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

Money Unlimited

How Chief Justice John Roberts orchestrated the Citizens Uniteddecision.

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

By having the case reargued, Roberts put the liberals in a boxand transformed the decision’s impact on political campaigns.

Illustration by Barry Blitt

When Citizens United v. Federal Election Commission was firstargued before the Supreme Court, on March 24, 2009, it seemed likea case of modest importance. The issue before the Justices was anarrow one. The McCain-Feingold campaign-finance law prohibitedcorporations from running television commercials for or againstPresidential candidates for thirty days before primaries. Duringthat period, Citizens United, a nonprofit corporation, had wantedto run a documentary, as a cable video on demand, called “Hillary:The Movie,” which was critical of Hillary Clinton. The F.E.C. hadprohibited the broadcast under McCain-Feingold, and Citizens Unitedhad challenged the decision. There did not seem to be a lot ridingon the outcome. After all, how many nonprofits wanted to rundocumentaries about Presidential candidates, using relativelyobscure technologies, just before elections?

Chief Justice John G. Roberts, Jr., summoned Theodore B. Olson,the lawyer for Citizens United, to the podium. Roberts’s voicebears a flat-vowelled trace of his origins, in Indiana. Unlike hispredecessor, William Rehnquist, Roberts rarely shows irritation orfrustration on the bench. A well-mannered Midwesterner, heinvariably lets one of his colleagues ask the first questions.

That day, it was David Souter, who was just a few weeks awayfrom announcing his departure from the Court. In keeping with hisdistaste for Washington, Souter seemed almost to cultivate his NewHampshire accent during his two decades on the Court. In responseto Souter’s questions, Olson made a key point about how he thoughtthe case should be resolved. In his view, the prohibitions inMcCain-Feingold applied only to television commercials, not toninety-minute documentaries. “This sort of communication was notsomething that Congress intended to prohibit,” Olson said. Thisview made the case even more straightforward. Olson’s argumentindicated that there was no need for the Court to declare any partof the law unconstitutional, or even to address the First Amendmentimplications of the case. Olson simply sought a judgment thatMcCain-Feingold did not apply to documentaries shown through videoon demand.

The Justices settled into their usual positions. The diminutiveRuth Bader Ginsburg was barely visible above the bench. StephenBreyer was twitchy, his expressions changing based on whether ornot he agreed with the lawyer’s answers. As ever, Clarence Thomaswas silent. (He was in year three of his now six-year streak of notasking questions.)

Then Antonin Scalia spoke up. More than anyone, Scalia wasresponsible for transforming the dynamics of oral arguments at theSupreme Court. When Scalia became a Justice, in 1986, the Courtsessions were often somnolent affairs, but his rapid-firequestioning spurred his colleagues to try to keep pace, and, asRoberts said, in a tribute to Scalia on his twenty-fifthanniversary as a Justice, “the place hasn’t been the same since.”Alternately witty and fierce, Scalia invariably made clear where hestood.

He had long detested campaign-spending restrictions, frequentlyvoting to invalidate such statutes as violations of the FirstAmendment. For this reason, it seemed, Scalia was disappointed bythe limited nature of Olson’s claim.

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

That’s right, Olson responded. All he was asking for was aruling that the law did not prohibit this particular documentary bythis nonprofit corporation during those thirty days. If theJustices had resolved the case as Olson had suggested, todayCitizens United might well be forgotten—a narrow ruling on a remoteaspect of campaign-finance law.

Instead, the oral arguments were about to take the case—and thelaw—in an entirely new direction.

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The historical context for the Court’s decision was clear. Inthe aftermath of the Civil War, the Court remained what it had beenbefore the war—a very conservative institution. DuringReconstruction, Congress and the states passed three new Amendmentsto the Constitution—the Thirteenth, the Fourteenth, and theFifteenth—to give the newly freed slaves the full rights ofcitizenship. Almost immediately, the Supreme Court did its best toundermine these new provisions. At the same time, the Justicesbecame accomplices in the excesses of the Gilded Age. In a seriesof cases, including Santa Clara, the Court thwarted attempts bystate and local governments to restrain commercial and corporateinterests.

This period of the Court’s history led into what is known as theLochner era, for the most famous case of its day. In an earlyattempt to protect workers from exploitation, New York passed a lawprohibiting bakery employees from working more than sixty hours aweek or ten hours a day. In Lochner v. New York (1905), the Courtdeclared the state law unconstitutional, on the ground that itinterfered with the “right of contract” of both the employer andthe employee. For a five-to-four majority, Justice Rufus Peckhamfound the New York law an “unreasonable, unnecessary and arbitraryinterference with the right of the individual to his personalliberty or to enter into those contracts in relation to labor whichmay seem to him appropriate or necessary for the support of himselfand his family.” In simple terms, the majority in Lochner turnedthe Fourteenth Amendment, which was enacted to protect the rightsof newly freed slaves, into a mechanism to advance the interest ofbusiness owners. The Court basically asserted that most attempts toregulate the private marketplace, or to protect workers, wereunconstitutional. The Lochner era reflected conservative judicialactivism, which has a long history at the Court. The decisions ofthe nineteen-thirties, which rejected central aspects of FranklinRoosevelt’s New Deal, also showed how conservative Justices wouldoverrule the democratically elected branches. It was only in theWarren Court era, in the fifties and sixties, that liberal judicialactivism became a force at the Court, as the Justices beganoverturning laws that violated the rights of minorities andwomen.

The conservatism of the Lochner era at the Supreme Court, and inthe broader political world, generated a backlash. Antitrustlegislation, food-safety rules, child-labor laws, woman’s suffrage,a tax on income—all came together under the broad rubric ofProgressivism. Theodore Roosevelt, who became President in 1901,made the movement his own.

Roosevelt won a landslide victory in 1904, helped in part byvast campaign contributions from corporations. He drew heavily fromrailroad and insurance interests, and in the last days before theelection he reportedly made a personal appeal for funds to HenryClay Frick, the steel baron, and other industrialists. Years later,Frick recalled of Roosevelt, “He got down on his knees to us. Webought the son-of-a-bitch and then he did not stay bought.” Almostas soon as Roosevelt won the election, he turned his attention topassing the first significant campaign-finance-reform act inAmerican history—trying to outlaw the very techniques he had justused to stay in office.

In 1907, Congress passed the Tillman Act, named for theeccentric rogue Pitchfork Ben Tillman, the South Carolina senatorwho sponsored the legislation. The law barred corporations fromcontributing directly to federal campaigns, and establishedcriminal penalties for violations. Loopholes proliferated,allowing, for example, individuals to give as much as they wantedto political campaigns and to be reimbursed for the contributionsby their employers. Still, the Tillman Act was a first step towardwhat Congress described as its goal: elections “free from the powerof money.”

That never happened. In subsequent decades, the power of moneyin politics only grew. After the Second World War, candidates beganto campaign principally by buying advertisements on television, andthat strategy created an ever-increasing need for cash. RichardNixon’s obsession with campaign fund-raising was one of theprincipal motivations that led to the Watergate scandals.