The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Wisconsin Right to Life (WRTL) won in the lower court and the Federal Election Commission brought the case back to the Roberts Court. This time, O’Connor was no longer on the Court. And the eventual decision in this case clearly signaled that the Roberts Court was inclined to inflict a major wound on the McCain-Feingold Act.

  WRTL had wanted to run ads during the 2004 election campaigns of Senators Russell Feingold and Herb Kohl of Wisconsin to urge voters to tell Feingold and Kohl to oppose the filibuster of President George W. Bush’s judicial nominees. In the Supreme Court, WRTL, represented by James Bopp Jr., a lawyer from Terre Haute, Indiana, argued that its ads were true issue ads and were not express advocacy or the “functional equivalent” of express advocacy—the test devised by the Rehnquist Court in its 2003 McConnell decision. As bona fide issue ads, Bopp argued, there was no justification for imposing the ban on corporate funding of the ads or for requiring WRTL to pay for the ads through a political action committee. To do so violated First Amendment rights of free speech, free association, and petitioning the government, charged Bopp.

  On June 25, 2007, the Court, in a 5–4 ruling, agreed with WRTL and took a major step toward undoing the corporate-union funding ban in McCain-Feingold. Although Chief Justice Roberts wrote a narrow decision holding that the corporate electioneering ban was unconstitutional as applied to these particular ads, he crafted a new test for what kind of advertisements would fall within the law’s prohibition on corporate and union funding. And his test broadened the field of ads that would go unregulated.

  Roberts said that an advertisement is “the functional equivalent of express advocacy” only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” In applying that test, he said, the advertiser’s intent and the advertisement’s effects are irrelevant.

  Roberts held that WRTL’s ads were plainly not the functional equivalent of express advocacy because they focused on a specific legislative issue and did not mention an election, a political party, or a candidate. Unless the ads explicitly urged votes for or against a particular candidate, he explained, imposing the law’s ban would be censorship of core political speech protected by the First Amendment.

  “Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” wrote Roberts. His decision concerned only the constitutionality of the electioneering ban as it applied to these particular advertisements. Roberts specifically stated that the case did not present the occasion to reconsider the Court’s 2003 decision in McConnell v. FEC, upholding the facial constitutionality of the ban.

  A word about “facial” attacks on laws: Facial challenges argue that every application of a statute is unconstitutional. Those bringing this type of challenge have a heavy burden of proof and courts generally disfavor such challenges.

  Roberts’s opinion in WRTL was joined in full only by Justice Alito, who, in a separate and almost prescient concurring opinion, noted that if courts or the FEC applied Roberts’s test in a way that chilled political speech, “we will presumably be asked in a future case to reconsider the holding” in McConnell, the decision upholding the constitutionality of the law’s ban.

  Scalia, Kennedy, and Thomas agreed with the result—that the ban did not apply to WRTL’s ads—but not with Roberts’s reasoning. They would have gone much further in undoing the law.

  Scalia, Kennedy, and Thomas said that the effect of Roberts’s opinion was to overrule the Court’s 2003 decision in McConnell v. FEC without saying so directly. Scalia, writing for the trio, said that he would have overruled McConnell outright, as well as the justices’ 1990 decision upholding the constitutionality of the state ban on corporate independent expenditures in Austin v. Michigan Chamber of Commerce. He wrote that there was no test that could separate issue speech from election speech with the clarity “that unchilled freedom of political speech demands.” Scalia sarcastically accused Roberts of “faux judicial restraint” amounting to “judicial obfuscation.”

  The four dissenters in the WRTL decision agreed only that the majority had effectively overruled McConnell. “From early in the 20th century through the decision in McConnell, we have acknowledged that the value of democratic integrity justifies a realistic response when corporations and labor organizations commit the concentrated moneys in their treasuries to electioneering,” wrote Justice David Souter for the dissenters. As for applying the electioneering ban to WRTL’s ads, Souter said, any “alert voters” who saw or read the ads would have understood that WRTL was telling them that Senator Feingold’s position on judicial filibusters was reason to vote against his reelection.

  Souter noted that WRTL also had a PAC, funded by individual donations, which had been active over the years in elections involving Senator Feingold. Throughout the 2004 election campaign, he said, WRTL “made no secret of its views” about who should win the election and explicitly tied its position to the filibuster issue. Its PAC issued press releases saying, for example, “Send Feingold Packing!” But instead of using its PAC money to fund the television and radio ads at issue in the high court, it chose to use its general treasury boosted by corporate contributions.

  Because of the majority’s decision, Souter said, the federal law’s other ban on direct campaign contributions by corporations and unions also would be easily circumvented. “The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running ‘issue ads’ without express advocacy, or by funneling the money through an independent corporation like WRTL.”

  Scalia’s criticism of Roberts for “faux judicial restraint” was ironic. During the 2006–07 term in which the WRTL case was decided, Roberts, Scalia, and their fellow conservatives faced similar criticism from their more liberal colleagues and from a number of academics and advocacy groups who charged that the conservative wing of the Court was engaging in “stealth” overrulings of precedents in other areas. For example, the 5–4 decision upholding the federal partial-birth abortion law in Gonzales v. Carhart in 2007 had the practical effect, claimed critics, of overturning the 5–4 decision in Stenberg v. Carhart in 2000, striking down a nearly identical Nebraska law. And also in 2007, after the 5–4 ruling in Hein v. Freedom From Religion Foundation, little remained of a 1968 decision giving taxpayers the right to challenge government spending that might violate the establishment clause.

  Was Roberts in his WRTL decision exercising the kind of restraint that he promised in his Senate confirmation hearings? Or, as his critics charged, was he engaged in a step-by-step dismantling of campaign finance limits so as to cushion the “jolt” to the legal system caused by overruling precedents?

  Whether “faux judicial restraint” or the “minimalism” that he espoused during his confirmation hearings, Roberts clearly was not ready to deal a death blow to a key section of the McCain-Feingold campaign finance law—at least not yet.

  The decision in FEC v. WRTL was above all a warning shot to campaign finance reform groups that there were now five potential votes for that end game. And the decision was a door of opportunity for Citizens United.

  On the heels of the WRTL decision came another blow to the McCain-Feingold Act in the 2007–08 term. Jack Davis, the New York millionaire running for a U.S. House seat, challenged the so-called millionaires’ amendment in the law in Davis v. Federal Election Commission. Under that provision, when a candidate’s spending of his own personal funds exceeded $350,000, his opponent could receive three times the usual limit on individual contributions ($2,100 at the time) and also political party expenditures above the usual limit. Once the opponent exceeded the $350,000 amount, the normal limits would apply. Congress enacted the provision out of concern that candidates of modest means would not be able to compete effectively as elections grew more and more expensive.

  Davis
argued that the amendment violated the First Amendment because it burdened his political expression and deterred other self-financing candidates from running for Congress by giving benefits to their opponents. A lower court disagreed with Davis and upheld the provision. The Roberts Court reversed in a 5–4 decision.

  The chief justice assigned the majority opinion to Justice Alito. In his opinion, Alito rejected the government’s argument that the amendment’s different financing limits were justified because they “level electoral opportunities for candidates of different personal wealth.” Alito said the Court had never recognized that as a legitimate government objective. Preventing corruption or the appearance of corruption, he emphasized, are the only legitimate or compelling government interests for restricting campaign finances that the Court’s decisions have recognized.

  The millionaires’ amendment, Alito wrote, “requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite [the amendment], but they must shoulder a special and potentially significant burden if they make that choice.”

  The dissenting justices—Stevens, Souter, Ginsburg, and Breyer—countered that the amendment did not burden or chill any speech. “On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign,” wrote Stevens.

  And, the dissent added, the Court had never said that only the interest in combating corruption or its appearance can justify congressional regulation of campaign financing. Stevens noted, for example, the 1990 decision upholding a law banning corporate independent spending, a ban justified, according to the decision, by the interest in combating “the corrosive and distorting effects of immense aggregations of wealth.” What Stevens suspected, but did not yet know with certainty, was that the 1990 decision was on life support.

  Six months after the WRTL decision, the Federal Election Commission issued a new rule and a 17-page explanation of the meaning of Roberts’s new test for electioneering communications covered by the corporate-union financing ban. In the summer and fall of 2008, as the election season ramped up, business and labor groups wasted no time in testing the Roberts test.

  The U.S. Chamber of Commerce spent $8.8 million in just five weeks on issue ads that mentioned House and Senate candidates’ names in ten states, and the union-backed American Rights at Work spent $2.3 million in one month on broadcast issue ads featuring Senate candidates in five states, according to the Center for Public Integrity, a non-partisan, non-profit investigative news organization.

  The three Roberts Court decisions—the Vermont campaign limits challenge, the millionaires’ amendment case, and the WRTL case—demonstrated the conservative majority’s increasing hostility toward and impatience with federal and state regulation of money in elections.

  With the WRTL victory in particular in mind, Citizens United’s Bossie and Boos had made their decision about a lawyer for their lawsuit. They found “true passion,” campaign finance expertise, and a winning track record in the successful lawyer for WRTL and the Vermont challengers: James Bopp Jr.

  A tall man, with a thinning shock of white hair and blue eyes, Bopp is a familiar face to the justices. During the abortion litigation battles in the 1980s to the early 1990s, Bopp, as general counsel to the National Right to Life Committee, defended anti-abortion laws and restrictions and brought creative lawsuits intended to undermine and eventually overturn the landmark 1973 abortion decision, Roe v. Wade. Since the mid-1990s, Bopp, vice chairman of the Republican National Committee, has waged a relentless, often successful war against campaign finance laws and their disclosure requirements. He also has fought state restrictions on campaign speech by judicial candidates through lawsuits filed across the country. In his attacks on campaign finance and judicial speech regulations, his clients frequently are anti-abortion groups.

  In 1996, Senator Mitch McConnell (R-KY), also an aggressive opponent of campaign finance regulations, helped Bopp set up the non-profit James Madison Center for Free Speech, formed in response to the “concerted attack on political speech which is at the core of the First Amendment,” according to the center’s statement of purpose. The center, funded by conservative donors, supports Bopp’s litigation efforts.9

  Viewed as ultra-conservative even by some in his own party, Bopp was among the GOP lawyers working for George W. Bush in the contentious Florida election in 2000. In 2009, as a member of the Republican National Committee, he proposed a ten-point purity test for Republican candidates. Those candidates would have to agree to eight of the ten principles in order to get financial support. The principles included opposition to federal funding of abortion, to same-sex marriage, and to amnesty for illegal immigrants.

  Bopp filed Citizens United’s lawsuit in federal district court in Washington, D.C., to begin their road to the Supreme Court.

  “We were consumed every single day by the question of whether we would get to the Supreme Court,” said Bossie.

  The district court subsequently ruled in 2008 that the law’s corporate electioneering provision was constitutional as applied to Hillary: The Movie because the movie was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” And, although the ads for the movie were not subject to the law’s corporate financing ban because they were not express advocacy or its functional equivalent, Citizens United must disclose its funding sources, ruled the court.

  With that court’s decision, Citizens United’s path to the Supreme Court was now clear.

  CHAPTER 11

  “The greatest living issue confronting us today is whether the corporations shall control the people or the people shall control the corporations.”

  —Montana newspaper, 1906

  The opening of the October 2008–09 Supreme Court term offered little hint of the drama that would mark the term’s ending.

  By the time Citizens United had filed its challenge in August 2008, a new crop of law clerks was already deep into preparations with their justices for the first week of arguments and into some of the traditions that lighten their workloads. One very old tradition was the clerks’ weekly Happy Hours.

  The responsibility for organizing the Happy Hours rotated among the chambers and some justices would occasionally participate. The planning ranged from fairly simple to elaborate. The Summer Olympics had ended shortly before the term’s opening and some of the Happy Hours featured improvised Olympic Games. Later in the term, the clerks would hold a New England–style clambake in honor of the justice from New Hampshire—David Souter, whose retirement would contribute to the drama toward the end of the term.

  But the term itself appeared to be something of a snooze at the beginning. There were no cases with the potential blockbuster status of the prior term’s Second Amendment gun ruling or the Guantánamo Bay detainees’ challenge.

  Appearances can be deceiving, however, especially at the Supreme Court.

  “There are several species of tough and important cases at the Court,” said a former clerk from that term. “The high-profile cases—they often are huge when decided, but then they go away. There also are those institutional cases that really might not be high profile immediately, but they have a deeper and wider impact on the [legal] system and their presence is felt more significantly at the Court because they live on.”

  Two cases fell into that latter category during the 2008–09 term: Melendez-Diaz v. Massachusetts, and Ashcroft v. Iqbal. In Melendez-Diaz, justices crossed the ideological divide to reach the ruling; but in Ashcroft, the outcome reflected the
traditional ideological divide among them.

  The Melendez-Diaz case involved the Sixth Amendment’s confrontation clause, which guarantees the right of an accused to confront—to cross-examine—the witnesses against him. Luis Melendez-Diaz challenged his drug conviction on grounds that the prosecution violated his confrontation clause right by admitting laboratory test reports without allowing him to cross-examine the analysts who prepared the reports.

  This case followed the Court’s confrontation clause revolution begun in 2004 with a Scalia-authored opinion in Crawford v. Washington. Looking to history and the clause’s “original meaning,” Scalia in Crawford said that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

  The Crawford decision in 2004 was unanimous, but the Court has split 5–4 several times since then over what is “testimonial,” and the justices’ alignments have been unusual. Scalia is usually joined by Thomas and their more liberal colleagues, Ginsburg and until their retirements, Stevens and Souter. And Kennedy regularly leads the dissenters, joined by conservatives Roberts and Alito and the liberal Breyer.

  Melendez-Diaz was a 5–4 outcome to require lab analysts to testify about their reports unless the criminal defendant waives his right in some way. The dissenters claimed the majority had “swept away” a century of practice in which scientific analysis could be admitted into evidence without testimony by the analyst. They predicted chaos and delays as states tried to produce analysts for trial, analysts who often conduct hundreds of drug tests per week or month.