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Citizens United, U.S. Supreme Court decision, endures eight years after Obama prime-time attack

January 28, 2018

The U.S. Capitols chambers are no strangers to violence, though fortunately the anniversary of the last canings has passed the sesquicentennial mark. It was only eight years ago, however, that then-President Barack Obama chose to go after U.S. Supreme Court justices in that arena.

The occasion was his first State of the Union address and the topic was Citizens United, a case the justices had decided in a 5-4 ruling a week earlier, dealing an uppercut to the campaign finance reform movement by ruling interest groups political spending is protected speech under the First Amendment.

The decision rocked politics, and Mr. Obama predicted it would open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.

In the first election after the ruling election spending did in fact soar, with cash in congressional races leaping 46 percent, and continuing to tick up in the years since.

But spending on presidential elections has actually dropped since the ruling, challenging the notion of runaway campaigns Mr. Obama predicted.

I think the impact was enormously exaggerated by opponents of the decision right from the beginning, said attorney Ted Olson who argued the case before the Supreme Court on behalf of the plaintiffs.

Thats about what Citizens United expected when it went to court in the first place.

Back in 2008, the conservative group had tried to air a documentary critical of Hillary Clinton, at that time the favorite to win the Democratic nomination for president.

The group wanted to run ads touting the film and its blockbuster title, Hillary: The Movie. At the time, however, federal law prohibited a corporation from airing the ads, deeming them anti-Clinton electioneering subject to the 2002 McCain-Feingold campaign finance restrictions.

When we first got to the Supreme Court or main interest was just to show the documentary and some ads, said Michael Boos, the executive vice president and general counsel of Citizens United.

Conservatives including President George W. Bush who signed it into law believed the courts would declare McCain-Feindold unconstitutional, eliminating its prohibition of corporations using their general treasury dollars to fund any electioneering communications within 30 days before a primary and 60 days before a general election.

Instead the courts largely upheld the law, including a 2003 decision by the Supreme Court.

But the retirement of Justice Sandra Day OConnor, replaced by Justice Samuel A. Alito, ushered in a new era, and the court began suggesting it was open to a rethink.

In 2008 Mr. Obama delivered a jolt to the system, reneging on his pledge to accept public financing for the presidential election. Instead, he became the first major party candidate to tap the exponentially higher sums available outside the public financing limits.

It was a decision the New York Times said will quite likely transform the landscape of presidential campaigns, injecting hundreds of millions of additional dollars into the race.

Even after Mr. Obama defeated Mrs. Clinton in the primary, Citizens United pursued its case, reaching the high court in the spring of 2009.

Just where the justices would come down remained a mystery, as each day passed without a ruling. Mr. Boos said he sat in the court daily, wondering what on earth was happening with the courts famously opaque operations.

He was there in the gallery on the last day of the spring session, too, as Chief Justice John G. Roberts Jr. ran down the last batch of rulings. Only then, Mr. Boos said, did the words, Citizens United, pass his lips and that was to announced the court wanted to expand the case and hold a rare second round of oral arguments.

It was when I heard that I realized we were going to be a major precedent, Mr. Boos said.

Kagan snared by book ban

When the justices first heard the case, the government was represented by Deputy Solicitor General Malcolm Stewart who, when cornered by Justice Alito, said that under current law, the government could ban books that had pointed political content. While that answer was correct, it seemed to take the justice back a bit, Mr. Boos said. He and Mr. Olson hit that point in briefs before the rehearing.

When the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong and it is as sure a sign as any that a return to first principles is in order, they wrote.

Answering that charge fell to the Obama administrations new solicitor general, who happened to be Elena Kagan. Long a legal academic and past dean of Harvard Law, the rehearing of Citizens United on Sept. 9, 2009, marked the first case of any kind at any level Ms. Kagan had ever argued in public, Mr. Olson said. She tried to walk back the claim about books, but when the justices asked her if pamphlets could perhaps be banned she said in some cases they could.

Right then I knew wed won the case, Mr. Olson recalled. I mean, pamphlets? Have you ever heard of Thomas Paine?

David Bossie, Citizens Uniteds chairman, remembers the rehearing as a momentous day in every aspect.

It was a very surreal time for us, he said. Wed all been looking at the Supreme Court, wondering what was going to happen, and then here I am sitting across the aisle from senators John McCain and Russ Feingold the guys whose name is on the law were trying to overturn. It was a remarkable thing to be sitting right there with them, a whos who of Washington lawyers, legal writers and members of Congress.

At first, Mr. Bossie said he even felt a frisson of sympathy for Ms. Kagans lack of courtroom experience, especially when he looked at his legal team that included, in addition to Mr. Olson, famed First Amendment lawyer Floyd Abrams, who represented Sen. Mitch McConnell.

Shes obviously a brilliant lawyer but from an experience standpoint, cmon, Mr. Bossie said.

The decision came Jan. 21, 2010. Justice Anthony M. Kennedy, now bolstered by Justice Alitos rise to the high court, wrote the 5-4 decision overturning a 1990 precedent and peeling away part of the 2003 ruling that upheld McCain-Feingold.

Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime, Justice Kennedy wrote.

Obama wrong on foreign money

Six days later, during his maiden State of the Union, Mr. Obama chided the justices sitting before him, claiming falsely that even foreign corporations could now influence our elections. Justice Alito mouthed not true.

I thought it was outrageous that Obama did that, Mr. Olson said. While disturbed by the false nature of some of his comments, Mr. Olson saw it more as a violation of Washingtons manners. He was dead wrong about the foreign money thats always been illegal and wasnt a part of the case but I found the whole thing, him attacking the justices who attend the State of the Union as a courtesy, incredibly rude.

Mr. Obama said the ruling should not stand, and it became a rallying cry for liberal groups who raise bundles of cash and mount endless petition drives trying to overturn it.

Erwin Chemerensky, the dean of Boalt Hall, the University of California at Berkeleys law school, still believes the ruling was in error, and says grim predictions have come true.

What I feared would happen has happened, Mr. Chemerenski said. Corporations can and do spend large amounts of money in election campaigns.

Yet Mr. Chemerensky says that in addition to the huge totals, the lack of disclosure is equally troubling. Before Citizens United, groups that wanted to run ads in the final days of campaigns had to abide by strict Federal Election Commission rules.

After Citizens United, corporations could use their treasuries which led to proliferation of super Political Action Committees, or Super PACs. With no limit on the amount of money that can be contributed to a Super PAC, and with requirements on disclosing donors less stringent than those regarding spending by campaigns or regular PACs, these outside groups have raised enormous sums.

Mr. Chemerinsky argued that leaves the public without the ability to make informed decisions. I do worry because we should know where it comes from.

None of the experts interviewed by The Washington Times believes Citizens United is in any near-term jeopardy. The 2016 election of Donald Trump and his appointment of Justice Neil M. Gorsuch has probably cemented the decision.

If Hillary Clinton had won there would be five votes to overturn Citizens United, Mr. Chemerensky said. But she didnt. Citizens United is secure.

That opinion is shared by most experts, including Bradley Smith, a legal scholar and the chairman and founder of the Center for Competitive Politics.

His group was involved with SpeechNow vs. FEC, a case that came before the D.C. Circuit Court of Appeals in an en banc hearing right on the heels of Citizens United. The judges there mentioned Citizens United and unanimously ruled that limits on what individuals can give to groups like SpeechNow were unconstitutional.

The two rulings have created a situation in which the really big money to Super PACs has come not from the corporate boards, which have turned out to be averse to having their names attached to partisan politics, but from wealthy individuals.

And even that has proven a smaller role than some believe. Among outside spending in federal elections, the so-called dark money whose source arent fully disclosed accounts for a good chunk, but when that is put into the total spending column it amounts to less than 4 percent, Mr. Smith said.

Open Secrets puts conservative groups in a commanding lead among the dark money rankings. Although Open Secrets top ten groups are split evenly between liberal and conservative leanings, the top three groups, accounting for more than $550 million since 2008, are conservative.

Still, that money is far less than Mrs. Clinton raised and spent in her 2016 presidential bid. In that race her campaign topped $1.1 billion, which was essentially twice what then-candidate Donald Trump spent even though Mrs. Clintons total was less than Mr. Obama had pulled together in 2012, two years after Citizens United.

Theres been some amount of dark money around always and it can be a pejorative term, Mr. Smith said. He pointed to the U.S. Chamber of Commerce, one of the biggest players. Sure, voters may not know every group that contributes to the Chamber of Commerce but its not like, oh, the Chamber of Commerce! Whats their agenda? Voters have a pretty good idea what it is about.

I think theyve been good for the system overall, Mr. Smith concluded of the Citizens and other rulings. None of the catastrophe situations opponents wailed would come about have come about, and there have been a lot of competitive races.