Please read the article, Money Unlimited, regarding the U.S. Supreme Court case, Citizens United v. Federal Elections Committee. Please write a short paragraph on your impressions of the case by March 1, 2019.

Money Unlimited

How Chief Justice John Roberts orchestrated the Citizens United decision.

By Jeffrey Toobin (Links to an external site.)Links to an external site.

By having the case reargued, Roberts put the liberals in a box and transformed the decisions impact on political campaigns.

Illustration by Barry Blitt

When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. The issue before the Justices was a narrow one. The McCain-Feingold campaign-finance law prohibited corporations from running television commercials for or against Presidential candidates for thirty days before primaries. During that period, Citizens United, a nonprofit corporation, had wanted to run a documentary, as a cable video on demand, called Hillary: The Movie, which was critical of Hillary Clinton. The F.E.C. had prohibited the broadcast under McCain-Feingold, and Citizens United had challenged the decision. There did not seem to be a lot riding on the outcome. After all, how many nonprofits wanted to run documentaries about Presidential candidates, using relatively obscure technologies, just before elections?

Chief Justice John G. Roberts, Jr., summoned Theodore B. Olson, the lawyer for Citizens United, to the podium. Robertss voice bears a flat-vowelled trace of his origins, in Indiana. Unlike his predecessor, William Rehnquist, Roberts rarely shows irritation or frustration on the bench. A well-mannered Midwesterner, he invariably lets one of his colleagues ask the first questions.

That day, it was David Souter, who was just a few weeks away from announcing his departure from the Court. In keeping with his distaste for Washington, Souter seemed almost to cultivate his New Hampshire accent during his two decades on the Court. In response to Souters questions, Olson made a key point about how he thought the case should be resolved. In his view, the prohibitions in McCain-Feingold applied only to television commercials, not to ninety-minute documentaries. This sort of communication was not something that Congress intended to prohibit, Olson said. This view made the case even more straightforward. Olsons argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.

The Justices settled into their usual positions. The diminutive Ruth Bader Ginsburg was barely visible above the bench. Stephen Breyer was twitchy, his expressions changing based on whether or not he agreed with the lawyers answers. As ever, Clarence Thomas was silent. (He was in year three of his now six-year streak of not asking questions.)

Then Antonin Scalia spoke up. More than anyone, Scalia was responsible for transforming the dynamics of oral arguments at the Supreme Court. When Scalia became a Justice, in 1986, the Court sessions were often somnolent affairs, but his rapid-fire questioning spurred his colleagues to try to keep pace, and, as Roberts said, in a tribute to Scalia on his twenty-fifth anniversary as a Justice, the place hasnt been the same since. Alternately witty and fierce, Scalia invariably made clear where he stood.

He had long detested campaign-spending restrictions, frequently voting to invalidate such statutes as violations of the First Amendment. For this reason, it seemed, Scalia was disappointed by the limited nature of Olsons claim.

So youre making a statutory argument now? Scalia said.

Im making a Olson began.

Youre saying this isnt covered by it, Scalia continued.

Thats right, Olson responded. All he was asking for was a ruling that the law did not prohibit this particular documentary by this nonprofit corporation during those thirty days. If the Justices had resolved the case as Olson had suggested, today Citizens United might well be forgottena narrow ruling on a remote aspect of campaign-finance law.

Instead, the oral arguments were about to take the caseand the lawin an entirely new direction.

(Links to an external site.)Links to an external site. (Links to an external site.)Links to an external site. (Links to an external site.)Links to an external site.

The historical context for the Courts decision was clear. In the aftermath of the Civil War, the Court remained what it had been before the wara very conservative institution. During Reconstruction, Congress and the states passed three new Amendments to the Constitutionthe Thirteenth, the Fourteenth, and the Fifteenthto give the newly freed slaves the full rights of citizenship. Almost immediately, the Supreme Court did its best to undermine these new provisions. At the same time, the Justices became accomplices in the excesses of the Gilded Age. In a series of cases, including Santa Clara, the Court thwarted attempts by state and local governments to restrain commercial and corporate interests.

This period of the Courts history led into what is known as the Lochner era, for the most famous case of its day. In an early attempt to protect workers from exploitation, New York passed a law prohibiting bakery employees from working more than sixty hours a week or ten hours a day. In Lochner v. New York (1905), the Court declared the state law unconstitutional, on the ground that it interfered with the right of contract of both the employer and the employee. For a five-to-four majority, Justice Rufus Peckham found the New York law an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family. In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners. The Court basically asserted that most attempts to regulate the private marketplace, or to protect workers, were unconstitutional. The Lochner era reflected conservative judicial activism, which has a long history at the Court. The decisions of the nineteen-thirties, which rejected central aspects of Franklin Roosevelts New Deal, also showed how conservative Justices would overrule the democratically elected branches. It was only in the Warren Court era, in the fifties and sixties, that liberal judicial activism became a force at the Court, as the Justices began overturning laws that violated the rights of minorities and women.

The conservatism of the Lochner era at the Supreme Court, and in the broader political world, generated a backlash. Antitrust legislation, food-safety rules, child-labor laws, womans suffrage, a tax on incomeall came together under the broad rubric of Progressivism. Theodore Roosevelt, who became President in 1901, made the movement his own.

Roosevelt won a landslide victory in 1904, helped in part by vast campaign contributions from corporations. He drew heavily from railroad and insurance interests, and in the last days before the election he reportedly made a personal appeal for funds to Henry Clay Frick, the steel baron, and other industrialists. Years later, Frick recalled of Roosevelt, He got down on his knees to us. We bought the son-of-a-bitch and then he did not stay bought. Almost as soon as Roosevelt won the election, he turned his attention to passing the first significant campaign-finance-reform act in American historytrying to outlaw the very techniques he had just used to stay in office.

In 1907, Congress passed the Tillman Act, named for the eccentric rogue Pitchfork Ben Tillman, the South Carolina senator who sponsored the legislation. The law barred corporations from contributing directly to federal campaigns, and established criminal penalties for violations. Loopholes proliferated, allowing, for example, individuals to give as much as they wanted to political campaigns and to be reimbursed for the contributions by their employers. Still, the Tillman Act was a first step toward what Congress described as its goal: elections free from the power of money.

That never happened. In subsequent decades, the power of money in politics only grew. After the Second World War, candidates began to campaign principally by buying advertisements on television, and that strategy created an ever-increasing need for cash. Richard Nixons obsession with campaign fund-raising was one of the principal motivations that led to the Watergate scandals.