The Roberts Court: The Struggle for the Constitution (40 page)

Citizens United
’s direct effect was to free corporations and unions to use their treasury funds to air political ads advocating the election or defeat of federal and state candidates. They no longer were required to use the vehicle of a PAC, financed through individual contributions that were limited by law. However, roughly a month after the Court ruled, a federal appellate court in Washington, D.C., relying on the
Citizens United
decision, held that if limits on independent expenditures were unconstitutional, then contributions to PACs that make only independent expenditures (not coordinated with a candidate) could not be constitutionally restricted. That combination of
Citizens United
and the ruling in
SpeechNow.org v. FEC
gave birth to the “Super PACs” that dominated the 2012 election season. These Super PACs can raise and spend unlimited amounts as long as they do it independent of any candidate.

Whether Super PACs are really independent of candidates is debatable because a number of former campaign aides moved to create them
and then used their funds on behalf of their former bosses. Federal law requires Super PACs to disclose their donors, and the Roberts Court, all except Justice Thomas, affirmed the constitutionality and wisdom of such disclosure and reporting requirements.

However, campaign donors can evade those reporting requirements—and they do—by channeling their money through a 501(c)(4) entity, a tax-exempt, non-profit organization which, under the tax law, must show that its primary purpose is to promote social welfare, not to engage in political campaigning. Those groups include, for example, the Republican Crossroads GPS, a 501(c)(4) entity, and the Super PAC American Crossroads.

By August 5, 2012, 718 groups organized as Super PACs reported total receipts of $319,137,071 and total independent expenditures of $181,176,796 in the 2012 election cycle, according to the non-partisan Center for Responsive Politics.

Together, the
Citizens United
and
SpeechNow
decisions created a dual system of financing campaigns. Individuals may contribute directly to candidates, but they are limited to donating a total of $5,000 in an election cycle in order, as the landmark
Buckley v. Valeo
said, to avoid quid pro quo corruption or the appearance of corruption. And yet, unlimited money may be contributed to Super PACs, and by mid-August 2012, a small group of the wealthiest Americans was dominating Super PAC donations.

Citizens United
also contributed to a new dynamic among candidates—whether incumbents or neophytes—running for Congress, said the longtime congressional scholar Norman Ornstein of the American Enterprise Institute, author with Thomas Mann of
It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism
. Candidates tell Ornstein that they now have to raise money not only for their own campaigns and the “team” (their political party) but even more funds to try to counteract the anonymous Super PAC that may parachute into their district to spend unlimited funds to oppose them.
⁶

“Now, I’m all for everybody having a voice in campaigns, but a campaign, if it is a market where voters are consumers and they are trying to make a choice, the core of the dialogue should be between the candidates and those who are making a choice,” added Ornstein, a self-described “raging moderate.” If candidates are drowned out because others have superior monetary resources, he explained, “it’s like saying, ‘Everybody can speak but I’m going to put a gag on you, candidate, and give you a megaphone large enough that you can shatter everybody’s eardrums. Oh, and by the way, you’re both equal.’ That’s what Justice Kennedy helped to bring about in this case. I think it’s troubling, to say the least.”

Ornstein, who was present at the difficult birth of the 2002 McCain-Feingold campaign finance law, argues that what partly motivates the Roberts Court is “an enormously high level of naïveté” based on lack of experience in the real world. “I mean Kennedy as much as anybody,” he added. “He is one of these guys who goes to cocktail parties and dinners around town. He likes to be a part of the Washington fabric.”

With the departure of O’Connor, a former state legislator and elected state judge, Ornstein noted, the Court now has justices who have never been involved in politics. “They don’t know anything about the real world of campaigns. Never been involved in the legislative process. They don’t have any sense of the kind of pressures that exist in campaigns.”

The
Citizens United
decision, however, changed “every facet of our existence,” from greater name recognition to more donors, said David Bossie, the organization’s president. “We won bigger than we went for. At the end of the day, we got more than we ever hoped to accomplish by going to the Supreme Court. It’s so hard to get to the Supreme Court and so hard to get them to take your case, much less decide it. From about June 2004 up until January 21, 2010, we worked every day to get to that moment.”

Citizens United
quickly became the Roberts Court’s most unpopular decision and the centerpiece of critics’ continuing claims that the Court
was pro-business. It ranked with the Court’s Seattle-Louisville school decision and Second Amendment gun ruling as the most aggressive decisions yet of the conservative Court. It also would be a major focus in the confirmation hearings of the next nominee to the Court.

The Roberts Court, however, was not done with campaign finance limits after
Citizens United
. Before the term ended, the justices, in an aggressive and widely criticized act, temporarily blocked Arizona’s public campaign finance system until they could decide whether to hear a constitutional challenge to that system. The Court’s action came in the middle of an election in which a number of candidates for state offices were anticipating the system’s matching funds.

The Court would agree to hear the challenge in the following term. When that time came, it would not be Kennedy locking horns with Stevens on the First Amendment, but Roberts and the Court’s newest justice in what one scholar called “a doctrinal death match between two incompatible world views.”
⁷

“From day one, we always had the Supreme Court in the back of our minds. We didn’t want to get waylaid and some other case gets to the Supreme Court first.”

—Former Florida attorney general Bill McCollum, 2012

A
n exuberant crowd of about three hundred supporters filled the East Room of the White House shortly before noon on March 23, 2010. Just two months after the Roberts Court had jolted the political world with
Citizens United
, its blockbuster campaign finance ruling, the stakes in the upcoming midterm elections and beyond were about to soar again.

As Democratic congressional leaders, cabinet members, and friends hovered around him, President Barack Obama, using twenty-two different pens, signed into law the signature success of his domestic agenda—a success that many of his predecessors going back to Teddy Roosevelt had failed to achieve. The Patient Protection and Affordable Care Act (ACA for short, or Obamacare to its critics) had survived a contentious partisan battle in Congress to offer the hope of health insurance to 50 million uninsured Americans.

Seven minutes after Obama put down his pen, a lawyer in the office of Florida Republican attorney general Bill McCollum electronically filed the first lawsuit challenging the new law’s constitutionality in a federal district court in Pensacola, Florida.
¹
By the 5 pm close of business that day, three additional challenges had been lodged with federal
courts in Richmond, Virginia; Lynchburg, Virginia; and Detroit, Michigan. They had discharged the opening volley in a fierce legal and political battle over the most sweeping social legislation in decades.

Besides their legal arguments, those separate lawsuits shared a common pedigree: the architects of the four challenges were some of the most conservative members of the Republican Party and associated organizations.

There was McCollum, leading ten other Republican state attorneys general whose numbers eventually would swell to twenty-six; Tea Party favorite Ken Cuccinelli, the attorney general of Virginia; Liberty University, founded by the evangelical fundamentalist Jerry Falwell and run by his son, Jerry Falwell Jr.; and the Thomas More Law Center, a conservative Christian legal organization created in 1999 by a prominent Roman Catholic and the founder of Domino Pizza, Tom Monaghan.

Regardless of the courts in which the lawsuits were filed, all four had one ultimate, planned destination—the U.S. Supreme Court—and one time frame: as fast as possible. Although the lawsuits raised similar constitutional challenges, each of their leaders, anticipating a historic showdown with the White House, wanted to have the case that the justices would review. However, conventional wisdom favored the suit by the Republican attorneys general because of its broad attack on the law; and this time, conventional wisdom was right.

Before becoming Florida’s top legal officer, Bill McCollum served in the U.S. House of Representatives for twenty years. He held a number of Republican leadership positions while representing much of Orlando, and he was one of the House managers of President Bill Clinton’s impeachment trial in the Senate. In 2006, he was elected Florida’s attorney general. Slight in stature and with a calm, soft-spoken manner, McCollum jumped into the health care fight while the legislation was working its way through Congress. He was part of a working group of about twelve state attorneys general, led by South Carolina Republican attorney general Henry McMaster, who were outraged by the so-called Cornhusker kickback amendment, a proposal to give Nebraska $100
million to help pay for the bill’s Medicaid expansion.
²
The amendment never made it into the final health care bill.

In September 2009, six months before health care reform became law, McCollum spotted an op-ed column in the
Wall Street Journal
by his former law firm partner, David Rivkin, and another lawyer, Lee Casey, both of whom were partners in a Washington, D.C., law firm. Rivkin and Casey had served in the administrations of Ronald Reagan and George H. W. Bush. Rivkin already was advising the Cornhusker group of state attorneys general when he and Casey wrote the
Wall Street Journal
article.

The op-ed piece targeted the proposed requirement that eligible Americans purchase health insurance—the so-called individual mandate.
³
Although the mandate was a “hardy perennial” in health care reform proposals dating back to Hillary Clinton’s reform effort in the 1990s, it was unconstitutional back then and “profoundly unconstitutional” now, they argued. The two men had published an article in 1993 raising similar questions about the Clinton proposal. Setting up what would be key arguments in the coming attacks on the Obama administration’s health care law, they said the mandate could not be justified as an exercise of Congress’s power to regulate economic activity because there was no activity here to regulate.

“Simply being an American would trigger [the mandate],” they contended. And even though the Senate version of health care labeled the mandate a “tax,” it could not be based on Congress’s taxing power, they added, because the mandate was really a penalty beyond Congress’s taxing authority.

McCollum took the article and gave it to his legal staff with instructions to research the constitutional issues to see if there was a legitimate argument that the health care proposal was unconstitutional. “These are career people whose judgment I respect,” recalled McCollum. “I don’t know whether they’re Democrats or Republicans. And they said, ‘Yeah, we think he’s got a really good point about this, and here’s why, and secondly, we think there are other problems, like the Medicaid issue.’
Medicaid was a huge issue for us.” McCollum and other Republican attorneys general and governors believed the expansion of Medicaid coverage to low-income parents and other adults would impose a heavy financial burden on state budgets even though the Congressional Budget Office estimated that the federal government would cover nearly 93 percent of the cost during the first nine years and never less than 90 percent permanently.