to the highest court in the land, where precedent is set. That does happen. But just as often, cases are engineered. Dedicated lawyers and activists look at laws and identify potential challenges. They pick through scenarios and attempt to create a situation—a set of circumstances—that forces courts to act. That was the history of Citizens United .
David Bossie came of political age in the Clinton scandal years, joining a conservative nonprofit called Citizens United. He spent a number of years doggedly researching the shady financial practices of the Clintons, and became the group’s president in 2000.
Bossie ultimately turned Citizens United into a movie studio, devoted to conservative documentaries that might aid in elections. He wasn’t the first to come up with the idea. Liberal filmmaker Michael Moore had created Fahrenheit 9/11 , his hit job on George W. Bush’s war on terror, with the aim of influencing the 2004 presidential race. He debuted it five months before election day, and publicly admitted that his goal was to energize anti-Bush forces and increase turnout for John Kerry. Moore’s documentary was technically a movie—covered completely by the First Amendment—yet every time a thirty-second promotion for it ran on TV, it was the functional equivalent of a campaign ad.
Bossie noticed. He reached out to James Bopp Jr., a lawyer who’d made a reputation forcing the Supreme Court to confront the free-speech hypocrisies of campaign finance law. He’d already helped strike down part of McCain-Feingold. Bopp ended up working with Bossie on Hillary: The Movie , an exposé of the former First Lady’s business dealings and checkered political past. Under Bopp’s guidance, the documentary team took special care to craft the script in a way that would challenge several provisions of McCain-Feingold, including its ban (by companies, unions, and outside groups) on issue ads in the run-up to an election, as well as its disclosure regime. And then Citizens United prepared to roll it out in 2007, to tie it to the presidential election and force the constitutional question.
“The movie was designed to highlight the absurdity of this law,” says Bopp, who works out of Indiana. “We started out with a big advantage in this case—we had the law on our side. ‘Congress shall make no law’—that’s a command, not a suggestion. How can a movie about Hillary be legal, but an ad about the movie not be?”
Citizens United went straight to the FEC to get a ruling, and, unsurprisingly, the FEC ruled that it was in essence an election ad, barred by McCain-Feingold. The group appealed it up, and a federal court upheld the bar on running any TV ads or video-on-demand. When it came time to argue it to the Supreme Court, Bossie enlisted Olson, who he knew held a stellar track record in front of the high court.
Olson felt that the best way to win the case was to keep it focused on that “big banana”—the basic question of free speech. So he narrowed the scope. “We were thinking about disclosure, because it was also an issue in this situation. There was an important point about just how much disclosure this little group ought to be forced to do under McCain-Feingold, and would they be harassed or intimidated,” he recalls. “But we really wanted to win on the unconstitutionality of restricting the use of money and speech per se, and we were worried if we took too much time in the [Supreme Court] briefing on the disclosure point, we’d weaken our ability to get that big banana.”
Olson also (wisely) bet that the Court would want a “fallback”—a way to soften the blow of the decision. And he bet that that fallback might be the Court’s full embrace of the law’s disclosure regime. He couldn’t have been more correct. The decision, written by Justice Anthony Kennedy, was bold on the free-speech point. The Court had spent years coddling the finance-restriction crowd, but the Citizens case highlighted too
David Bossie came of political age in the Clinton scandal years, joining a conservative nonprofit called Citizens United. He spent a number of years doggedly researching the shady financial practices of the Clintons, and became the group’s president in 2000.
Bossie ultimately turned Citizens United into a movie studio, devoted to conservative documentaries that might aid in elections. He wasn’t the first to come up with the idea. Liberal filmmaker Michael Moore had created Fahrenheit 9/11 , his hit job on George W. Bush’s war on terror, with the aim of influencing the 2004 presidential race. He debuted it five months before election day, and publicly admitted that his goal was to energize anti-Bush forces and increase turnout for John Kerry. Moore’s documentary was technically a movie—covered completely by the First Amendment—yet every time a thirty-second promotion for it ran on TV, it was the functional equivalent of a campaign ad.
Bossie noticed. He reached out to James Bopp Jr., a lawyer who’d made a reputation forcing the Supreme Court to confront the free-speech hypocrisies of campaign finance law. He’d already helped strike down part of McCain-Feingold. Bopp ended up working with Bossie on Hillary: The Movie , an exposé of the former First Lady’s business dealings and checkered political past. Under Bopp’s guidance, the documentary team took special care to craft the script in a way that would challenge several provisions of McCain-Feingold, including its ban (by companies, unions, and outside groups) on issue ads in the run-up to an election, as well as its disclosure regime. And then Citizens United prepared to roll it out in 2007, to tie it to the presidential election and force the constitutional question.
“The movie was designed to highlight the absurdity of this law,” says Bopp, who works out of Indiana. “We started out with a big advantage in this case—we had the law on our side. ‘Congress shall make no law’—that’s a command, not a suggestion. How can a movie about Hillary be legal, but an ad about the movie not be?”
Citizens United went straight to the FEC to get a ruling, and, unsurprisingly, the FEC ruled that it was in essence an election ad, barred by McCain-Feingold. The group appealed it up, and a federal court upheld the bar on running any TV ads or video-on-demand. When it came time to argue it to the Supreme Court, Bossie enlisted Olson, who he knew held a stellar track record in front of the high court.
Olson felt that the best way to win the case was to keep it focused on that “big banana”—the basic question of free speech. So he narrowed the scope. “We were thinking about disclosure, because it was also an issue in this situation. There was an important point about just how much disclosure this little group ought to be forced to do under McCain-Feingold, and would they be harassed or intimidated,” he recalls. “But we really wanted to win on the unconstitutionality of restricting the use of money and speech per se, and we were worried if we took too much time in the [Supreme Court] briefing on the disclosure point, we’d weaken our ability to get that big banana.”
Olson also (wisely) bet that the Court would want a “fallback”—a way to soften the blow of the decision. And he bet that that fallback might be the Court’s full embrace of the law’s disclosure regime. He couldn’t have been more correct. The decision, written by Justice Anthony Kennedy, was bold on the free-speech point. The Court had spent years coddling the finance-restriction crowd, but the Citizens case highlighted too
Similar Books
