Interesting Facts About the Citizens United Ruling

I’m reading Jeffrey Toobin’s new book The Oath: The Obama White House and the Supreme Court and there is some very interesting information about the Supreme Court’s Citizens United ruling that I wasn’t aware of. There are lots of fascinating facts about how the case was decided that are worth taking a look at. Toobin discussed much of this in an article in the New Yorker.

First, I did not know that this was Justice Sotomayor’s first case as a justice, or that it was argued a month before the Supreme Court’s term actually began (on Sept. 9, 2009, when the court’s term famously begins on the first Monday of October). But that was actually the second time the oral argument took place. It was first heard on March 24, 2009, during which Citizens United, the plaintiffs, argued only that the court should reach a very narrow conclusion on an “as-applied” basis that the McCain-Feingold campaign finance law did not apply to non-profit organizations.

Perhaps some background is required here. The McCain-Feingold law (also known as the Bipartisan Campaign Reform Act, or BRCA) set limits on electioneering communications. It said that corporations could not fund television commercials in support or opposition to a candidate running for office within 30 days of a primary election or 60 days of a general election. Citizens United made a movie about how Hillary Clinton was evil and wanted to show it on cable TV on video on demand right before the 2008 election. The FEC ruled, on the basis of the BCRA, that they could not do so and that is what prompted the lawsuit.

The attorney for Citizens United was Ted Olson and he made a very narrow argument. He did not argue that the court should overturn the law, only that they should rule that the law did not apply to documentaries or to non-profit organizations. But during the March 24 oral argument the conservatives on the court made it very clear that they wanted to overturn those limitations entirely. He was only arguing that, as a matter of statutory interpretation, the law did not apply in this particular case, not that the law should be overturned.

But after oral argument, during their weekly conference, the conservatives had five votes to go much further than even the plaintiffs had argued. They didn’t want to just interpret the statute in a narrow way, they wanted to overturn the law entirely (not the entire BCRA, but the entire section dealing with TV commercials immediately before an election). Roberts initially was to write the majority opinion, which was going to be narrower than that, while Kennedy wrote a much broader concurring opinion saying that the court should have gone much further. Toobin explains what happened:

Roberts assigned the Citizens United opinion to himself. Even though the oral argument had been dramatic, Olson had presented the case to the Court in a narrow way. According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary, presented on video on demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say this much and no more.

At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.

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