ended up suing the FEC, claiming that BCRA was unconstitutional.}:

In FEC v. Wisconsin Right to Life, the Court deemed BCRA’s prohibition on corporate electioneering communications as unconstitutional. Their reasoning was that ads crafted to focus on policy issues and implicitly advocating for or against candidates should not be considered express advocacy, and therefore cannot be regulated as such – essentially the opposite of the conclusions made in Furgatch.

:{As long as the ads left out the “magic words” then, a group could easily spend limitless amounts without needing to disclose their donors or report political spending to the FEC.}:

Wisconsin gave rise to massive spending by dark money groups like political nonprofits that are not legally obligated to disclose their contributions.

:{During the 2008 election cycle, the first presidential race after Wisconsin, dark money spending on presidential candidates increased from virtually zero to about$25 million. In the 2012 cycle, the amount soared to $141 million.}:

The Wisconsin Right to Life case is noteworthy not only for helping enable dark money spending but for demonstrating how much the composition of the Supreme Court matters, Brendan Fischer, an attorney with the Campaign Legal Center, said.

:{In 2006, Justice Sandra Day O’Connor retired and was replaced by Samuel Alito, a conservative-leaning justice, which shifted the dynamic on the court.}:

“Between the McConnell case and the Wisconsin Right to Life ruling, really nothing changed in terms of the statistics or practices of campaign finance,” Fischer said. “All that changed was the makeup of the court.

“[This case] is a reminder that the ideology of the court makes a significant impact.”

Citizens United

When Citizens United v. FECwas decided in 2010, its impact did not shock people closely monitoring campaign finance.

Citizens United wasn’t surprising, Fischer said, given the court’s previous rulings, including its findings in Wisconsin Right to Life.

Paul S. Ryan, vice president of policy and litigation for the watchdog group Common Cause said that theWisconsincase did a lot of the damage often attributed to Citizens United as well as much of the damage to campaign finance laws attributed to the Supreme Court.

“Wisconsin Right to Life made permissible corporate funding and created the vague legal standard that acted as a major step toward Citizens United,” Ryan said.

In Citizens United, judges used the ideas stated in previous cases to make their conclusion: As long as money is not given directly to or used in coordination with a candidate, it is not corruptive, and corporations too have the right to freedom of speech.

:{Given that the Court had already deemed independent expenditure from an individual as not corruptive, it was only logical to expand this argument in Citizens United to conclude that independent expenditure from a group – including a corporation that has First Amendment rights – is also not corrupt, and therefore sanctioned. Now, corporations, as well as associations and unions, were granted legal rights to use unlimited sums of money from their treasury funds to fund independent expenditure.}:

This line of reasoning also led to the federal Court of Appeals’ 2010 decision in SpeechNow.org v. FEC,which reinforced Citizens Unitedand removed all contribution limits to independent expenditure-only groups. The SpeechNow.org ruling created super PACs, which can raise and spend unlimited money to advocate for or against a political candidate, including donations from corporations.

The Supreme Court’s most recent major case on campaign finance, McCutcheon v. FEC, addressed direct contributions rather than outside spending. In this case, Alabama resident Shaun McCutcheon objected to the aggregate contribution limit of $123,200, the amount that individuals were allowed to donate to all federal candidates and parties combined in a single election cycle. He sued the FEC, claiming that the aggregate limit on contributions violated his First Amendment rights.

The majority of the Court agreed with McCutcheon, concluding that one individual donating to many groups does not necessarily give rise to “influence over or access to” elected officials or parties the same way that a single large contribution might. While base limits (the amount allowed to be donated to each candidate) were deemed constitutional, aggregate limits were ruled a violation of a person’s freedom of speech.

Because of these rulings, over the last half century or so, federal campaign finance has become an extremely complex system, balancing transparency and avoiding corruption with freedom of speech and political participation.

Freedom of speech is certainly winning: In 1868, Ulysses Grant’s election effort cost $150,000 – or $2.7 million in today’s money. In 2016, Donald Trump’s campaign committee and outside groups supporting him spent nearly 150 times more. Hillary Clinton’s campaign, combined with outside groups, spent nearly 300 times more.

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lever bopp --> CU

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DAVID:Back at his storefront office in Terre Haute, Indiana, James Bopp had his eye on deregulating the campaign finance system, a cause that Kennedy seemed especially amenable to. So Bopp elbowed his way to the front of the queue with a case that brought his two pet causes together, the crusade against abortion and the crusade to deregulate campaign finance laws.

JAMES BOPP JR.: I can't tell the story without talking about Wisconsin right to life.

DAVID:James Bopp saw a new chance to try to go big. It was absolutely critical. Bopp is talking about FEC v Wisconsin right to life, a Supreme Court case that was heard right after John Roberts and Sam Alito were installed, right when Anthony Kennedy was the new swing vote

JAMES BOPP JR.:Wisconsin Right to Life contacts me and says that there's an upcoming vote on Bush's judicial nominees, Feingold of McCain, Feingold fame is up for election, and we want to lobby him, and the vote is going to be in September.

ARCHIVAL NEWS FOOTAGE: The special interest anti-abortion group Wisconsin Right to Life is now airing this TV spot. There are a lot of judicial nominees out there who can't go to work, but come this weekend, this ad and corresponding radio hits will be illegal. Why nominees because Wisconsin Right to Life or WRTL talks about in its ad, contact Senators Feingold and Cole and tell them to oppose the filibuster.

DAVID: Wisconsin Right To Life ads fell within the 60-day window or blackout period before that year's general election, which made it subject to the restrictions of the McCain-Feingold campaign finance law, which, as you heard before, had been upheld by the pre-Roberts, pre-Alito Supreme Court. Under that law, the group couldn't mention Senator Feingold by name, because that would be considered electioneering. So Bopp sued on the grounds that those restrictions were a violation of free speech.

On April 25, 2007, James Bopp argued that case in front of the Roberts and Alito Supreme Court. The questioning focused on whether the Wisconsin right-to-life ads were just issue ads designed to lobby, or whether they were a stealthy form of electioneering against the candidate in the election. Here's Justice Stevens questioning Bopp about the distinction.

ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS):Are you trying to convince us? The purpose of these ads was to convince Senator Feingold to change his position on filibuster.

JAMES BOPP JR.: It was, indeed it was to lobby him.

ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS):Did you think that was a realistic goal?

JAMES BOPP JR.:Yes, as it turns out, because in 2006 we ran the same sort of anti-filibuster as and Senator Cole, now up for reelection, changed his position on the filibuster. So these things happen. In other words, people, people's positions are affected by grassroots lobbying, and at least people should have the opportunity.

DAVID: Then, Anthony Kennedy chimed in.

Archival Clip, Justice Anthony Kennedy: Is that called democracy?

DAVID:Senators Feingold and Cole and tell them to oppose the filibuster those

Archival Clip, JAMES BOPP JR.:We are hopeful. Your Honor.

DAVID: Ultimately, the conservative majority on the court, including the key swing vote, Anthony Kennedy narrowly agreed with Bopp, saying that Wisconsin right to life's ads were not express political advocacy, since they didn't literally tell people whether or not to vote for specific candidates. The Court declared that Wisconsin right to life's ads could not be regulated by the McCain-Feingold campaign finance law. Here's Chief Justice John Roberts once again, play acting as a baseball umpire.

Archival Clip, John Roberts: Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election where the First Amendment is implicated, the tie goes to the speaker, not the censor.

DAVID: Put another way, a mere four years after the old Rehnquist Court dunked on the master planners and upheld McCain's campaign finance law, the new Roberts Court had just sided with those same master planners and overturned a major part of that law. This was an Empire Strikes Back moment for the ages.

SEN. SHELDON WHITEHOUSE (D-R.I.): I call that the ‘Magic words’ case.

DAVID: This is Senator Sheldon Whitehouse. White House first took his seat as the junior senator from Rhode Island just six months before the decision in FEC versus Wisconsin right to life came down. He told us just how significant this little noticed case really was. That was the case in which Supreme Court decided what the magic words were, that if you used them in an ad, it became a political ad and was subject to a variety of regulations and limitations. But if you didn't use those magic words, then you could say that your ad was not a political ad, but it was issue advocacy. You weren't recommending a vote against Senator Whitehouse. You were just recommending that voters call up Senator Whitehouse and ask why he was a thieving, dirty, puppy-hating, anti-American scoundrel, right? The effect on the airwaves is the same, but if you didn't use the magic words about vote or elect then this whole new avenue opened up for dirty political TV advertising.

DAVID: Whitehouse said that the little magic words loophole started opening up the floodgates for unregulated, anonymous, dark money ads that buy elections, all under the guise of educating the public with so-called ‘issue ads’ rather than electioneering. I think that was the purpose of the exercise. Here are the words that if you don't use them, you're good to go on election spending.

DAVID: So you can see why. James Bopp told us that the decision in FEC v Wisconsin Right To Life was absolutely critical. It was a huge blow to the McCain-Feingold campaign finance law, but perhaps more importantly, it showed Bopp how this new Roberts Alito court was inclined to rule on all of these campaign finance issues}:. :{Bopp also noticed something else. Arch conservative justice Antonin Scalia wrote a concurrence, agreeing with the court's decision, but saying it should have gone a step further and completely eliminated McCain-Feingold's prohibitions against unlimited corporate spending to sway elections.

The concurrence was backed by Clarence Thomas, hardly a surprise, but there was a third signature on the document, you guessed it, Anthony Kennedy. That was a signal to James Bopp that perhaps he could get Kennedy, the old Sacramento Swamp Thing, to channel his predecessor, Lewis Powell, and go huge.

ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON):I announced today that I'm forming a presidential exploratory committee. I'm not just starting a campaign, though. I'm beginning a conversation with you, with America.

DAVID: It's early 2007. Hillary Clinton has announced her campaign for president. James Bopp is in Terre Haute, working on arguments that might get justices to go big in that Wisconsin right to life case.

ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON):So let the conversation begin, I have a feeling it's going to be very interesting.

DAVID: And then one day, James Bopp’s phone rings,

JAMES BOPP JR.: So I'm sitting in my office, and I get a phone call from David Bossie.

DAVID: David Bossie is a conservative activist. In 1992 he was working for a non-profit that was first founded by the same people who made one of the sleaziest dark money ads in American history, the Willie Horton ad that shifted the 1988 presidential election that you heard about in episode six. By 2000, Bossie was the organization's president, so James Bopp picks up the phone to talk to David Bossie and Bossie asks Bopp if he'd represent his organization in a juicy lawsuit about Hillary Clinton that could end up letting corporations spend unlimited amounts of money in politics.

ARCHIVAL AD: Oh, baby. You know what I like.

DAVID:James Bopp likes big campaign finance cases, and this one might be the biggest of them all.

JAMES BOPP JR.: And he said, ‘I'm working on a movie called Hillary: The Movie, alright?’ And this is now in early 2007, I'm working on a movie, and she's running for president.

DAVID:Hillary: The Movie was promoted by Bossie as a documentary, but it was functionally just a hyper conservative 90-minute anti-Clinton campaign ad with Sad, Scary Music, all funded by a boatload of anonymous money.

“HILLARY: THE MOVIE”: She's deceitful. She'll make up any story, lie about anything, as long as it serves her purpose of the moment, and the American people are going to catch on to it. I can't think of any other politician in history who has shown such a disrespect and a contempt for the Constitution and the rule of law as Hillary.}:

DAVID: Bossie was calling bopp to figure out how to drop this thing into the 2008 election cycle while skirting campaign finance laws that apply to political ads during elections.

JAMES BOPP JR.:I want to broadcast this movie, and I need your help two ways. Okay, first way is to make sure that our movie script does not have an appeal to vote for or against a candidate, because I want to be able to do this, and if it has an appeal to vote, I'm prohibited, so I want you to give me the advice to make sure that they could still do this movie.

DAVID:The second thing Bossie wanted Bopp's help on was finding a legal way to get around the requirement to file a disclosure report about who exactly was funding the project.

JAMES BOPP JR.: The report would have required him to reveal his donors, and people would not want to contribute if they are going to be outed as funding an anti-Hillary certainly critical Hillary movie, right? So he doesn't want to have to do this report of their donors.

DAVID: This is something we've seen over and over again in our reporting, conservatives want to be able to broadcast whatever messages they want, but they don't want to have to admit who is actually funding the message. And this quote, unquote movie was pretty nasty.

“HILLARY: THE MOVIE”:I knew Richard Nixon, and I'll tell you something, she's no Richard Nixon. She's worse, ruthless, vindictive, venal, sneaky, ideological, intolerant, liar is a good one…scares the hell out of me.

DAVID: So Bopp took the lessons he learned in the Wisconsin case, and he set about strategically assembling this new case using arguments that Roberts and Scalia and Kennedy had signaled they were sympathetic to, and just like his inspiration, Thurgood Marshall in Brown v Board of Education, James Bopp hoped this case would be the big one.

Bossie's organization had run into issues with federal election regulators in the past. They tried to make some so-called documentaries before, but the dark money group was clearly a political organization and not a movie studio. So more than once, the Federal Election Commission insisted that they were subject to McCain-Feingold's restrictions. Bopp anticipated a similar pushback on Hillary: The Movie, but rather than waiting for federal election regulators to send a cease-and-desist letter to Bossie, Bopp had a genius idea. He went to a lower court demanding a declaratory judgment up front one that would officially allow Bossie to air his documentary right up until the 2008 primaries. In other words. Courts. Bopp took a play out of the Powell memo and used this case as a preemptive attack.

LEWIS BLACK AS LEWIS POWELL:The greatest care should be exercised in selecting the cases in which to participate.

DAVID: He used this obscure movie to create a case out of thin air, the lower court said, essentially no campaign finance restrictions obviously apply to this, but that ruling gave Bopp what he really wanted, a way to appeal the case up to John Roberts, Sam Alito, and Anthony Kennedy on the Supreme Court. When Hillary: The Movie became a legal case, it ended up being named after Bossie’s non-Movie Studio, nonprofit, maybe you've heard of it:

…

DAVID: Citizens United was appealed up to the Supreme Court in August of 2008 Hillary Clinton was long gone from the presidential race, defeated by Barack Obama, but that didn't matter, the master planners were after something much bigger. The Court agreed to hear the case three months later, and then David Bossie replaced James Bopp.

Bossie bumped bop for a new Hot Shot attorney named Ted Olson. By 2008 Olson was already famous in master plan circles. He'd been a founding member of the Federalist Society and the bush campaign's mouthpiece at the Supreme Court in Bush v Gore, which decided the 2000 election. Supposedly, David Bossie had seen Olson win a Republican lawyer of the Year Award at an event in Washington, DC in October 2008 where another attorney called Olson the quote, “winningest Supreme Court lawyer.”

So when bossie’s challenge was accepted at the High Court The following month, he told his co-founder that they should ditch old James Bopp in Terre Haute and pick up Olson instead like leaving prom with the popular girls.

When Olson took over the Citizens United case, he slightly reformulated Bopp's argument. He focused on the idea that Hillary: The Movie was not what the McCain Feingold campaign finance law was actually supposed to prohibit. It was a documentary movie that viewers had to seek out on video on demand, not a screeching election ad that couldn't be avoided on cable TV.

ARCHIVAL SUPREME COURT AUDIO (TED OLSON):Mr. Chief Justice, and may it please the Court, 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.

DAVID: It was Olson who first brought up the word “corruption.”

ARCHIVAL SUPREME COURT AUDIO (TED OLSON):The government cannot prove, and has not attempted to prove, that a 90-minute documentary poses any threat of quid pro quo, corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest, that the First Amendment is there to guarantee.

DAVID: Olson argued with a straight face that Hillary the movie wasn't an election focused ad governed by campaign finance laws, despite the fact that it was dropped in the middle of an election and spends 90 minutes insisting that Hillary Clinton was unqualified for the presidency and was, I'm paraphrasing here, basically the Antichrist. Justice Souter for one wasn't buying. It.

ARCHIVAL SUPREME COURT AUDIO (DAVID SOUTER):Doesn't this one fall into campaign advocacy. I mean, I've got the government's brief open at pages 18 and 19, with the quotations. She'll lie about anything. She's deceitful. She's ruthless, cunning, dishonest. Do anything for power. Will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief. I mean, this sounds to me like campaign advocacy.

DAVID: Yeah, you think? In response, the master planners on the Supreme Court pretty much hijacked the oral arguments the same way your crotchety uncle pulls the ‘well actually’ move to steer the Thanksgiving dinner conversation towards his bizarre theories. For example, instead of a discussion about money, influence, election buying and corruption, what the case was actually about justice, Sam Alito forced the government's defense lawyer into an absurd debate about book banning. Here's Kennedy.

ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY):Suppose it were an advocacy organization that had a book, your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 or 30 day period

ARCHIVAL SUPREME COURT AUDIO (TED OLSON):if the book contained the functional equivalent of Express advocacy, that is, if it was subject to no reasonable interpretation

DAVID: They proceeded to get into an even more ludicrous debate about e-books that are accessed via satellite

ARCHIVAL SUPREME COURT AUDIO (TED OLSON):within the 60 30, day period. If it comes from a satellite, it can be prohibited under the Constitution and perhaps under the statute.

DAVID:I mean, this is a case about a movie. What are they even talking about? I feel like I'm Steve Martin in Planes, Trains and Automobiles.

“Planes, Trains and Automobiles”:When you're telling these little stories, here's a good idea: Have a point. It makes it so much more interesting for the listener.

DAVID:The FEC’s lawyer tried to steer the justices back on track.

ARCHIVAL SUPREME COURT AUDIO:It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book, and could be required to raise funds to publish the book using its PAC.

DAVID:That was the actual point. And unfortunately, the FEC’s lawyer didn't make it very well. It wasn't really about whether the government could or would prohibit the publication of a book that urged its readers to vote or not vote for a specific candidate. It was about a corporation being able to anonymously funnel money from its coffers into election communications with no restrictions, and the government was arguing that they'd have to use a regulated PAC or explicitly disclosed political money instead.

It's worth reiterating that none of this is what the original case was asking about. But as the ever more twisted and deranged arguments went on, the conservative justices like Anthony Kennedy kept insisting that it was a free speech question, even though it really wasn't. Then an hour later, it was over.

ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): Thank you, Counsel. The case is submitted.

ULA:What happens behind the scenes when the justices vote on this case is kind of my favorite part of the story.

DAVID:This is producer Ula Culpa, to tell us about when things got really interesting.

ULA:So after oral argument, the justices meet in private and have a round of initial votes on the case. It falls basically along ideological lines, with the four liberals against Citizens United and the five conservatives, including Anthony Kennedy, in favor of saying that McCain-Feingold [Bipartisan Campaign Finance Reform Act] did not apply to Hillary: The Movie, Roberts gets to work on a narrow opinion saying that, but Kennedy writes a concurrence that argues that they should go way bigger and invalidate any campaign finance restrictions on allegedly independent political groups like Citizens United.

DAVID: So Roberts and the other conservatives then compare drafts, and they love Kennedy's idea so much that Roberts withdraws his more narrow opinion and lets Kennedy write the majority

ULA: Exactly. And this is where the drama hits after Justice Souter sees what Roberts and Kennedy are planning to do. He gets pissed and writes a dissent, and it has become infamous in legal circles because it was this Full Tilt bridge burning attack on the logic of his fellow justices, which is something that almost never happens, and definitely not like this. Reportedly, Souter berated not only the conclusions that Roberts and Kennedy had come to, but the like intellectual depravity to step outside of and way beyond what this case was asking in the first place.

DAVID: Finally, someone was calling bullshit. Okay, so read us some excerpts.

ULA:Well, I can't.

DAVID: Wait. Why?

ULA:Because very few people have actually ever seen Souter's dissent, and that's because not long after he drafted it, just as David Souter has informed the White House, he will retire at the end of a Supreme Court term in June. God, it's exactly like that scene from Half-Baked.

“HALF-BAKED”: Fuck you, Fuck you, fuck you… You're cool…Fuck you. I'm out

ULA: Totally and then John Roberts basically makes sure Souter’s dissent never gets published as part of the official record. Because instead of the ruling coming out at the end of the court's term, like you might expect, Citizens United is suddenly scheduled for re-argument in the fall.

DAVID:What the hell is reargument?

ULA: It's when the Court asks the lawyers to write all new briefs about all new questions. In this case, Roberts asked them to address big constitutional questions that signaled that the court wasn't going to issue a narrow ruling about one movie. It was going to follow Kennedy's lead and go really, really big.

DAVID: So here we are in the fall of 2009, things still seem all Hopey-and-Changey over in the White House, but only a few blocks away at the Supreme Court. Shit is about to go down. The Master planners had taken over the court with Roberts and Alito. James Bopp had given Anthony Kennedy the chance to go big, and Roberts figures out a way to make it all happen. This is like the master planners a team moment.

DAVID: So six months after the first argument in the Citizens United case, David Souter is retired. His barn burning warning about the end of democracy is nowhere to be found. The ideological Terminator John Roberts rewinds the clock and lets Federalist Society luminary Ted Olson make a whole new argument to the court,

ARCHIVAL SUPREME COURT AUDIO (TED OLSON):Mr. Chief Justice, and may it please the Court.

DAVID: This was no longer a little argument about a specific campaign finance law and a dumb documentary, but a robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech.

Olson and his client Citizens United were now resurrecting the old free speech arguments from Buckley v. Valeo and from Lewis Powell's Bellotti ruling that you heard about in episode five. Essentially, they argued that money is protected speech. They also argued that corporations, therefore have a constitutional right to spend unlimited money in elections, as long as it's not directly coordinated by candidates, and that such independent spending isn't a corrupting force. The justices seem supportive of that view. John McCain said they seemed totally out of touch with reality.

ARCHIVAL NEWS FOOTAGE (JOHN MCCAIN): I was rather disappointed in some of the justices apparent naivete as to how corporate and union and unlimited money affects the legislative process. Does anyone believe that the rights of average citizens to be heard in Washington would not be overridden by massive, unlimited campaign contributions from corporations and unions?

DAVID: McCain was correct. Nobody believed that, but that was a feature of the Citizens Unitedcase, not a bug. A ruling in favor of Citizens United would override average citizens' voices and create a society run by corporations and oligarchs, just as James Bopp's fellow Hoosier Ron Swanson had dreamed of back in fictional small town, Indiana.

“PARKS AND RECREATION”:I think that all government is a waste of taxpayer money. My dream is to have the park system privatized and run entirely for profit by corporations like Chuck E. Cheese. They have an impeccable business model. I would rather work for Chuck E. Cheese.}:

DAVID: McCain, Feingold and all the Reformers warned that ruling for Citizens Unitedwould deregulate the campaign finance system and basically make Ron Swanson's vision a reality. Politicians and public officials would work for Chuck E. Cheese and every other corporation, and those corporations would be allowed to buy elections. I mean, the Supreme Court was pretty radical, but would it really go that far? That's after the break.

ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): In case 08205, Citizens United v. the FEC, Justice Kennedy has the opinion of the court.

DAVID: On January 21, 2010, just over four months after the second round of arguments, the decision in Citizens United came down this time. It wasn't Chief Justice John Roberts writing the majority opinion. It was the old Sacramento Swamp Thing, former lobbyist and influence peddler Anthony Kennedy in announcing the decision to the public. Kennedy first laid out why the majority had decided to go big. He identified the precedents that were relevant to the case, like the court's ruling a few years prior, that had held up the McCain Feingold campaign finance law. And then, he said, we conclude that those precedents now must be reexamined. The Court has recognized that First Amendment protection extends to corporations. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.

DAVID: The precedents the court's majority was now dismantling, according to Kennedy, would

ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY): —allow the government to ban corporations from expressing political views through any media, including media beyond those presented here and in this case, such as by printing books, political speech is indispensable to decision making in a democracy. And this is no less true because the speech comes from a corporation rather than an individual.

DAVID:This is the radical corporations are people concept on steroids, and the opinion was directly built from that Belotti ruling, first authored by Kennedy's immediate predecessor, Lewis Powell, even more radical, Anthony Kennedy, who spent his early years as a lobbyist doling out campaign cash to sway legislators. That same Anthony Kennedy was now also insisting that money in politics was only corrupting when there was an explicit quid pro quo, but all the other things that Anthony Kennedy himself had helped his Sacramento lobbying clients use money to buy stuff like access and influence that stuff was apparently not corrupting. That sounds like an exaggeration, but in his written opinion, Kennedy asserted that campaign donors, quote, may have influence over or access to elected officials, but that did not quote mean that these officials are corrupt. And then Kennedy wrote something so crazy that — hold on, hold on. Can I get a special effect on my voice for this so that it sounds extra evil? Okay, there we go.

Kennedy said, quote, independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. I mean, think about how insane that is. Anthony Kennedy non ironically, wrote a ruling with the force of law that essentially declares that when a corporation spends $50 million blanketing your state to help one candidate win a US Senate election, there's no corruption or even appearance of corruption when that candidate then does legislative favors for that corporation. Justice Stevens wrote the dissent on behalf of the liberals. It may not have been Souter's barn burner, but it was pretty close. It was 90 pages long and probably bolstered by the fact that Stevens was 90 years old and also nearly ready to retire.

ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): As one of the joint authors of the opinion in McConnell, I must emphatically disagree with today's law changing decision…

DAVID: Stevens’ dissent made the point that up until O'Connor and Rehnquist were replaced by Roberts and Alito, the court had upheld at least some restrictions on corporate spending in elections.

ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): The Court has the point exactly backwards. At the founding Americans took it as a given that corporations could be comprehensively regulated in the service of the public welfare. It is doubtful that the framers believed the freedom of speech would extend to corporations who cannot themselves engage in speech. And is even more doubtful that when they ratified the First Amendment, they thought they were laying down a principle that could be used to insulate corporations from even modest restrictions on electioneering expenditures.

goes ORIGINALIST ON THEIR ASSES?

DAVID: After speaking for 20 minutes, twice as long as Kennedy had, Stevens had his mic drop moment.

ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): While American democracy is still imperfect, few outside the majority of this court would have thought its flaws included a shortage of corporate money in politics.

DAVID: Unsurprisingly, when the ruling came down, David Bossie of Citizens Unitedwas giddy.

ARCHIVAL NEWS FOOTAGE (DAVID BOSSIE):This is a monumental day for Citizens United, and more importantly, for the First Amendment and the fundamental rights of people to participate in the political process and the marketplace of ideas, whether you're an individual, whether you're a corporation or a union, it doesn't matter. You can now participate fully and freely in the election process.

DAVID:Here is Senator Sheldon Whitehouse again.

SEN. SHELDON WHITEHOUSE:My recollection, I was on the Senate floor and came back to read the decision.

DAVID: He said the decision was painful to read.

SEN. SHELDON WHITEHOUSE: I live in the immediate political world, and I was watching the Supreme Court buy into a notion about that political world that I knew to be false. They have applied a conceptual paradigm over politics that is complete and utter nonsense.

DAVID:While much of the country reacted to the decision with surprise and anger, White House says that conservative must have had an inkling that this was coming, because right after the decision came down, conservative and business interest groups immediately filed papers to create scores of unregulated dark money groups that could exploit the ruling.}:

SEN. SHELDON WHITEHOUSE:The fact that they had this whole 501(c)(4) apparatus ready to go sort of proved that this was an expected decision. In fact, you even have Virginia Thomas setting up her organization while the decision is being deliberated, so that on the day it's announced she's ready to go.

DAVID: Whitehouse is referring to Virginia Ginni Thomas, wife of justice, Clarence Thomas, just weeks before the ruling in Citizens United came down, she and Leonard Leo of the Federalist Society filed initial paperwork for a not for profit lobbying group called Liberty Central, a group designed to take advantage of the Citizens Unitedruling Liberty Central is America's public square. We inspire, we listen, we activate ordinary citizens to secure the blessings of liberty.

DAVID: Though it was hidden at the time, later, reporting revealed that Liberty Central's initial $500,000 of funding came from who else the Thomas's favorite billionaire, a guy named Harlan Crow, who'd been funding lavish trips for justice, Thomas on the other side of the aisle, Democrats openly criticized the Citizens Unitedruling. Here's President Obama in his State of the Union address less than a week after the decision

ARCHIVAL SPEECH AUDIO (BARACK OBAMA): Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including. Foreign corporations to spend without limit in our elections.

DAVID: In the video of the speech, you can see the justices stay seated and look stone-faced as much of the room stands to applaud Obama around them, and then there's Samuel Alito shaking his head and muttering, not true.

SEN. SHELDON WHITEHOUSE: It made me grieve for Sandra Day O'Connor, whose departure had opened the door for Alito particularly, and whose common sense and experience as somebody who had run for office, I think would have headed off Citizens Unitedhad she stayed on the court. So the whole thing was just sort of imbued with sorrow and missed chances, but the result at the end was a completely manufactured simulacrum of what the political world is like, created by the court and imposed on all of us.

DAVID:Whitehouse and John McCain tried to quickly limit the rulings effects. They asked the Supreme Court to at least prevent a lower court in Montana from now using Citizens United to gut that state's 100 year old anti corruption law the Supreme Court refused to even hear the case.

SEN. SHELDON WHITEHOUSE: So at that point, I realized, Oh, my God, this is not an innocent mistake. They are actually deliberately trying to open our political world to right wing political dark money.

DAVID: In my imagination, James Bopp was celebrating back home in Indiana when he read the Citizens United ruling.....

DAVID: He was psyched. But if he doesn't sound 100% excited about the ruling, it's because he kind of wasn't sure he had gotten most of what he wanted. He had created a case that convinced the court to go huge and eviscerate campaign finance laws in a world changing ruling, four years before Citizens United, nonprofits and other non disclosing political groups had spent $0 in the 2006 election cycle. In 2010 right after the ruling, those groups accounted for 47 percent of political spending, $134 million but still, there was one part of the Citizens Unitedruling that stuck in James Bopp's craw.

JAMES BOPP JR.: They upheld a report, the disclosure Yeah, the disclosure report.

DAVID: Remember David Bossie originally asked Bopp to help his group circumvent the McCain Feingold law and letCitizens United air its glorified anti-Hillary campaign ad in the middle of the election. But Bossie also told Bopp he wanted to ignore the McCain-Feingold law's disclosure provisions and hide the names of the ad's funders from the public on that disclosure issue, the court actually ruled against Citizens United

The court ruled that laws requiring big spenders in elections and politics to be disclosed, those laws were constitutional. We reject Citizens United's challenge to the disclaimer and disclosure provisions. Those mechanisms provide information to the electorate, the resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.}:}:

DAVID: When he heard this caveat, Senator Sheldon Whitehouse saw an opportunity to call the Supreme Court's bluff. He introduced a bill called the Democracy Is Strengthened by Casting Light On Spending in Elections. Act, a hilariously wordy attempt to get a pithy acronym the DISCLOSE Act.

SEN. SHELDON WHITEHOUSE:The DISCLOSE Act was originally designed to require that you trace back to the actual source of political contributions for any contribution to a political campaign, or a PAC or a Super PAC, over $10,000 in a individual race. That's not a whole lot of people, but at that level, you really are buying influence. And so I think it's important for voters to understand what's going on in their political world around them.

DAVID: Democrats rallied behind the DISCLOSE Act right away, while Republicans like Mitch McConnell contorted themselves to swat it down.

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FEC v. Wisconsin Right to Life, Inc. - Wikipedia

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), is a United States Supreme Court case in which the Court held that issue ads may not be banned from the months preceding a primary or general election.^[1]

Background

In 2002, the Congress passed the Bipartisan Campaign Reform Act ("McCain-Feingold" or "BCRA"), amending the Federal Election Campaign Act to further regulate money in public election campaigns. One primary purpose of the legislation was to regulate what were colloquially known as "issue ads."

"Issue ads" typically discussed a named candidate's views regarding a particular issue, but because they did not expressly advocate the election or defeat of the candidate, they fell outside the prohibitions and limitations of the Federal Election Campaign Act. Section 203 of BCRA prohibited corporations and unions from directly or indirectly funding "electioneering communications," defined as broadcast ads costing in excess of an aggregated $10,000 that mentioned a candidate for federal political office within 30 days of a primary election or 60 days of a general election. In McConnell v. Federal Election Commission, the Supreme Court upheld section 203 and other sections of the Bipartisan Campaign Reform Act against a facial challenge that the law was unconstitutional.

Wisconsin Right to Life Inc. ("WRTL"), a nonprofit advocacy group, sought to run ads asking voters to contact their Senators and urge them to oppose filibusters of judicial nominees. (The text of one of WRTL's proposed ads is listed at the conclusion of this article). WRTL sought to run its ads within the 30- and 60-day blackout provisions of BCRA. However, because WRTL was itself incorporated and also because it accepted corporate contributions, it was prohibited from doing so. WRTL argued that the proposed ads addressed a current issue pending in Congress and did not advocate the election or defeat of a candidate. As such, the government had no compelling interest in prohibiting them from airing even during the election session.

In the first round of litigation, the federal district court ruled that the language of McConnell v. FEC precluded not only a facial challenge, but also an "as applied" challenge to this portion of BCRA and so dismissed the case. However, in Wisconsin Right to Life v. Federal Election Commission^[2] ("WRTL I"), the Supreme Court reversed and remanded the case to the lower courts to determine whether or not WRTL should be granted an "as applied" exception to the law.

On remand, the FEC argued that ads run so close to an election and naming a candidate or candidates should be presumed to have the intent of influencing the election, and thus BCRA's limitation on financing such ads with corporate funds was constitutionally valid. It argued that WRTL's specific ads were intended to and would influence the 2004 Senate election in Wisconsin.

The district court rejected the FEC's argument and refused to delve into the matter of the intent and underlying meaning of the ads. The Court stated that such an investigation would be impractical and would "have a chilling effect on protected speech." The District court thus limited its review to that content of the ad. In doing so, the court found that they were not "sham" issue ads and did not expressly advocate for or against a candidate. It, therefore, found that the government lacked a compelling interest to abridge WRTL's rights of free speech. The FEC appealed and the case returned to the Supreme Court.

Opinion of the Supreme Court

The Supreme Court, in a 5–4 decision, crafted a major exception to the limitations on broadcast ads within 30 days of a primary or 60 days of a general election. The court ruled that unless an ad could not reasonably be interpreted as anything other than an ad urging the support or defeat of a candidate (in other words, unless an ad expressly urges support or defeat of a candidate), it was eligible for an "as applied" exception to the McCain-Feingold limits on issue ads close to an election.

The decision of the Court, authored by Chief Justice John G. Roberts, is notable not only for its holding, affirming the lower court, but for its strong language (repeatedly referring to BCRA's prohibition as the "blackout" period; rebuking calls for greater regulation of political speech by declaring "Enough is enough"; and concluding "we give the benefit of the doubt to speech, not censorship") and for demonstrating a skepticism of campaign finance regulation that was absent in McConnell. In the opinion, Roberts argued that Congress's ability to limit speech about politicians and issues was limited to "express advocacy or its functional equivalent."

Roberts endorsed the lower court's view that it would be improper and would chill speech to subject speakers to an extensive investigation of motive and factor surrounding the ad and, instead, limited review to the content of the ad itself. Although, in theory, the opinion left BCRA's prohibition on "electioneering communications" standing and conformed with McConnell v. FEC, for most practical purposes, it cut deeply into the law, reverting it to its pre-McConnell state in which only speech expressly advocating the election or defeat of a candidate could be constitutionally subject to limits and prohibitions on financing.

Though announcing the Court's judgment, Roberts' opinion was joined only by Justice Samuel Alito. The rest of the majority consisted of Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, who would have gone further and simply reversed McConnell outright.

Justices John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg dissented.

Although "WRTL II," as the case is generally called, remains an important marker in First Amendment campaign finance jurisprudence, as a practical matter, it has been largely superseded by the Court's 2010 decision in Citizens United v. Federal Election Commission.

Proposed text of WRTL ad

[Wedding scene]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 are 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 candidates committee.^[3]

References

^ FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). This article incorporates public domain material from this U.S government document.
^ Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006).
^ Wisconsin Right to Life v. FEC, 466 F. Supp. 2d 195, 198, n. 3 (D.D.C. 2006).

External links

Text of Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) is available from: Cornell CourtListener Findlaw Google Scholar Justia Oyez (oral argument audio){nl}|

U.S. Supreme Court Freedom of Speech Clause case law

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