Process
Status Items Highlights Done See section below Claims None Questions None Output None
Highlights
Time 0:05:12
Campaign Finance Deregulation
- James Bopp Jr. realized campaign finance restrictions limited his organization’s ability to achieve its primary goal.
- His goal was to overturn Roe v. Wade.
- Bopp saw deregulating campaign finance as a means to elect anti-choice politicians.
- These politicians would then appoint anti-choice judges to the bench.
- He began to connect the anti-abortion cause with the fight against campaign finance regulations. Transcript: David Sirota In 1980, when the National Right to Life Committee published voter guides encouraging support for anti-choice candidates, the organization got in trouble for violating the old Federal Election Campaign Act. That’s when Bopp realized that campaign finance restrictions were limiting his organization’s ability to achieve its one big goal. To design and implement a strategy to overturn Roe v. Wade. Increasingly, it seemed like the way to do that was to deregulate
Time 0:29:16
Hillary: The Movie
- David Bossie contacted James Bopp Jr. to help broadcast the movie ‘Hillary the Movie’ during the 2008 election cycle.
- Bossie wanted to avoid campaign finance laws that applied to political ads.
- He sought Bopp’s advice on how to ensure the movie’s script didn’t explicitly appeal for or against a candidate.
- Bossie also wanted to bypass the requirement to disclose the project’s funders to keep the donors anonymous.
- Conservatives aimed to broadcast messages without revealing the funding sources, which is a recurring theme. Transcript: David Sirota So 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 Sirota The second thing Bossie wanted Bob’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 of a Hillary, Movie. So he doesn’t want to have to do this report of their donors. David Sirota 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.
Time 0:31:19
Citizens United Origin
- James Bopp Jr. strategically assembled a case, inspired by Thurgood Marshall, using arguments that Roberts, Scalia, and Kennedy had previously shown sympathy toward.
- Bossie’s organization faced issues with federal election regulators for creating so-called documentaries that were actually political.
- Bopp, anticipating pushback, preemptively sought a declaratory judgment to allow Bossie to air his anti-Hillary documentary until the 2008 primaries.
- Though the lower court initially rejected Bopp’s request, it gave him a way to appeal to the Supreme Court, leading to the Citizens United case. Transcript: David Sirota Bossie’s organization had run into issues with federal election regulators in the past. They’d 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 Bossy, Bopp had a genius idea. He went to a lower court demanding a declaratory judgment up front, one that would officially allow Bossy to air his documentary right up until the 2008 primaries. In other words, Bopp took a play out of the Powell memo and used this case as a preemptive attack. James Bopp Jr. The greatest care should be exercised in selecting the cases in which to participate. David Sirota 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 non-profit. Maybe you’ve heard of it. James Bopp Jr. The Citizens United case. David Sirota Citizens United. Citizens United. James Bopp Jr. Get rid of Citizens United and its pernicious effects on our electoral system.
Time 0:36:11
Hijacking Oral Arguments
- The Supreme Court justices hijacked the oral arguments in the Citizens United case.
- Instead of focusing on money, influence, and corruption, the justices steered the discussion towards topics like book banning and e-books accessed via satellite.
- This tactic served as a distraction from the core issue.
- The actual point was whether corporations could anonymously funnel money into election communications without restrictions.
- The government argued that corporations should use a regulated PAC or explicitly disclosed political money instead. Transcript: David Sirota 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, 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. James Bopp Jr. 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- to 30-day period. If the book contained the functional equivalent of express advocacy, that is, if it was subject to no reasonable interpretation. David Sirota They proceeded to get into an even more ludicrous debate about e-books that are accessed via satellite. James Bopp Jr. 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 Sirota 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. 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. The FEC’s lawyer tried to steer the justices back on track. James Bopp Jr. It can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book. It could be required to raise funds to publish the book using its PAC. David Sirota 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.
Time 0:40:36
Souter’s Dissent and Roberts’ Maneuver
- After Justice Souter saw Roberts’ and Kennedy’s plans for Citizens United, he wrote a scathing dissent.
- John Roberts ensured Souter’s dissent was never published in the official record.
- Roberts scheduled a re-argument of the case, asking lawyers to address broad constitutional questions.
- This signaled the court’s intention to make a sweeping ruling beyond the specifics of the movie.
- Ted Olson then presented arguments that money is protected speech and corporations have the right to spend unlimited money in elections. Transcript: Anthony Kennedy 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. What the hell is re-argument? 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 Sirota 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 planner’s A-team moment. I love it when a plan comes together. 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. Speaker 2 Mr. Chief Justice, and may it please the court. David Sirota This was no longer a little argument about a specific campaign finance law and a dumb documentary. Speaker 2 Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech. David Sirota Olson and his client Citizens United were now resurrecting the old free speech arguments from Buckley v. Vallejo and from Lewis Powell’s Bellotti ruling that you heard about in episode 5. Essentially, they argued that money is protected speech. They also argued that corporations therefore have a constitutional right to spend unlimited money in elections
Time 0:47:22
Kennedy’s View on Corruption
- Anthony Kennedy, a former lobbyist, argued that money in politics is only corrupting when there is an explicit quid pro quo.
- He asserted that access and influence gained through campaign donations are not corrupting.
- Kennedy’s opinion stated that independent expenditures, including those by corporations, do not cause corruption or the appearance of corruption.
- This perspective contrasts with the idea that money buys undue influence in politics. Transcript: David Sirota 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.
Time 0:51:26
Prepared Response to Citizens United
- Many people reacted to the Citizens United decision with surprise, but conservatives seemed prepared.
- Immediately after the ruling, conservative and business groups filed papers to create unregulated dark money groups.
- This pre-planning suggests the decision was anticipated within conservative circles.
- Virginia Thomas even started setting up her organization, Liberty Central, while the decision was still being deliberated. Transcript: David Sirota 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. Speaker 2 The fact that they had this whole 501c4 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 Sirota Before the ruling in Citizens United came down, she and Leonard Leo of the Federalist Society filed initial paperwork for a not-for lobbying group called Liberty Central, a group Designed
Time 0:54:48
Bopp’s Reaction to Citizens United
- David Sirota jokes about James Bopp’s reaction to the Citizens United ruling, imagining a celebration.
- James Bopp Jr. reveals he was actually on a beach in Florida when he read the opinion.
- Bopp knew the decision and the vote beforehand, and was aware they would overturn the precedents.
- Although mostly pleased, Bopp was somewhat unsatisfied, because he didn’t get everything he wanted.
- Non-disclosing political groups dramatically increased their spending after the ruling.
- Bopp was upset that the disclosure requirements were upheld. Transcript: Speaker 2 Great job, everyone. James Bopp Jr. The reception will be held in each of our individual houses alone. David Sirota But alas, James Bopp wasn’t there. He was actually on the beach. James Bopp Jr. I don’t even remember why I was in Florida, but I remember very distinctly reading the opinion on a beach in Florida. Of course, I already knew the decision that they’d overturn the two precedents that needed to be overturned. And I knew the vote. He was psyched. David Sirota 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, non-profits and other non-disclosing political groups had spent zero dollars 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 United ruling that stuck in James Bob’s craw. James Bopp Jr. They upheld a report. The disclosure? Yeah,