From LeverNews.com — Lever Time is the flagship podcast from the investigative news outlet The Lever. Hosted by award-winning journalist, Oscar-nominated writer, and Bernie Sanders' 2020 speechwriter David Sirota, Lever Time features exclusive reporting from The Lever’s newsroom, high-profile guest interviews, and expert analysis from the sharpest minds in media and politics.
JAMES BOPP JR.: This is one of my favorites. You know, to be on the front cover the ABA journal. You know, it was like being a rock star, being on the front
DAVID: Yeah, it's like being an athlete on the cover of Sports Illustrated Exactly.
JAMES BOPP JR.: Yeah, exactly.
DAVID: This is attorney James Bopp. He's showing me all the memorabilia of his career scattered around his wood paneled office. There's a framed letter from Ronald Reagan. There's a photo of him with Dick Cheney, and yes, there's him on the cover of the American Bar Association's magazine, the ABA journal, with the headline the Big Bopper.
DAVID: I've seen it written that you filed more campaign finance cases than anyone else.
JAMES BOPP JR.: Definitely more campaign finance cases than anyone else in the country. My first big win in the Supreme Court was in the Minnesota case. Yeah, right, the Minnesota case.
DAVID: When we first reached out to Bopp for an interview, we figured we'd be heading to meet him at some big, fancy law office in Washington, DC or New York. Instead, he told us to meet him at his storefront law office in Terre Haute, Indiana. Terre Haute doesn't seem like a bustling hive of political intrigue and master planning here on this sunny day in late winter, it had the look of lots of Midwest towns whose boom days are long gone. There's an ornate courthouse and some big buildings in a sparsely populated downtown. It's basically the town from Parks and Rec in a red state dominated by Ron Swanson politics.
RON SWANSON (Parks and Recreation): It's never too early to learn that the government is a greedy piglet that suckles on a taxpayer's teat until they have sore, chapped nipples.
DAVID: Terre Haute is where Larry Bird played college basketball, where socialist presidential candidate Eugene Debs was born and where Timothy McVeigh was executed. But there's a good argument to be made that the Terra Hoder, who's had the most significant long term impact on America is this affable, 76 year old grandfather in a blue sweater and khakis. So the first obvious question I had for James Bopp was this? Why does he live here so far away from the political power brokers that he's trying to influence?
JAMES BOPP JR.: Well, I’m a third-generation Bopp in Terre Haute. I've stayed here because of the culture. Married, had three daughters. We wanted a relatively conservative cultural environment, and even though Terre Haute at the time was two to one Democrat, culturally, it was conservative.
DAVID: Growing up, Bopp's Family wasn't especially political, but his dad did have some clearly defined views.
JAMES BOPP JR.: He was a doctor, and he really did believe in the Hippocratic Oath, physicians shall do no harm. And so he always thought, you know, abortion was unethical. So I developed a lot of my conservative philosophy before I even got to high school.
DAVID: Bopp was really clear with us about this point. He's been an unabashed conservative for most of his life, and way before he ever cared about campaign finance, he was conservative about abortion. Just keep that in mind. After college at Indiana University and law school in Florida, Bopp returned to Terre Haute and worked a stint at the state attorney general's office before becoming the general counsel for the national right to life committee
Archival excerpt: The mood is pride and achievement at this year's convention of the national right to life committee, these anti Abortionists have successfully used sophisticated lobbying and public pressure to chip away at the 1973 Supreme Court decision that made abortion legal, and they intend to Stay on the attack, the number of legal abortions continues to rise, but pro abortion leaders are worried nonetheless.
I think my greatest concern is that they will affect power at the congressional level. That is not, in fact, representative of the will of the people that
DAVID: Pro-choice activists’ fears were well founded. Changing the political power equation was exactly what young James Bopp planned to do at the national right to life committee.
JAMES BOPP JR.: They did not have a PAC, and one of my first things I was interested in doing was getting national right to life to create a PAC, because they needed to become more aggressively involved in political activity. And one way to do that is to contribute to candidates.
DAVID: But in 1980 when the National Right To Life committee published voter guides encouraging support for anti choice candidates, the organization got in trouble for violating the old Federal Election Campaign Act, that's when Bopp realized that campaign finance restrictions were limiting his organization's ability to achieve its one big goal.
JAMES BOPP JR.: — to design and implement a strategy to overturn Roe v Wade.
DAVID: Increasingly, it seemed like the way to do that was to deregulate the campaign finance system so that the anti choice movement could get anti choice politicians elected, who would then get anti choice. Judges appointed to the bench. So Bopp began knitting the two seemingly separate causes together: the fight against abortion and the fight against campaign finance regulations, and he appropriated his strategy from probably the last person I would have ever guessed.
JAMES BOPP JR.: — the NAACP strategy implemented by Thurgood Marshall and Brown v Board of Education.
DAVID: I mean, what this hyper conservative, anti choice activist lawyer was inspired by civil rights legend Thurgood Marshall. But it's true, he was. Bopp tore a page out of the NAACP’s playbook. He started filing campaign finance suits, a lot of them over and over and seeing what took, what got accepted to higher courts and which arguments worked to chip away at campaign finance regulations, and he kept his eye on the prize, the Supreme Court. He familiarized himself with the justices, their ideologies and their temperaments.
JAMES BOPP JR.: See, I can't make the Supreme Court do anything, anything. They are in total control of the cases they accept, the issues they agree to decide, and how they decide those issues. But in order to get, get them or persuade them to do something, they've got to take my case and the best case for them to agree to decide is one that gives them options, and if they're willing, they can go big.
DAVID: In this episode, the master planners go big, really big. When we last left off, Justices John Roberts and Sam Alito had just replaced Sandra Day O'Connor and William Rehnquist on the Supreme Court. Now, with that new court in the late 2000s, James Bopp saw an opportunity to destroy decades of campaign finance laws in a single blow using an obscure film about Hillary Clinton.
ARCHIVAL NEWS FOOTAGE: If you thought you knew everything about Hillary Clinton, wait till you see the movie.
DAVID: But to win his case, Bopp needed to secure a vote from one of the most inscrutable and powerful men in America, justice, Anthony Kennedy.
ARCHIVAL NEWS FOOTAGE: Justice Kennedy has really kind of held the keys to all of these major decisions, and so there hasn't really been another swing vote like him.
DAVID: I'm David Sirota, and this is Master Plan.
Young Anthony Kennedy's life started in the non-glitzy, non-LA part of California.
ARCHIVAL NEWS FOOTAGE: Hello, won't you join us for a trip, a trip depicting life in Sacramento, 1950
DAVID: Like the fictional Hill Valley from Back to the Future, Sacramento in the mid 20th century was bustling, an all white picket fencey.
ARCHIVAL NEWS FOOTAGE: Many words have been written about three line streets, beautiful architecture, majestic buildings, but nowhere in the world do they fit any better than they do in Sacramento.
DAVID: But underneath the idyllic charm, Sacramento was also California's version of the swamp as the state capital. It was teeming with lobbyists and politicians and their dirty money greasing deals over everything from oil and water to redevelopment and liquor. I imagine the city's ethos was like that line in Chinatown: “politicians' ugly buildings and whores all get respectable if they last long enough.”
Anthony Kennedy was born into this swampy culture. His dad was a powerful lawyer and lobbyist who focused on the state legislature, running a reliable business of influence peddling and soft corruption. In 1963 his father died of a heart attack, and young Anthony took over the firm. He was only 27 years old. As a lobbyist, Kennedy soon became known for handing out campaign money to legislators on behalf of his clients. He worked alongside Ed Meese, a master planner we've mentioned a few times before, who had a close relationship with that B movie actor from the man meets monkey film, Bedtime for Bonzo, “even a monkey brought up in the right surroundings could learn the meaning of decency and honesty.”
Of course, by the early 1970s that same actor was the arch conservative governor of California, Ronald Reagan. And so while the U.S. Chamber of Commerce was holding its secret meetings about implementing the Powell memo in 1973 the Chamber's California State branch, was doing its part to put the memos’ ideology into action, backing Governor Reagan's major anti tax ballot measure, which it billed in Powell memo-esque terms as an economic Bill of Rights. Who helped Reagan draft that ballot measure? Anthony Kennedy.
ARCHIVAL NEWS FOOTAGE: It is the most. Revolutionary and complicated tax reform ever to be submitted to a vote of the people. Proposition one would cut state income taxes, making them a little smaller each year. It would put a constitutional limit on state spending, allowing increases only as the total personal taxable income in California rises.
DAVID: The tax proposition ultimately failed by hundreds of 1000s of votes, but Reagan soon helped his pal Kennedy by getting President Gerald Ford to appoint him to a federal judgeship. Kennedy was just 38 years old when he was appointed to the bench, making him the youngest federal appellate judge in the country. Right away, Kennedy forged a reputation as mild-mannered and polite, some might even say Genteel. He was a conservative, yes, but not necessarily a predictable or totally ideological one. He had a reputation for supporting individual freedoms, read: like a libertarian, and making narrow decisions on a case-by-case basis, rather than issuing sweeping ideological rulings. And he kept that up into the late 1980s coming to be known as the leader of a conservative minority on California's more liberal Ninth Circuit. And then in June 1987, journalist Bill Moyers asked the OG master planner US Supreme Court Justice Lewis Powell, how much longer he would remain on the court
ARCHIVAL NEWS FOOTAGE, Reporter: JAMES BOPP JR.: This is one of my favorites. You know, to be on the front cover the ABA journal. You know, it was like being a rock star, being on the front
DAVID: Yeah, it's like being an athlete on the cover of Sports Illustrated Exactly.
JAMES BOPP JR.: Yeah, exactly.
DAVID: This is attorney James Bopp. He's showing me all the memorabilia of his career scattered around his wood paneled office. There's a framed letter from Ronald Reagan. There's a photo of him with Dick Cheney, and yes, there's him on the cover of the American Bar Association's magazine, the ABA journal, with the headline the Big Bopper.
DAVID: I've seen it written that you filed more campaign finance cases than anyone else.
JAMES BOPP JR.: Definitely more campaign finance cases than anyone else in the country. My first big win in the Supreme Court was in the Minnesota case. Yeah, right, the Minnesota case.
DAVID: When we first reached out to Bopp for an interview, we figured we'd be heading to meet him at some big, fancy law office in Washington, DC or New York. Instead, he told us to meet him at his storefront law office in Terre Haute, Indiana. Terre Haute doesn't seem like a bustling hive of political intrigue and master planning here on this sunny day in late winter, it had the look of lots of Midwest towns whose boom days are long gone. There's an ornate courthouse and some big buildings in a sparsely populated downtown. It's basically the town from Parks and Rec in a red state dominated by Ron Swanson politics.
RON SWANSON (Parks and Recreation): It's never too early to learn that the government is a greedy piglet that suckles on a taxpayer's teat until they have sore, chapped nipples.
DAVID: Terre Haute is where Larry Bird played college basketball, where socialist presidential candidate Eugene Debs was born and where Timothy McVeigh was executed. But there's a good argument to be made that the Terra Hoder, who's had the most significant long term impact on America is this affable, 76 year old grandfather in a blue sweater and khakis. So the first obvious question I had for James Bopp was this? Why does he live here so far away from the political power brokers that he's trying to influence?
JAMES BOPP JR.: Well, I’m a third-generation Bopp in Terre Haute. I've stayed here because of the culture. Married, had three daughters. We wanted a relatively conservative cultural environment, and even though Terre Haute at the time was two to one Democrat, culturally, it was conservative.
DAVID: Growing up, Bopp's Family wasn't especially political, but his dad did have some clearly defined views.
JAMES BOPP JR.: He was a doctor, and he really did believe in the Hippocratic Oath, physicians shall do no harm. And so he always thought, you know, abortion was unethical. So I developed a lot of my conservative philosophy before I even got to high school.
DAVID: Bopp was really clear with us about this point. He's been an unabashed conservative for most of his life, and way before he ever cared about campaign finance, he was conservative about abortion. Just keep that in mind. After college at Indiana University and law school in Florida, Bopp returned to Terre Haute and worked a stint at the state attorney general's office before becoming the general counsel for the national right to life committee
Archival excerpt: The mood is pride and achievement at this year's convention of the national right to life committee, these anti Abortionists have successfully used sophisticated lobbying and public pressure to chip away at the 1973 Supreme Court decision that made abortion legal, and they intend to Stay on the attack, the number of legal abortions continues to rise, but pro abortion leaders are worried nonetheless.
I think my greatest concern is that they will affect power at the congressional level. That is not, in fact, representative of the will of the people that
DAVID: Pro-choice activists’ fears were well founded. Changing the political power equation was exactly what young James Bopp planned to do at the national right to life committee.
JAMES BOPP JR.: They did not have a PAC, and one of my first things I was interested in doing was getting national right to life to create a PAC, because they needed to become more aggressively involved in political activity. And one way to do that is to contribute to candidates.
DAVID: But in 1980 when the National Right To Life committee published voter guides encouraging support for anti choice candidates, the organization got in trouble for violating the old Federal Election Campaign Act, that's when Bopp realized that campaign finance restrictions were limiting his organization's ability to achieve its one big goal.
JAMES BOPP JR.: — to design and implement a strategy to overturn Roe v Wade.
DAVID: Increasingly, it seemed like the way to do that was to deregulate the campaign finance system so that the anti choice movement could get anti choice politicians elected, who would then get anti choice. Judges appointed to the bench. So Bopp began knitting the two seemingly separate causes together: the fight against abortion and the fight against campaign finance regulations, and he appropriated his strategy from probably the last person I would have ever guessed.
JAMES BOPP JR.: — the NAACP strategy implemented by Thurgood Marshall and Brown v Board of Education.
DAVID: I mean, what this hyper conservative, anti choice activist lawyer was inspired by civil rights legend Thurgood Marshall. But it's true, he was. Bopp tore a page out of the NAACP’s playbook. He started filing campaign finance suits, a lot of them over and over and seeing what took, what got accepted to higher courts and which arguments worked to chip away at campaign finance regulations, and he kept his eye on the prize, the Supreme Court. He familiarized himself with the justices, their ideologies and their temperaments.
JAMES BOPP JR.: See, I can't make the Supreme Court do anything, anything. They are in total control of the cases they accept, the issues they agree to decide, and how they decide those issues. But in order to get, get them or persuade them to do something, they've got to take my case and the best case for them to agree to decide is one that gives them options, and if they're willing, they can go big.
DAVID: In this episode, the master planners go big, really big. When we last left off, Justices John Roberts and Sam Alito had just replaced Sandra Day O'Connor and William Rehnquist on the Supreme Court. Now, with that new court in the late 2000s, James Bopp saw an opportunity to destroy decades of campaign finance laws in a single blow using an obscure film about Hillary Clinton.
ARCHIVAL NEWS FOOTAGE: If you thought you knew everything about Hillary Clinton, wait till you see the movie.
DAVID: But to win his case, Bopp needed to secure a vote from one of the most inscrutable and powerful men in America, justice, Anthony Kennedy.
ARCHIVAL NEWS FOOTAGE: Justice Kennedy has really kind of held the keys to all of these major decisions, and so there hasn't really been another swing vote like him.
DAVID: I'm David Sirota, and this is Master Plan.
Young Anthony Kennedy's life started in the non-glitzy, non-LA part of California.
ARCHIVAL NEWS FOOTAGE: Hello, won't you join us for a trip, a trip depicting life in Sacramento, 1950
DAVID: Like the fictional Hill Valley from Back to the Future, Sacramento in the mid 20th century was bustling, an all white picket fencey.
ARCHIVAL NEWS FOOTAGE: Many words have been written about three line streets, beautiful architecture, majestic buildings, but nowhere in the world do they fit any better than they do in Sacramento.
DAVID: But underneath the idyllic charm, Sacramento was also California's version of the swamp as the state capital. It was teeming with lobbyists and politicians and their dirty money greasing deals over everything from oil and water to redevelopment and liquor. I imagine the city's ethos was like that line in Chinatown: “politicians' ugly buildings and whores all get respectable if they last long enough.”
Anthony Kennedy was born into this swampy culture. His dad was a powerful lawyer and lobbyist who focused on the state legislature, running a reliable business of influence peddling and soft corruption. In 1963 his father died of a heart attack, and young Anthony took over the firm. He was only 27 years old. As a lobbyist, Kennedy soon became known for handing out campaign money to legislators on behalf of his clients. He worked alongside Ed Meese, a master planner we've mentioned a few times before, who had a close relationship with that B movie actor from the man meets monkey film, Bedtime for Bonzo, “even a monkey brought up in the right surroundings could learn the meaning of decency and honesty.”
Of course, by the early 1970s that same actor was the arch conservative governor of California, Ronald Reagan. And so while the U.S. Chamber of Commerce was holding its secret meetings about implementing the Powell memo in 1973 the Chamber's California State branch, was doing its part to put the memos’ ideology into action, backing Governor Reagan's major anti tax ballot measure, which it billed in Powell memo-esque terms as an economic Bill of Rights. Who helped Reagan draft that ballot measure? Anthony Kennedy.
ARCHIVAL NEWS FOOTAGE: It is the most. Revolutionary and complicated tax reform ever to be submitted to a vote of the people. Proposition one would cut state income taxes, making them a little smaller each year. It would put a constitutional limit on state spending, allowing increases only as the total personal taxable income in California rises.
DAVID: The tax proposition ultimately failed by hundreds of 1000s of votes, but Reagan soon helped his pal Kennedy by getting President Gerald Ford to appoint him to a federal judgeship. Kennedy was just 38 years old when he was appointed to the bench, making him the youngest federal appellate judge in the country. Right away, Kennedy forged a reputation as mild-mannered and polite, some might even say Genteel. He was a conservative, yes, but not necessarily a predictable or totally ideological one. He had a reputation for supporting individual freedoms, read: like a libertarian, and making narrow decisions on a case by case basis, rather than issuing sweeping ideological rulings. And he kept that up into the late 1980s coming to be known as the leader of a conservative minority on California's more liberal Ninth Circuit. And then in June 1987, journalist Bill Moyers asked the OG master planner US Supreme Court Justice Lewis Powell, how much longer he would remain on the court
ARCHIVAL NEWS FOOTAGE, Reporter: You've been here now 15 years. You're 80 years old. Any thought about retiring?
ARCHIVAL NEWS FOOTAGE, Lewis Powell: My health has not been good. I go to the Mayo Clinic with some frequency, but at the moment I have no present plans.
DAVID: But then, literally, the next day —
ARCHIVAL NEWS FOOTAGE, Newscaster: Good evening. Justice Lewis Powell, a courtly Southerner surprised almost everyone today by announcing his retirement from the US Supreme Court. His decision touched off a flurry of speculation on who the President will appoint as a replacement and how that will affect the direction of the court, and of course, the country.
DAVID: That meant Anthony Kennedy's old pal from Sacramento, now-President Ronald Reagan, suddenly had a chance to nominate a new Supreme Court justice. Want to guess who Reagan first picked to fill Lewis Powell's seat? Nope, not Anthony Kennedy. Reagan first went for the A-Lister of the master plan cinematic universe, the one, the only Robert Bork. Yep, that's the same Robert Bork who did Nixon's dirty work and who helped Gerald Ford get the Buckley v Valeo ruling, as you also heard a few episodes ago, when Reagan nominated the Rasputin-like Bork to the Supreme Court, Senate Democrats fought back. We told you that Bork got borked, but we didn't tell you what happened next when Bork was voted down, Reagan's second choice was Douglas Ginsburg. Ginsburg had led the Reagan White House's deregulation agenda. He'd hobbled antitrust enforcement at the Justice Department, and he had just made an appearance at a Federalist Society event. I mean, he was no Robert Bork, but he was a pretty perfect Master Plan pick, right? Well, almost —
ARCHIVAL NEWS FOOTAGE: Ginsburg was forced to withdraw from consideration in a very 1980s scandal, several conservative Republicans had urged President Reagan to withdraw Ginsburg nomination after he disclosed he smoked marijuana in the ‘60s and ‘70s.
DAVID: Listen, I remember this happening when I was a kid who smoked weed, and when was a huge deal back then. So Ginsburg got Borked too. Months after Powell's retirement, Reagan, just like Nixon in the early 1970s was zero for two in Supreme Court nominees. And just like Nixon with Powell back then, Reagan now needed to find a jurist who was conservative enough to get nominated, but who presented as liberal and reasonable enough to get confirmed. And so Reagan turned to his old Sacramento buddy,
Archival Clip, Reporter: Anthony Kennedy, you’re the third choice for this seat.
Archival Clip, Anthony Kennedy: I'm delighted with this nomination.
Archival Clip, Reporter: Mr. President, why didn't you nominate Judge Kennedy?
Archival Clip, Ronald Reagan: I have told you that all three, we came down to a final three, and that all three were so close and so well qualified, you could have almost thrown the Dart. Thank you for coming by that decision right away.
DAVID: Kennedy was seen as the nice guy alternative to the hard-edged Bork and the pothead Ginsburg during his confirmation hearing, Kennedy's past career in Sacramento's influence-peddling industry wasn't seen as a liability at all. In fact, Republican senators like Orrin Hatch seemed thrilled that Kennedy had experience as both an attorney and a corporate lobbyist. Here's Hatch at Kennedy's confirmation hearing.
Archival Congressional Clip, Orrin Hatch: Well, I see you as a person with your experience, both as an eminent lawyer as a person who has worked as a lobbyist as. Person who might have a great deal of ability on that court to bring consensus about Democrats.
DAVID: This time, offered literally zero opposition to Reagan's Supreme Court nominee, Kennedy, was unanimously confirmed on February 3, 1988
Archival Clip, Ronald Reagan: Judge, and now justice, Kennedy — sounds good, doesn't it? — takes a distinguished seat on the high bench.
DAVID:At Kennedy's swearing in ceremony, Reagan made sure to draw parallels between Kennedy and the man he was replacing on the bench,
Archival Clip, Ronald Reagan: One of the great gentlemen of the American judiciary, a justice widely acclaimed for his decency and fairness. Justice Lewis Powell, like his distinguished predecessor…
DAVID: That may have sounded placating to liberals, but in retrospect, it must have been reassuring to the master planners. Upon joining the court, Kennedy started to build a moderate profile on social issues, notably in 1992 he co-authored an opinion that reaffirmed Roe v Wade, but he also opted to uphold some abortion restrictions. Meanwhile, for those paying close attention, Anthony Kennedy, the former corporate lobbyist, also started dog whistling to the master planners about corruption and campaign finance. He voted against and wrote the dissent in a 1990 case that upheld the state law preventing corporations from using their funds to support political campaigns. He voted to let political parties make unlimited expenditures to buy elections for their congressional candidates, as long as they didn't directly coordinate with those candidates. And Kennedy voted against upholding certain provisions of the McCain Feingold campaign finance law in that case you heard about in episode six, but mostly for his first 17 years on the court, Kennedy was kind of a backbencher. You just didn't hear a ton about him. That all changed, though, when Sandra Day O'Connor and William Rehnquist were replaced by John Roberts and Sam Alito. All of a sudden, Anthony Kennedy became one of the most powerful men in America, able to instantly shift national policy on any issue that came before the High Court,
ARCHIVAL NEWS FOOTAGE: With four liberal justices and four conservatives on the Supreme Court, Justice, Anthony Kennedy's swing vote will be key.
ARCHIVAL NEWS FOOTAGE: A moderate conservative whose votes on high-stakes cases are close to impossible to predict.
ARCHIVAL NEWS FOOTAGE: He's the man in the middle, the right-leaning justice who often swings left on some of the most hot button cases
DAVID: After the Roberts-Alito Supreme Court takeover, Kennedy's rulings with liberal justices on LGBTQ issues, habeas corpus, abortion rights, they probably made it seem like he'd keep the court from going too far to the right, but conservatives knew that Kennedy's vote could be swung, so they began lining up to throw all kinds of cases at him and the new conservative majority on the court, like kids lining up to see Santa Claus, but as they say in Christmas Story,
Archival Clip, Film: the line waiting to see Santa Claus stretched all the way back to Terre Haute,
DAVID: Back at his storefront office in Terre Haute, Indiana, James Bopp had his eye on deregulating the campaign finance system, a cause that Kennedy seemed especially amenable to. So Bopp elbowed his way to the front of the queue with a case that brought his two pet causes together, the crusade against abortion and the crusade to deregulate campaign finance laws.
JAMES BOPP JR.: I can't tell the story without talking about Wisconsin right to life.
DAVID: James Bopp saw a new chance to try to go big. It was absolutely critical. Bopp is talking about FEC v Wisconsin right to life, a Supreme Court case that was heard right after John Roberts and Sam Alito were installed, right when Anthony Kennedy was the new swing vote
JAMES BOPP JR.: Wisconsin Right to Life contacts me and says that there's an upcoming vote on Bush's judicial nominees, Feingold of McCain, Feingold fame is up for election, and we want to lobby him, and the vote is going to be in September.
ARCHIVAL NEWS FOOTAGE: The special interest anti-abortion group Wisconsin Right to Life is now airing this TV spot. There are a lot of judicial nominees out there who can't go to work, but come this weekend, this ad and corresponding radio hits will be illegal. Why nominees because Wisconsin Right to Life or WRTL talks about in its ad, contact Senators Feingold and Cole and tell them to oppose the filibuster.
DAVID: Wisconsin Right To Life ads fell within the 60-day window or blackout period before that year's general election, which made it subject to the restrictions of the McCain-Feingold campaign finance law, which, as you heard before, had been upheld by the pre-Roberts, pre-Alito Supreme Court. Under that law, the group couldn't mention Senator Feingold by name, because that would be considered electioneering. So Bopp sued on the grounds that those restrictions were a violation of free speech. On April 25, 2007, James Bopp argued that case in front of the Roberts and Alito Supreme Court. The questioning focused on whether the Wisconsin right-to-life ads were just issue ads designed to lobby, or whether they were a stealthy form of electioneering against the candidate in the election. Here's Justice Stevens questioning Bopp about the distinction.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): Are you trying to convince us? The purpose of these ads was to convince Senator Feingold to change his position on filibuster.
JAMES BOPP JR.: It was, indeed it was to lobby him.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): Did you think that was a realistic goal?
JAMES BOPP JR.: Yes, as it turns out, because in 2006 we ran the same sort of anti-filibuster as and Senator Cole, now up for reelection, changed his position on the filibuster. So these things happen. In other words, people, people's positions are affected by grassroots lobbying, and at least people should have the opportunity.
DAVID: Then, Anthony Kennedy chimed in.
Archival Clip, Justice Anthony Kennedy: Is that called democracy?
DAVID: Senators Feingold and Cole and tell them to oppose the filibuster those
Archival Clip, JAMES BOPP JR.: We are hopeful. Your Honor.
DAVID: Ultimately, the conservative majority on the court, including the key swing vote, Anthony Kennedy narrowly agreed with Bop, saying that Wisconsin right to life's ads were not express political advocacy, since they didn't literally tell people whether or not to vote for specific candidates. The Court declared that Wisconsin right to life's ads could not be regulated by the McCain-Feingold campaign finance law. Here's Chief Justice John Roberts once again, play acting as a baseball umpire.
Archival Clip, John Roberts: 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.
DAVID: Put another way, a mere four years after the old Rehnquist Court dunked on the master planners and upheld McCain's campaign finance law, the new Roberts Court had just sided with those same master planners and overturned a major part of that law. This was an Empire Strikes Back moment for the ages.
SEN. SHELDON WHITEHOUSE (D-R.I.): I call that the ‘Magic words’ case.
DAVID: This is Senator Sheldon Whitehouse. White House first took his seat as the junior senator from Rhode Island just six months before the decision in FEC versus Wisconsin right to life came down. He told us just how significant this little noticed case really was. That was the case in which Supreme Court decided what the magic words were, that if you used them in an ad, it became a political ad and was subject to a variety of regulations and limitations. But if you didn't use those magic words, then you could say that your ad was not a political ad, but it was issue advocacy. You weren't recommending a vote against Senator Whitehouse. You were just recommending that voters call up Senator Whitehouse and ask why he was a thieving, dirty, puppy-hating, anti-American scoundrel, right? The effect on the airwaves is the same, but if you didn't use the magic words about vote or elect then this whole new avenue opened up for dirty political TV advertising.
DAVID: Whitehouse said that the little magic words loophole started opening up the floodgates for unregulated, anonymous, dark money ads that buy elections, all under the guise of educating the public with so-called ‘issue ads’ rather than electioneering. I think that was the purpose of the exercise. Here are the words that if you don't use them, you're good to go on election spending.
DAVID: So you can see why. James Bopp told us that the decision in FEC v Wisconsin Right To Life was absolutely critical. It was a huge blow to the McCain-Feingold campaign finance law, but perhaps more importantly, it showed Bopp how this new Roberts Alito court was inclined to rule on all of these campaign finance issues. Bopp also noticed something else. Arch conservative justice Antonin Scalia wrote a concurrence, agreeing with the court's decision, but saying it should have gone a step further and completely eliminated McCain-Feingold's prohibitions against unlimited corporate spending to sway elections. The concurrence was backed by Clarence Thomas, hardly a surprise, but there was a third signature on the document, you guessed it, Anthony Kennedy. That was a signal to James Bopp that perhaps he could get Kennedy, the old Sacramento Swamp Thing, to channel his predecessor, Lewis Powell, and go huge.
ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON): I announced today that I'm forming a presidential exploratory committee. I'm not just starting a campaign, though. I'm beginning a conversation with you, with America.
DAVID: It's early 2007. Hillary Clinton has announced her campaign for president. James Bopp is in Terre Haute, working on arguments that might get justices to go big in that Wisconsin right to life case.
ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON): So let the conversation begin, I have a feeling it's going to be very interesting.
DAVID: And then one day, James Bopp’s phone rings,
JAMES BOPP JR.: So I'm sitting in my office, and I get a phone call from David Bossie.
DAVID: David Bossie is a conservative activist. In 1992 he was working for a non-profit that was first founded by the same people who made one of the sleaziest dark money ads in American history, the Willie Horton ad that shifted the 1988 presidential election that you heard about in episode six. By 2000, Bossie was the organization's president, so James Bopp picks up the phone to talk to David Bossie and Bossie asks Bopp if he'd represent his organization in a juicy lawsuit about Hillary Clinton that could end up letting corporations spend unlimited amounts of money in politics.
ARCHIVAL AD: Oh, baby. You know what I like.
DAVID: James Bopp likes big campaign finance cases, and this one might be the biggest of them all.
JAMES BOPP JR.: And he said, ‘I'm working on a movie called Hillary: The Movie, alright?’ And this is now in early 2007, I'm working on a movie, and she's running for president.
DAVID: Hillary: The Movie was promoted by Bossie as a documentary, but it was functionally just a hyper conservative 90-minute anti-Clinton campaign ad with Sad, Scary Music, all funded by a boatload of anonymous money.
“HILLARY: THE MOVIE”: She's deceitful. She'll make up any story, lie about anything, as long as it serves her purpose of the moment, and the American people are going to catch on to it. I can't think of any other politician in history who has shown such a disrespect and a contempt for the Constitution and the rule of law as Hillary.
DAVID: Bossie was calling bop to figure out how to drop this thing into the 2008 election cycle while skirting campaign finance laws that apply to political ads during elections.
JAMES BOPP JR.: I want to broadcast this movie, and I need your help two ways. Okay, first way is to make sure that our movie script does not have an appeal to vote for or against a candidate, because I want to be able to do this, and if it has an appeal to vote, I'm prohibited, so I want you to give me the advice to make sure that they could still do this movie.
DAVID: The second thing Bossie wanted Bopp's help on was finding a legal way to get around the requirement to file a disclosure report about who exactly was funding the project.
JAMES BOPP JR.: The report would have required him to reveal his donors, and people would not want to contribute if they are going to be outed as funding an anti-Hillary certainly critical Hillary movie, right? So he doesn't want to have to do this report of their donors.
DAVID: This is something we've seen over and over again in our reporting, conservatives want to be able to broadcast whatever messages they want, but they don't want to have to admit who is actually funding the message. And this quote, unquote movie was pretty nasty.
“HILLARY: THE MOVIE”: I knew Richard Nixon, and I'll tell you something, she's no Richard Nixon. She's worse, ruthless, vindictive, venal, sneaky, ideological, intolerant, liar is a good one…scares the hell out of me.
DAVID: So Bopp took the lessons he learned in the Wisconsin case, and he set about strategically assembling this new case using arguments that Roberts and Scalia and Kennedy had signaled they were sympathetic to, and just like his inspiration, Thurgood Marshall in Brown v Board of Education, James Bopp hoped this case would be the big one. Bossie's organization had run into issues with federal election regulators in the past. They tried to make some so-called documentaries before, but the dark money group was clearly a political organization and not a movie studio. So more than once, the Federal Election Commission insisted that they were subject to McCain-Feingold's restrictions. Bopp anticipated a similar pushback on Hillary: The Movie, but rather than waiting for federal election regulators to send a cease-and-desist letter to Bossie, Bopp had a genius idea. He went to a lower court demanding a declaratory judgment up front one that would officially allow Bossie to air his documentary right up until the 2008 primaries. In other words. Courts. Bopp took a play out of the Powell memo and used this case as a preemptive attack.
LEWIS BLACK AS LEWIS POWELL: The greatest care should be exercised in selecting the cases in which to participate.
DAVID: He used this obscure movie to create a case out of thin air, the lower court said, essentially no campaign finance restrictions obviously apply to this, but that ruling gave Bopp what he really wanted, a way to appeal the case up to John Roberts, Sam Alito, and Anthony Kennedy on the Supreme Court. When Hillary: The Movie became a legal case, it ended up being named after Bossie’s non-Movie Studio, nonprofit, maybe you've heard of it:
ARCHIVAL NEWS FOOTAGE:
…The Citizens United case…
…Citizens United…
…Citizens United…
…Get rid of Citizens United and its pernicious effects on our electoral system…
DAVID: Citizens United was appealed up to the Supreme Court in August of 2008 Hillary Clinton was long gone from the presidential race, defeated by Barack Obama, but that didn't matter, the master planners were after something much bigger. The Court agreed to hear the case three months later, and then David Bossie replaced James Bopp. Bossie bumped bop for a new Hot Shot attorney named Ted Olson. By 2008 Olson was already famous in master plan circles. He'd been a founding member of the Federalist Society and the bush campaign's mouthpiece at the Supreme Court in Bush v Gore, which decided the 2000 election. Supposedly, David Bossie had seen Olson win a Republican lawyer of the Year Award at an event in Washington, DC in October 2008 where another attorney called Olson the quote, “winningest Supreme Court lawyer.” So when bosses challenge was accepted at the High Court The following month, he told his co-founder that they should ditch old James Bopp in Terre Haute and pick up Olson instead like leaving prom with the popular girls. When Olson took over the Citizens United case, he slightly reformulated Bopp's argument. He focused on the idea that Hillary: The Movie was not what the McCain Feingold campaign finance law was actually supposed to prohibit. It was a documentary movie that viewers had to seek out on video on demand, not a screeching election ad that couldn't be avoided on cable TV.
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Mr. Chief Justice, and may it please the Court, participation in the political process is the First Amendment's most fundamental guarantee yet, that freedom is being smothered by one of the most complicated, expensive and incomprehensible regulatory regimes ever invented by the administrative state.
DAVID: It was Olson who first brought up the word “corruption.”
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): The government cannot prove, and has not attempted to prove, that a 90-minute documentary poses any threat of quid pro quo, corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest, that the First Amendment is there to guarantee.
DAVID: Olson argued with a straight face that Hillary the movie wasn't an election focused ad governed by campaign finance laws, despite the fact that it was dropped in the middle of an election and spends 90 minutes insisting that Hillary Clinton was unqualified for the presidency and was, I'm paraphrasing here, basically the Antichrist. Justice Souter for one wasn't buying. It.
ARCHIVAL SUPREME COURT AUDIO (DAVID SOUTER): Doesn't this one fall into campaign, advocacy. I mean, I've got the government's brief open at pages 18 and 19, with the quotations. She'll lie about anything. She's deceitful. She's ruthless, cunning, dishonest. Do anything for power. We'll speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief. I mean, this sounds to me like campaign advocacy.
DAVID: Yeah, you think? In response, the master planners on the Supreme Court pretty much hijacked the oral arguments the same way your crotchety uncle pulls the ‘well actually’ move to steer the Thanksgiving dinner conversation towards his bizarre theories. For example, instead of a discussion about money, influence, election buying and corruption, what the case was actually about justice, Sam Alito forced the government's defense lawyer into an absurd debate about book banning. Here's Kennedy.
ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY): Suppose it were an advocacy organization that had a book, your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 or 30 day period
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Tf the book contained the functional equivalent of Express advocacy, that is, if it was subject to no reasonable interpretation
DAVID: They proceeded to get into an even more ludicrous debate about e-books that are accessed via satellite
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): within the 6030, day period. If it comes from a satellite, it can be prohibited under the Constitution and perhaps under the statute.
DAVID: I mean, this is a case about a movie. What are they even talking about? I feel like I'm Steve Martin in Planes, Trains and Automobiles.
“Planes, Trains and Automobiles”: When you're telling these little stories, here's a good idea: Have a point. It makes it so much more interesting for the listener.
DAVID: The FEC’s lawyer tried to steer the justices back on track.
ARCHIVAL SUPREME COURT AUDIO: It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book, and could be required to raise funds to publish the book using its PAC.
DAVID: That was the actual point. And unfortunately, the FEC’s lawyer didn't make it very well. It wasn't really about whether the government could or would prohibit the publication of a book that urged its readers to vote or not vote for a specific candidate. It was about a corporation being able to anonymously funnel money from its coffers into election communications with no restrictions, and the government was arguing that they'd have to use a regulated PAC or explicitly disclosed political money instead. It's worth reiterating that none of this is what the original case was asking about. But as the ever more twisted and deranged arguments went on, the conservative justices like Anthony Kennedy kept insisting that it was a free speech question, even though it really wasn't. Then an hour later, it was over.
ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): Thank you, Counsel. The case is submitted.
ULA: What happens behind the scenes when the justices vote on this case is kind of my favorite part of the story.
DAVID: This is producer Ula Culpa, to tell us about when things got really interesting.
ULA: So after oral argument, the justices meet in private and have a round of initial votes on the case. It falls basically along ideological lines, with the four liberals against Citizens United and the five conservatives, including Anthony Kennedy, in favor of saying that McCain-Feingold [Bipartisan Campaign Finance Reform Act] did not apply to Hillary: The Movie, Roberts gets to work on a narrow opinion saying that, but Kennedy writes a concurrence that argues that they should go way bigger and invalidate any campaign finance restrictions on allegedly independent political groups like Citizens United.
DAVID: So Roberts and the other conservatives then compare drafts, and they love Kennedy's idea so much that Roberts withdraws his more narrow opinion and lets Kennedy write the majority
ULA: Exactly. And this is where the drama hits after Justice Souter sees what Roberts and Kennedy are planning to do. He gets pissed and writes a dissent, and it has become infamous in legal circles because it was this Full Tilt bridge burning attack on the logic of his fellow justices, which is something that almost never happens, and definitely not like this. Reportedly, Souter berated not only the conclusions that Roberts and Kennedy had come to, but the like intellectual depravity to step outside of and way beyond what this case was asking in the first place.
DAVID: Finally, someone was calling bullshit. Okay, so read us some excerpts.
ULA: Well, I can't.
DAVID: Wait. Why?
ULA: Because very few people have actually ever seen Souter's dissent, and that's because not long after he drafted it, just as David Souter has informed the White House, he will retire at the end of a Supreme Court term in June. God, it's exactly like that scene from Half-Baked.
“HALF-BAKED”: Fuck you, Fuck you, fuck you… You're cool…Fuck you. I'm out
ULA: Totally and then John Roberts basically makes sure Souter’s dissent never gets published as part of the official record. Because instead of the ruling coming out at the end of the court's term, like you might expect, Citizens United is suddenly scheduled for re-argument in the fall.
DAVID: What the hell is reargument?
ULA: It's when the Court asks the lawyers to write all new briefs about all new questions. In this case, Roberts asked them to address big constitutional questions that signaled that the court wasn't going to issue a narrow ruling about one movie. It was going to follow Kennedy's lead and go really, really big.
DAVID: So here we are in the fall of 2009, things still seem all Hopey-and-Changey over in the White House, but only a few blocks away at the Supreme Court. Shit is about to go down. The Master planners had taken over the court with Roberts and Alito. James Bopp had given Anthony Kennedy the chance to go big, and Roberts figures out a way to make it all happen. This is like the master planners a team moment.
DAVID: So six months after the first argument in the Citizens United case, David Souter is retired. His barn burning warning about the end of democracy is nowhere to be found. The ideological Terminator John Roberts rewinds the clock and lets Federalist Society luminary Ted Olson make a whole new argument to the court,
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Mr. Chief Justice, and may it please the Court.
DAVID: This was no longer a little argument about a specific campaign finance law and a dumb documentary, but a robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech.
Olson and his client Citizens United were now resurrecting the old free speech arguments from Buckley v. Valeo and from Lewis Powell's Bellotti ruling that you heard about in episode five. Essentially, they argued that money is protected speech. They also argued that corporations, therefore have a constitutional right to spend unlimited money in elections, as long as it's not directly coordinated by candidates, and that such independent spending isn't a corrupting force. The justices seem supportive of that view. John McCain said they seemed totally out of touch with reality.
ARCHIVAL NEWS FOOTAGE (JOHN MCCAIN): I was rather disappointed in some of the justices apparent naivete as to how corporate and union and unlimited money affects the legislative process. Does anyone believe that the rights of average citizens to be heard in Washington would not be overridden by massive, unlimited campaign contributions from corporations and unions?
DAVID: McCain was correct. Nobody believed that, but that was a feature of the Citizens United case, not a bug. A ruling in favor of Citizens United would override average citizens' voices and create a society run by corporations and oligarchs, just as James Bopp's fellow Hoosier Ron Swanson had dreamed of back in fictional small town, Indiana.
“PARKS AND RECREATION”: I think that all government is a waste of taxpayer money. My dream is to have the park system privatized and run entirely for profit by corporations like Chuck E. Cheese. They have an impeccable business model. I would rather work for Chuck E. Cheese.
DAVID: McCain, Feingold and all the Reformers warned that ruling for Citizens United would deregulate the campaign finance system and basically make Ron Swanson's vision a reality. Politicians and public officials would work for Chuck E. Cheese and every other corporation, and those corporations would be allowed to buy elections. I mean, the Supreme Court was pretty radical, but would it really go that far? That's after the break.
ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): In case 08205, Citizens United v. the FEC, Justice Kennedy has the opinion of the court.
DAVID: On January 21, 2010, just over four months after the second round of arguments, the decision in Citizens United came down this time. It wasn't Chief Justice John Roberts writing the majority opinion. It was the old Sacramento Swamp Thing, former lobbyist and influence peddler Anthony Kennedy in announcing the decision to the public. Kennedy first laid out why the majority had decided to go big. He identified the precedents that were relevant to the case, like the court's ruling a few years prior, that had held up the McCain Feingold campaign finance law. And then, he said, we conclude that those precedents now must be reexamined. The Court has recognized that First Amendment protection extends to corporations. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.
DAVID: The precedents the court's majority was now dismantling, according to Kennedy, would
ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY): —allow the government to ban corporations from expressing political views through any media, including media beyond those presented here and in this case, such as by printing books, political speech is indispensable to decision making in a democracy. And this is no less true because the speech comes from a corporation rather than an individual.
DAVID: This is the radical corporations or people concept on steroids, and the opinion was directly built from that Belotti ruling, first authored by Kennedy's immediate predecessor, Lewis Powell, even more radical, Anthony Kennedy, who spent his early years as a lobbyist doling out campaign cash to sway legislators. That same Anthony Kennedy was now also insisting that money in politics was only corrupting when there was an explicit quid pro quo, but all the other things that Anthony Kennedy himself had helped his Sacramento lobbying clients use money to buy stuff like access and influence that stuff was apparently not corrupting. That sounds like an exaggeration, but in his written opinion, Kennedy asserted that campaign donors, quote, may have influence over or access to elected officials, but that did not quote mean that these officials are corrupt. And then Kennedy wrote something so crazy that — hold on, hold on. Can I get a special effect on my voice for this so that it sounds extra evil? Okay, there we go.
Kennedy said, quote, independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. I mean, think about how insane that is. Anthony Kennedy non ironically, wrote a ruling with the force of law that essentially declares that when a corporation spends $50 million blanketing your state to help one candidate win a US Senate election, there's no corruption or even appearance of corruption when that candidate then does legislative favors for that corporation. Justice Stevens wrote the dissent on behalf of the liberals. It may not have been Souter's barn burner, but it was pretty close. It was 90 pages long and probably bolstered by the fact that Stevens was 90 years old and also nearly ready to retire.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): As one of the joint authors of the opinion in McConnell, I must emphatically disagree with today's law changing decision…
DAVID: Stevens’ dissent made the point that up until O'Connor and Rehnquist were replaced by Roberts and Alito, the court had upheld at least some restrictions on corporate spending in elections.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): The Court has the point exactly backwards. At the founding Americans took it as a given that corporations could be comprehensively regulated in the service of the public welfare. It is doubtful that the framers believed the freedom of speech would extend to corporations who cannot themselves engage in speech. And is even more doubtful that when they ratified the First Amendment, they thought they were laying down a principle that could be used to insulate corporations from even modest restrictions on electioneering expenditures.
DAVID: After speaking for 20 minutes, twice as long as Kennedy had, Stevens had his mic drop moment.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): While American democracy is still imperfect, few outside the majority of this court would have thought its flaws included a shortage of corporate money in politics.
DAVID: Unsurprisingly, when the ruling came down, David Bossie of Citizens United was giddy.
ARCHIVAL NEWS FOOTAGE (DAVID BOSSIE): This is a monumental day for Citizens United, and more importantly, for the First Amendment and the fundamental rights of people to participate in the political process and the marketplace of ideas, whether you're an individual, whether you're a corporation or a union, it doesn't matter. You can now participate fully and freely in the election process.
DAVID: Here is Senator Sheldon Whitehouse again.
SEN. SHELDON WHITEHOUSE: My recollection, I was on the Senate floor and came back to read the decision.
DAVID: He said the decision was painful to read.
SEN. SHELDON WHITEHOUSE: I live in the immediate political world, and I was watching the Supreme Court buy into a notion about that political world that I knew to be false. They have applied a conceptual paradigm over politics that is complete and utter nonsense.
DAVID: While much of the country reacted to the decision with surprise and anger, White House says that conservative must have had an inkling that this was coming, because right after the decision came down, conservative and business interest groups immediately filed papers to create scores of unregulated dark money groups that could exploit the ruling.
SEN. SHELDON WHITEHOUSE: The fact that they had this whole 501(c)(4) apparatus ready to go sort of proved that this was an expected decision. In fact, you even have Virginia Thomas setting up her organization while the decision is being deliberated, so that on the day it's announced she's ready to go.
DAVID: Whitehouse is referring to Virginia Ginni Thomas, wife of justice, Clarence Thomas, just weeks before the ruling in Citizens United came down, she and Leonard Leo of the Federalist Society filed initial paperwork for a not for profit lobbying group called Liberty Central, a group designed to take advantage of the Citizens United ruling Liberty Central is America's public square. We inspire, we listen, we activate ordinary citizens to secure the blessings of liberty.
DAVID: Though it was hidden at the time, later, reporting revealed that Liberty Central's initial $500,000 of funding came from who else the Thomas's favorite billionaire, a guy named Harlan Crow, who'd been funding lavish trips for justice, Thomas on the other side of the aisle, Democrats openly criticized the Citizens United ruling. Here's President Obama in his State of the Union address less than a week after the decision
ARCHIVAL SPEECH AUDIO (BARACK OBAMA): Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including. Foreign corporations to spend without limit in our elections.
DAVID: In the video of the speech, you can see the justices stay seated and look stone-faced as much of the room stands to applaud Obama around them, and then there's Samuel Alito shaking his head and muttering, not true.
SEN. SHELDON WHITEHOUSE: It made me grieve for Sandra Day O'Connor, whose departure had opened the door for Alito particularly, and whose common sense and experience as somebody who had run for office, I think would have headed off Citizens United had she stayed on the court. So the whole thing was just sort of imbued with sorrow and missed chances, but the result at the end was a completely manufactured simulacrum of what the political world is like, created by the court and imposed on all of us.
DAVID: Whitehouse and John McCain tried to quickly limit the rulings effects. They asked the Supreme Court to at least prevent a lower court in Montana from now using Citizens United to gut that state's 100 year old anti corruption law the Supreme Court refused to even hear the case.
SEN. SHELDON WHITEHOUSE: So at that point, I realized, Oh, my God, this is not an innocent mistake. They are actually deliberately trying to open our political world to right wing political dark money.
DAVID: In my imagination, James Bopp was celebrating back home in Indiana when he read the Citizens United ruling.
“PARKS AND RECREATION”: Great job, everyone. The reception will be held in each of our individual houses alone.
DAVID: But alas, James Bopp wasn't there. He was actually on the beach.
JAMES BOPP JR.: I don't even remember why I was in Florida, but I was I remember very distinctly reading the opinion on the beach in Florida. Of course, I already knew the decision that they'd overturned, the two precedents that need to be overturned, and I do the vote.
DAVID: He was psyched. But if he doesn't sound 100% excited about the ruling, it's because he kind of wasn't sure he had gotten most of what he wanted. He had created a case that convinced the court to go huge and eviscerate campaign finance laws in a world changing ruling, four years before Citizens United, nonprofits and other non disclosing political groups had spent $0 in the 2006 election cycle. In 2010 right after the ruling, those groups accounted for 47 percent of political spending, $134 million but still, there was one part of the Citizens United ruling that stuck in James Bopp's craw.
JAMES BOPP JR.: They upheld a report, the disclosure Yeah, the disclosure report.
DAVID: Remember David Bossie originally asked Bopp to help his group circumvent the McCain Feingold law and let Citizens United air its glorified anti-Hillary campaign ad in the middle of the election. But Bossie also told Bopp he wanted to ignore the McCain-Feingold law's disclosure provisions and hide the names of the ad's funders from the public on that disclosure issue, the court actually ruled against Citizens United. The court ruled that laws requiring big spenders in elections and politics to be disclosed, those laws were constitutional. We reject Citizens United's challenge to the disclaimer and disclosure provisions. Those mechanisms provide information to the electorate, the resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.
DAVID: When he heard this caveat, Senator Sheldon Whitehouse saw an opportunity to call the Supreme Court's bluff. He introduced a bill called the Democracy Is Strengthened by Casting Light On Spending in Elections. Act, a hilariously wordy attempt to get a pithy acronym the DISCLOSE Act.
SEN. SHELDON WHITEHOUSE: The DISCLOSE Act was originally designed to require that you trace back to the actual source of political contributions for any contribution to a political campaign, or a PAC or a Super PAC, over $10,000 in a individual race. That's not a whole lot of people, but at that level, you really are buying influence. And so I think it's important for voters to understand what's going on in their political world around them.
DAVID: Democrats rallied behind the DISCLOSE Act right away, while Republicans like Mitch McConnell contorted themselves to swat it down.
Archival Clip, Mitch McConnell: This DISCLOSE Act is not about reform. It's nothing more than Democrats sitting behind closed doors with special interest lobbyists choosing which favored groups they want to speak in the 2010 Election.
DAVID: McConnell and the other master planners were not satisfied just stopping the DISCLOSE Act in the Senate and walking off into the sunset with the Citizens United ruling. If your movement's half-century goal is to completely deregulate the campaign finance system and legalize the buying of elections so that a handful of anonymous big spenders could completely control politics, what more could you possibly want after Citizens United? Well, one answer to that question is something that was baked into the Citizens United case by the master planner's favorite justice of all, the guy that we now know was being secretly wined and dined by billionaires Clarence Thomas in a concurrence that almost nobody noticed. Thomas voted for the ruling, but said he thought it didn't go far enough. He said, Wait, wait, hang on. Can I get that evil voice special effect one more time? Okay? He wrote, quote, this Court should invalidate mandatory disclosure and reporting requirements.
DAVID: So if you're a master planner, maybe after Citizens United, you want to try to do that, kill off all disclosure and maybe you also want to hobble the last remaining campaign finance regulators on the beat. And maybe, just maybe, you want to try to get the government to declare that cash for favors like actual money for actual political favors is now completely legal.
ARCHIVAL NEWS FOOTAGE: In the day's other news, the U.S. Supreme Court lent a seemingly sympathetic ear to former Virginia Governor Bob McDonnell. He faces two years in prison for accepting thousands of dollars in gifts and loans from a businessman, but in today's arguments, both liberal and conservative justices suggested that federal bribery law is overborne.
DAVID: That's next time on Master Plan. Master Plan is a production of The Lever. This episode was written by Ula Culpa and David Sirota. Our editor is Ron Doyle. Our production team includes Laura Krantz, Jared Jacang Maher, Arjun Singh, and Ronnie Riccobene. Fact checking of this episode by Chris Walker. Original music is by Nick Byron Campbell, mixing by Louis Weeks, special thanks to James Bopp and Senator Sheldon Whitehouse. You can listen and subscribe to master plan on Apple podcasts, Spotify, iHeartRadio, YouTube, music or wherever else you get your podcasts for ad free episodes, exclusive bonus content, transcripts with links to our sources and access to The Lever’s entire archive of investigative journalism, please visit levernews.com to become a subscriber.You've been here now 15 years. You're 80 years old. Any thought about retiring?
ARCHIVAL NEWS FOOTAGE, Lewis Powell: My health has not been good. I go to the Mayo Clinic with some frequency, but at the moment I have no present plans.
DAVID: But then, literally, the next day —
ARCHIVAL NEWS FOOTAGE, Newscaster: Good evening. Justice Lewis Powell, a courtly Southerner surprised almost everyone today by announcing his retirement from the US Supreme Court. His decision touched off a flurry of speculation on who the President will appoint as a replacement and how that will affect the direction of the court, and of course, the country.
DAVID: That meant Anthony Kennedy's old pal from Sacramento, now-President Ronald Reagan, suddenly had a chance to nominate a new Supreme Court justice. Want to guess who Reagan first picked to fill Lewis Powell's seat? Nope, not Anthony Kennedy. Reagan first went for the A-Lister of the master plan cinematic universe, the one, the only Robert Bork. Yep, that's the same Robert Bork who did Nixon's dirty work and who helped Gerald Ford get the Buckley v Valeo ruling, as you also heard a few episodes ago, when Reagan nominated the Rasputin-like Bork to the Supreme Court, Senate Democrats fought back. We told you that Bork got borked, but we didn't tell you what happened next when Bork was voted down, Reagan's second choice was Douglas Ginsburg. Ginsburg had led the Reagan White House's deregulation agenda. He'd hobbled antitrust enforcement at the Justice Department, and he had just made an appearance at a Federalist Society event. I mean, he was no Robert Bork, but he was a pretty perfect Master Plan pick, right? Well, almost —
ARCHIVAL NEWS FOOTAGE: Ginsburg was forced to withdraw from consideration in a very 1980s scandal, several conservative Republicans had urged President Reagan to withdraw Ginsburg nomination after he disclosed he smoked marijuana in the ‘60s and ‘70s.
DAVID: Listen, I remember this happening when I was a kid who smoked weed, and when was a huge deal back then. So Ginsburg got Borked too. Months after Powell's retirement, Reagan, just like Nixon in the early 1970s was zero for two in Supreme Court nominees. And just like Nixon with Powell back then, Reagan now needed to find a jurist who was conservative enough to get nominated, but who presented as liberal and reasonable enough to get confirmed. And so Reagan turned to his old Sacramento buddy,
Archival Clip, Reporter: Anthony Kennedy, you’re the third choice for this seat.
Archival Clip, Anthony Kennedy: I'm delighted with this nomination.
Archival Clip, Reporter: Mr. President, why didn't you nominate judge Kennedy?
Archival Clip, Ronald Reagan: I have told you that all three, we came down to a final three, and that all three were so close and so well qualified, you could have almost thrown the Dart. Thank you for coming by that decision right away.
DAVID: Kennedy was seen as the nice guy alternative to the hard edged Bork and the pothead Ginsburg during his confirmation hearing, Kennedy's past career in Sacramento's influence peddling industry wasn't seen as a liability at all. In fact, Republican senators like Orrin Hatch seemed thrilled that Kennedy had experience as both an attorney and a corporate lobbyist. Here's hatch at Kennedy's confirmation hearing.
Archival Congressional Clip, Orrin Hatch: Well, I see you as a person with your experience, both as an eminent lawyer as a person who has worked as a lobbyist as. Person who might have a great deal of ability on that court to bring consensus about Democrats.
DAVID: This time, offered literally zero opposition to Reagan's Supreme Court nominee, Kennedy, was unanimously confirmed on February 3, 1988
Archival Clip, Ronald Reagan: Judge, and now justice, Kennedy — sounds good, doesn't it? — takes a distinguished seat on the high bench.
DAVID:At Kennedy's swearing in ceremony, Reagan made sure to draw parallels between Kennedy and the man he was replacing on the bench,
Archival Clip, Ronald Reagan: One of the great gentlemen of the American judiciary, a justice widely acclaimed for his decency and fairness. Justice Lewis Powell, like his distinguished predecessor…
DAVID:That may have sounded placating to liberals, but in retrospect, it must have been reassuring to the master planners. Upon joining the court, Kennedy started to build a moderate profile on social issues, notably in 1992 he co authored an opinion that reaffirmed Roe v Wade, but he also opted to uphold some abortion restrictions. Meanwhile, for those paying close attention, Anthony Kennedy, the former corporate lobbyist, also started dog whistling to the master planners about corruption and campaign finance. He voted against and wrote the dissent in a 1990 case that upheld the state law preventing corporations from using their funds to support political campaigns. He voted to let political parties make unlimited expenditures to buy elections for their congressional candidates, as long as they didn't directly coordinate with those candidates. And Kennedy voted against upholding certain provisions of the McCain Feingold campaign finance law in that case you heard about in episode six, but mostly for his first 17 years on the court, Kennedy was kind of a backbencher. You just didn't hear a ton about him. That all changed, though, when Sandra Day O'Connor and William Rehnquist were replaced by John Roberts and Sam Alito. All of a sudden, Anthony Kennedy became one of the most powerful men in America, able to instantly shift national policy on any issue that came before the High Court,
ARCHIVAL NEWS FOOTAGE: With four liberal justices and four conservatives on the Supreme Court, Justice, Anthony Kennedy's swing vote will be key.
ARCHIVAL NEWS FOOTAGE: A moderate conservative whose votes on high stakes cases are close to impossible to predict.
ARCHIVAL NEWS FOOTAGE: He's the man in the middle, the right leaning justice who often swings left on some of the most hot button cases
DAVID: After the Roberts-Alito Supreme Court takeover, Kennedy's rulings with liberal justices on LGBTQ issues, habeas corpus, abortion rights, they probably made it seem like he'd keep the court from going too far to the right, but conservatives knew that Kennedy's vote could be swung, so they began lining up to throw all kinds of cases at him and the new conservative majority on the court, like kids lining up to see Santa Claus, but as they say in Christmas Story,
Archival Clip, Film: the line waiting to see Santa Claus stretched all the way back to Terre Haute,
DAVID: Back at his storefront office in Terre Haute, Indiana, James Bopp had his eye on deregulating the campaign finance system, a cause that Kennedy seemed especially amenable to. So Bopp elbowed his way to the front of the queue with a case that brought his two pet causes together, the crusade against abortion and the crusade to deregulate campaign finance laws.
JAMES BOPP JR.: I can't tell the story without talking about Wisconsin right to life.
DAVID: James Bopp saw a new chance to try to go big. It was absolutely critical. Bopp is talking about FEC v Wisconsin right to life, a Supreme Court case that was heard right after John Roberts and Sam Alito were installed, right when Anthony Kennedy was the new swing vote
JAMES BOPP JR.: Wisconsin right to life contacts me and says that there's an upcoming vote on Bush's judicial nominees, Feingold of McCain, Feingold fame is up for election, and we want to lobby him, and the vote is going to be in September.
ARCHIVAL NEWS FOOTAGE: The special interest anti abortion group Wisconsin right to life is now airing this TV spot. There are a lot of judicial nominees out there who can't go to work, but come this weekend, this ad and corresponding radio hits will be illegal. Why nominees because Wisconsin Right to Life or WRTL talks about in its ad, contact Senators Feingold and Cole and tell them to oppose the filibuster.
DAVID: Wisconsin Right To Life ads fell within the 60 day window or blackout period before that year's general election, which made it subject to the restrictions of the McCain-Feingold campaign finance law, which, as you heard before, had been upheld by the pre-Roberts, pre-Alito Supreme Court. Under that law, the group couldn't mention Senator Feingold by name, because that would be considered electioneering. So Bopp sued on the grounds that those restrictions were a violation of free speech. On April 25, 2007, James Bopp argued that case in front of the Roberts and Alito Supreme Court. The questioning focused on whether the Wisconsin right to life ads were just issue ads designed to lobby, or whether they were a stealthy form of electioneering against the candidate in the election. Here's Justice Stevens questioning Bopp about the distinction.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): Are you trying to convince us? The purpose of these ads was to convince Senator Feingold to change his position on filibuster.
JAMES BOPP JR.: It was, indeed it was to lobby him.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): Did you think that was a realistic goal?
JAMES BOPP JR.: Yes, as it turns out, because in 2006 we ran the same sort of anti filibuster as and Senator Cole, now up for reelection, changed his position on the filibuster. So these things happen. In other words, people, people's positions are affected by grassroots lobbying, and at least people should have the opportunity.
DAVID: Then, Anthony Kennedy chimed in.
Archival Clip, Justice Anthony Kennedy: Is that called democracy?
DAVID: Senators Feingold and Cole and tell them to oppose the filibuster those
Archival Clip, JAMES BOPP JR.: We are hopeful. Your Honor.
DAVID: Ultimately, the conservative majority on the court, including the key swing vote, Anthony Kennedy narrowly agreed with Bop, saying that Wisconsin right to life's ads were not express political advocacy, since they didn't literally tell people whether or not to vote for specific candidates. The Court declared that Wisconsin right to life's ads could not be regulated by the McCain-Feingold campaign finance law. Here's Chief Justice John Roberts once again, play acting as a baseball umpire.
Archival Clip, John Roberts: 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.
DAVID: Put another way, a mere four years after the old Rehnquist Court dunked on the master planners and upheld McCain's campaign finance law, the new Roberts Court had just sided with those same master planners and overturned a major part of that law. This was an Empire Strikes Back moment for the ages.
SEN. SHELDON WHITEHOUSE (D-R.I.): I call that the ‘Magic words’ case.
DAVID: This is Senator Sheldon Whitehouse. White House first took his seat as the junior senator from Rhode Island just six months before the decision in FEC versus Wisconsin right to life came down. He told us just how significant this little noticed case really was. That was the case in which Supreme Court decided what the magic words were, that if you used them in an ad, it became a political ad and was subject to a variety of regulations and limitations. But if you didn't use those magic words, then you could say that your ad was not a political ad, but it was issue advocacy. You weren't recommending a vote against Senator Whitehouse. You were just recommending that voters call up Senator Whitehouse and ask why he was a thieving, dirty, puppy-hating, anti-American scoundrel, right? The effect on the airwaves is the same, but if you didn't use the magic words about vote or elect then this whole new avenue opened up for dirty political TV advertising.
DAVID: Whitehouse said that the little magic words loophole started opening up the floodgates for unregulated, anonymous, dark money ads that buy elections, all under the guise of educating the public with so-called ‘issue ads’ rather than electioneering. I think that was the purpose of the exercise. Here are the words that if you don't use them, you're good to go on election spending.
DAVID: So you can see why. James Bopp told us that the decision in FEC v Wisconsin Right To Life was absolutely critical. It was a huge blow to the McCain-Feingold campaign finance law, but perhaps more importantly, it showed Bopp how this new Roberts Alito court was inclined to rule on all of these campaign finance issues. Bopp also noticed something else. Arch conservative justice Antonin Scalia wrote a concurrence, agreeing with the court's decision, but saying it should have gone a step further and completely eliminated McCain-Feingold's prohibitions against unlimited corporate spending to sway elections. The concurrence was backed by Clarence Thomas, hardly a surprise, but there was a third signature on the document, you guessed it, Anthony Kennedy. That was a signal to James Bopp that perhaps he could get Kennedy, the old Sacramento Swamp Thing, to channel his predecessor, Lewis Powell, and go huge.
ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON): I announced today that I'm forming a presidential exploratory committee. I'm not just starting a campaign, though. I'm beginning a conversation with you, with America.
DAVID: It's early 2007. Hillary Clinton has announced her campaign for president. James Bopp is in Terre Haute, working on arguments that might get justices to go big in that Wisconsin right to life case.
ARCHIVAL CAMPAIGN SPEECH (HILLARY CLINTON): So let the conversation begin, I have a feeling it's going to be very interesting.
DAVID: And then one day, James Bopp’s phone rings,
JAMES BOPP JR.: So I'm sitting in my office, and I get a phone call from David Bossie.
DAVID: David Bossie is a conservative activist. In 1992 he was working for a non-profit that was first founded by the same people who made one of the sleaziest dark money ads in American history, the Willie Horton ad that shifted the 1988 presidential election that you heard about in episode six. By 2000, Bossie was the organization's president, so James Bopp picks up the phone to talk to David Bossie and Bossie asks Bopp if he'd represent his organization in a juicy lawsuit about Hillary Clinton that could end up letting corporations spend unlimited amounts of money in politics.
ARCHIVAL AD: Oh, baby. You know what I like.
DAVID: James Bopp likes big campaign finance cases, and this one might be the biggest of them all.
JAMES BOPP JR.: And he said, ‘I'm working on a movie called Hillary: The Movie, alright?’ And this is now in early 2007, I'm working on a movie, and she's running for president.
DAVID: Hillary: The Movie was promoted by Bossie as a documentary, but it was functionally just a hyper conservative 90-minute anti-Clinton campaign ad with Sad, Scary Music, all funded by a boatload of anonymous money.
“HILLARY: THE MOVIE”: She's deceitful. She'll make up any story, lie about anything, as long as it serves her purpose of the moment, and the American people are going to catch on to it. I can't think of any other politician in history who has shown such a disrespect and a contempt for the Constitution and the rule of law as Hillary.
DAVID: Bossie was calling bop to figure out how to drop this thing into the 2008 election cycle while skirting campaign finance laws that apply to political ads during elections.
JAMES BOPP JR.: I want to broadcast this movie, and I need your help two ways. Okay, first way is to make sure that our movie script does not have an appeal to vote for or against a candidate, because I want to be able to do this, and if it has an appeal to vote, I'm prohibited, so I want you to give me the advice to make sure that they could still do this movie.
DAVID: The second thing Bossie wanted Bopp's help on was finding a legal way to get around the requirement to file a disclosure report about who exactly was funding the project.
JAMES BOPP JR.: The report would have required him to reveal his donors, and people would not want to contribute if they are going to be outed as funding an anti-Hillary certainly critical Hillary movie, right? So he doesn't want to have to do this report of their donors.
DAVID: This is something we've seen over and over again in our reporting, conservatives want to be able to broadcast whatever messages they want, but they don't want to have to admit who is actually funding the message. And this quote, unquote movie was pretty nasty.
“HILLARY: THE MOVIE”: I knew Richard Nixon, and I'll tell you something, she's no Richard Nixon. She's worse, ruthless, vindictive, venal, sneaky, ideological, intolerant, liar is a good one…scares the hell out of me.
DAVID: So Bopp took the lessons he learned in the Wisconsin case, and he set about strategically assembling this new case using arguments that Roberts and Scalia and Kennedy had signaled they were sympathetic to, and just like his inspiration, Thurgood Marshall in Brown v Board of Education, James Bopp hoped this case would be the big one. Bossie's organization had run into issues with federal election regulators in the past. They tried to make some so-called documentaries before, but the dark money group was clearly a political organization and not a movie studio. So more than once, the Federal Election Commission insisted that they were subject to McCain-Feingold's restrictions. Bopp anticipated a similar pushback on Hillary: The Movie, but rather than waiting for federal election regulators to send a cease-and-desist letter to Bossie, Bopp had a genius idea. He went to a lower court demanding a declaratory judgment up front one that would officially allow Bossie to air his documentary right up until the 2008 primaries. In other words. Courts. Bopp took a play out of the Powell memo and used this case as a preemptive attack.
LEWIS BLACK AS LEWIS POWELL: The greatest care should be exercised in selecting the cases in which to participate.
DAVID: He used this obscure movie to create a case out of thin air, the lower court said, essentially no campaign finance restrictions obviously apply to this, but that ruling gave Bopp what he really wanted, a way to appeal the case up to John Roberts, Sam Alito and Anthony Kennedy on the Supreme Court. When Hillary: The Movie became a legal case, it ended up being named after Bossie’s non-Movie Studio, nonprofit, maybe you've heard of it:
ARCHIVAL NEWS FOOTAGE:
…The Citizens United case…
…Citizens United…
…Citizens United…
…Get rid of Citizens United and its pernicious effects on our electoral system…
DAVID: Citizens United was appealed up to the Supreme Court in August of 2008 Hillary Clinton was long gone from the presidential race, defeated by Barack Obama, but that didn't matter, the master planners were after something much bigger. The Court agreed to hear the case three months later, and then David Bossie replaced James Bopp. Bossie bumped bop for a new Hot Shot attorney named Ted Olson. By 2008 Olson was already famous in master plan circles. He'd been a founding member of the Federalist Society and the bush campaign's mouthpiece at the Supreme Court in Bush v Gore, which decided the 2000 election. Supposedly, David Bossie had seen Olson win a Republican lawyer of the Year Award at an event in Washington, DC in October 2008 where another attorney called Olson the quote, “winningest Supreme Court lawyer.” So when bosses challenge was accepted at the High Court The following month, he told his co-founder that they should ditch old James Bopp in Terre Haute and pick up Olson instead like leaving prom with the popular girls. When Olson took over the Citizens United case, he slightly reformulated Bopp's argument. He focused on the idea that Hillary: The Movie was not what the McCain Feingold campaign finance law was actually supposed to prohibit. It was a documentary movie that viewers had to seek out on video on demand, not a screeching election ad that couldn't be avoided on cable TV.
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Mr. Chief Justice, and may it please the Court, participation in the political process is the First Amendment's most fundamental guarantee yet, that freedom is being smothered by one of the most complicated, expensive and incomprehensible regulatory regimes ever invented by the administrative state.
DAVID: It was Olson who first brought up the word “corruption.”
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): The government cannot prove, and has not attempted to prove, that a 90-minute documentary poses any threat of quid pro quo, corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest, that the First Amendment is there to guarantee.
DAVID: Olson argued with a straight face that Hillary the movie wasn't an election focused ad governed by campaign finance laws, despite the fact that it was dropped in the middle of an election and spends 90 minutes insisting that Hillary Clinton was unqualified for the presidency and was, I'm paraphrasing here, basically the Antichrist. Justice Souter for one wasn't buying. It.
ARCHIVAL SUPREME COURT AUDIO (DAVID SOUTER): Doesn't this one fall into campaign, advocacy. I mean, I've got the government's brief open at pages 18 and 19, with the quotations. She'll lie about anything. She's deceitful. She's ruthless, cunning, dishonest. Do anything for power. We'll speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief. I mean, this sounds to me like campaign advocacy.
DAVID: Yeah, you think? In response, the master planners on the Supreme Court pretty much hijacked the oral arguments the same way your crotchety uncle pulls the ‘well actually’ move to steer the Thanksgiving dinner conversation towards his bizarre theories. For example, instead of a discussion about money, influence, election buying and corruption, what the case was actually about justice, Sam Alito forced the government's defense lawyer into an absurd debate about book banning. Here's Kennedy.
ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY): Suppose it were an advocacy organization that had a book, your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 or 30 day period
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Tf the book contained the functional equivalent of Express advocacy, that is, if it was subject to no reasonable interpretation
DAVID: They proceeded to get into an even more ludicrous debate about e-books that are accessed via satellite
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): within the 6030, day period. If it comes from a satellite, it can be prohibited under the Constitution and perhaps under the statute.
DAVID: I mean, this is a case about a movie. What are they even talking about? I feel like I'm Steve Martin in Planes, Trains and Automobiles.
“Planes, Trains and Automobiles”: When you're telling these little stories, here's a good idea: Have a point. It makes it so much more interesting for the listener.
DAVID: The FEC’s lawyer tried to steer the justices back on track.
ARCHIVAL SUPREME COURT AUDIO: It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book, and could be required to raise funds to publish the book using its PAC.
DAVID: That was the actual point. And unfortunately, the FEC’s lawyer didn't make it very well. It wasn't really about whether the government could or would prohibit the publication of a book that urged its readers to vote or not vote for a specific candidate. It was about a corporation being able to anonymously funnel money from its coffers into election communications with no restrictions, and the government was arguing that they'd have to use a regulated PAC or explicitly disclosed political money instead. It's worth reiterating that none of this is what the original case was asking about. But as the ever more twisted and deranged arguments went on, the conservative justices like Anthony Kennedy kept insisting that it was a free speech question, even though it really wasn't. Then an hour later, it was over.
ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): Thank you, Counsel. The case is submitted.
ULA: What happens behind the scenes when the justices vote on this case is kind of my favorite part of the story.
DAVID: This is producer Ula Culpa, to tell us about when things got really interesting.
ULA: So after oral argument, the justices meet in private and have a round of initial votes on the case. It falls basically along ideological lines, with the four liberals against Citizens United and the five conservatives, including Anthony Kennedy, in favor of saying that McCain-Feingold [Bipartisan Campaign Finance Reform Act] did not apply to Hillary: The Movie, Roberts gets to work on a narrow opinion saying that, but Kennedy writes a concurrence that argues that they should go way bigger and invalidate any campaign finance restrictions on allegedly independent political groups like Citizens United.
DAVID: So Roberts and the other conservatives then compare drafts, and they love Kennedy's idea so much that Roberts withdraws his more narrow opinion and lets Kennedy write the majority
ULA: Exactly. And this is where the drama hits after Justice Souter sees what Roberts and Kennedy are planning to do. He gets pissed and writes a dissent, and it has become infamous in legal circles because it was this Full Tilt bridge burning attack on the logic of his fellow justices, which is something that almost never happens, and definitely not like this. Reportedly, Souter berated not only the conclusions that Roberts and Kennedy had come to, but the like intellectual depravity to step outside of and way beyond what this case was asking in the first place.
DAVID: Finally, someone was calling bullshit. Okay, so read us some excerpts.
ULA: Well, I can't.
DAVID: Wait. Why?
ULA: Because very few people have actually ever seen Souter's dissent, and that's because not long after he drafted it, just as David Souter has informed the White House, he will retire at the end of a Supreme Court term in June. God, it's exactly like that scene from Half-Baked.
“HALF-BAKED”: Fuck you, Fuck you, fuck you… You're cool…Fuck you. I'm out
ULA: Totally and then John Roberts basically makes sure Souter’s dissent never gets published as part of the official record. Because instead of the ruling coming out at the end of the court's term, like you might expect, Citizens United is suddenly scheduled for re-argument in the fall.
DAVID: What the hell is reargument?
ULA: It's when the Court asks the lawyers to write all new briefs about all new questions. In this case, Roberts asked them to address big constitutional questions that signaled that the court wasn't going to issue a narrow ruling about one movie. It was going to follow Kennedy's lead and go really, really big.
DAVID: So here we are in the fall of 2009, things still seem all Hopey-and-Changey over in the White House, but only a few blocks away at the Supreme Court. Shit is about to go down. The Master planners had taken over the court with Roberts and Alito. James Bopp had given Anthony Kennedy the chance to go big, and Roberts figures out a way to make it all happen. This is like the master planners a team moment.
DAVID: So six months after the first argument in the Citizens United case, David Souter is retired. His barn burning warning about the end of democracy is nowhere to be found. The ideological Terminator John Roberts rewinds the clock and lets Federalist Society luminary Ted Olson make a whole new argument to the court,
ARCHIVAL SUPREME COURT AUDIO (TED OLSON): Mr. Chief Justice, and may it please the Court.
DAVID: This was no longer a little argument about a specific campaign finance law and a dumb documentary, but a robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech.
Olson and his client Citizens United were now resurrecting the old free speech arguments from Buckley v. Valeo and from Lewis Powell's Bellotti ruling that you heard about in episode five. Essentially, they argued that money is protected speech. They also argued that corporations, therefore have a constitutional right to spend unlimited money in elections, as long as it's not directly coordinated by candidates, and that such independent spending isn't a corrupting force. The justices seem supportive of that view. John McCain said they seemed totally out of touch with reality.
ARCHIVAL NEWS FOOTAGE (JOHN MCCAIN): I was rather disappointed in some of the justices apparent naivete as to how corporate and union and unlimited money affects the legislative process. Does anyone believe that the rights of average citizens to be heard in Washington would not be overridden by massive, unlimited campaign contributions from corporations and unions?
DAVID: McCain was correct. Nobody believed that, but that was a feature of the Citizens United case, not a bug. A ruling in favor of Citizens United would override average citizens' voices and create a society run by corporations and oligarchs, just as James Bopp's fellow Hoosier Ron Swanson had dreamed of back in fictional small town, Indiana.
“PARKS AND RECREATION”: I think that all government is a waste of taxpayer money. My dream is to have the park system privatized and run entirely for profit by corporations like Chuck E. Cheese. They have an impeccable business model. I would rather work for Chuck E. Cheese.
DAVID: McCain, Feingold and all the Reformers warned that ruling for Citizens United would deregulate the campaign finance system and basically make Ron Swanson's vision a reality. Politicians and public officials would work for Chuck E. Cheese and every other corporation, and those corporations would be allowed to buy elections. I mean, the Supreme Court was pretty radical, but would it really go that far? That's after the break.
ARCHIVAL SUPREME COURT AUDIO (JOHN ROBERTS): In case 08205, Citizens United v. the FEC, Justice Kennedy has the opinion of the court.
DAVID: On January 21, 2010, just over four months after the second round of arguments, the decision in Citizens United came down this time. It wasn't Chief Justice John Roberts writing the majority opinion. It was the old Sacramento Swamp Thing, former lobbyist and influence peddler Anthony Kennedy in announcing the decision to the public. Kennedy first laid out why the majority had decided to go big. He identified the precedents that were relevant to the case, like the court's ruling a few years prior, that had held up the McCain Feingold campaign finance law. And then, he said, we conclude that those precedents now must be reexamined. The Court has recognized that First Amendment protection extends to corporations. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.
DAVID: The precedents the court's majority was now dismantling, according to Kennedy, would
ARCHIVAL SUPREME COURT AUDIO (ANTHONY KENNEDY): —allow the government to ban corporations from expressing political views through any media, including media beyond those presented here and in this case, such as by printing books, political speech is indispensable to decision making in a democracy. And this is no less true because the speech comes from a corporation rather than an individual.
DAVID: This is the radical corporations or people concept on steroids, and the opinion was directly built from that Belotti ruling, first authored by Kennedy's immediate predecessor, Lewis Powell, even more radical, Anthony Kennedy, who spent his early years as a lobbyist doling out campaign cash to sway legislators. That same Anthony Kennedy was now also insisting that money in politics was only corrupting when there was an explicit quid pro quo, but all the other things that Anthony Kennedy himself had helped his Sacramento lobbying clients use money to buy stuff like access and influence that stuff was apparently not corrupting. That sounds like an exaggeration, but in his written opinion, Kennedy asserted that campaign donors, quote, may have influence over or access to elected officials, but that did not quote mean that these officials are corrupt. And then Kennedy wrote something so crazy that — hold on, hold on. Can I get a special effect on my voice for this so that it sounds extra evil? Okay, there we go.
Kennedy said, quote, independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. I mean, think about how insane that is. Anthony Kennedy non ironically, wrote a ruling with the force of law that essentially declares that when a corporation spends $50 million blanketing your state to help one candidate win a US Senate election, there's no corruption or even appearance of corruption when that candidate then does legislative favors for that corporation. Justice Stevens wrote the dissent on behalf of the liberals. It may not have been Souter's barn burner, but it was pretty close. It was 90 pages long and probably bolstered by the fact that Stevens was 90 years old and also nearly ready to retire.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): As one of the joint authors of the opinion in McConnell, I must emphatically disagree with today's law changing decision…
DAVID: Stevens’ dissent made the point that up until O'Connor and Rehnquist were replaced by Roberts and Alito, the court had upheld at least some restrictions on corporate spending in elections.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): The Court has the point exactly backwards. At the founding Americans took it as a given that corporations could be comprehensively regulated in the service of the public welfare. It is doubtful that the framers believed the freedom of speech would extend to corporations who cannot themselves engage in speech. And is even more doubtful that when they ratified the First Amendment, they thought they were laying down a principle that could be used to insulate corporations from even modest restrictions on electioneering expenditures.
DAVID: After speaking for 20 minutes, twice as long as Kennedy had, Stevens had his mic drop moment.
ARCHIVAL SUPREME COURT AUDIO (JOHN PAUL STEVENS): While American democracy is still imperfect, few outside the majority of this court would have thought its flaws included a shortage of corporate money in politics.
DAVID: Unsurprisingly, when the ruling came down, David Bossie of Citizens United was giddy.
ARCHIVAL NEWS FOOTAGE (DAVID BOSSIE): This is a monumental day for Citizens United, and more importantly, for the First Amendment and the fundamental rights of people to participate in the political process and the marketplace of ideas, whether you're an individual, whether you're a corporation or a union, it doesn't matter. You can now participate fully and freely in the election process.
DAVID: Here is Senator Sheldon Whitehouse again.
SEN. SHELDON WHITEHOUSE: My recollection, I was on the Senate floor and came back to read the decision.
DAVID: He said the decision was painful to read.
SEN. SHELDON WHITEHOUSE: I live in the immediate political world, and I was watching the Supreme Court buy into a notion about that political world that I knew to be false. They have applied a conceptual paradigm over politics that is complete and utter nonsense.
DAVID: While much of the country reacted to the decision with surprise and anger, White House says that conservative must have had an inkling that this was coming, because right after the decision came down, conservative and business interest groups immediately filed papers to create scores of unregulated dark money groups that could exploit the ruling.
SEN. SHELDON WHITEHOUSE: The fact that they had this whole 501(c)(4) apparatus ready to go sort of proved that this was an expected decision. In fact, you even have Virginia Thomas setting up her organization while the decision is being deliberated, so that on the day it's announced she's ready to go.
DAVID: Whitehouse is referring to Virginia Ginni Thomas, wife of justice, Clarence Thomas, just weeks before the ruling in Citizens United came down, she and Leonard Leo of the Federalist Society filed initial paperwork for a not for profit lobbying group called Liberty Central, a group designed to take advantage of the Citizens United ruling Liberty Central is America's public square. We inspire, we listen, we activate ordinary citizens to secure the blessings of liberty.
DAVID: Though it was hidden at the time, later, reporting revealed that Liberty Central's initial $500,000 of funding came from who else the Thomas's favorite billionaire, a guy named Harlan Crow, who'd been funding lavish trips for justice, Thomas on the other side of the aisle, Democrats openly criticized the Citizens United ruling. Here's President Obama in his State of the Union address less than a week after the decision
ARCHIVAL SPEECH AUDIO (BARACK OBAMA): Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including. Foreign corporations to spend without limit in our elections.
DAVID: In the video of the speech, you can see the justices stay seated and look stone-faced as much of the room stands to applaud Obama around them, and then there's Samuel Alito shaking his head and muttering, not true.
SEN. SHELDON WHITEHOUSE: It made me grieve for Sandra Day O'Connor, whose departure had opened the door for Alito particularly, and whose common sense and experience as somebody who had run for office, I think would have headed off Citizens United had she stayed on the court. So the whole thing was just sort of imbued with sorrow and missed chances, but the result at the end was a completely manufactured simulacrum of what the political world is like, created by the court and imposed on all of us.
DAVID: Whitehouse and John McCain tried to quickly limit the rulings effects. They asked the Supreme Court to at least prevent a lower court in Montana from now using Citizens United to gut that state's 100 year old anti corruption law the Supreme Court refused to even hear the case.
SEN. SHELDON WHITEHOUSE: So at that point, I realized, Oh, my God, this is not an innocent mistake. They are actually deliberately trying to open our political world to right wing political dark money.
DAVID: In my imagination, James Bopp was celebrating back home in Indiana when he read the Citizens United ruling.
“PARKS AND RECREATION”: Great job, everyone. The reception will be held in each of our individual houses alone.
DAVID: But alas, James Bopp wasn't there. He was actually on the beach.
JAMES BOPP JR.: I don't even remember why I was in Florida, but I was I remember very distinctly reading the opinion on the beach in Florida. Of course, I already knew the decision that they'd overturned, the two precedents that need to be overturned, and I do the vote.
DAVID: He was psyched. But if he doesn't sound 100% excited about the ruling, it's because he kind of wasn't sure he had gotten most of what he wanted. He had created a case that convinced the court to go huge and eviscerate campaign finance laws in a world changing ruling, four years before Citizens United, nonprofits and other non disclosing political groups had spent $0 in the 2006 election cycle. In 2010 right after the ruling, those groups accounted for 47 percent of political spending, $134 million but still, there was one part of the Citizens United ruling that stuck in James Bopp's craw.
JAMES BOPP JR.: They upheld a report, the disclosure Yeah, the disclosure report.
DAVID: Remember David Bossie originally asked Bopp to help his group circumvent the McCain Feingold law and let Citizens United air its glorified anti-Hillary campaign ad in the middle of the election. But Bossie also told Bopp he wanted to ignore the McCain-Feingold law's disclosure provisions and hide the names of the ad's funders from the public on that disclosure issue, the court actually ruled against Citizens United. The court ruled that laws requiring big spenders in elections and politics to be disclosed, those laws were constitutional. We reject Citizens United's challenge to the disclaimer and disclosure provisions. Those mechanisms provide information to the electorate, the resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.
DAVID: When he heard this caveat, Senator Sheldon Whitehouse saw an opportunity to call the Supreme Court's bluff. He introduced a bill called the Democracy Is Strengthened by Casting Light On Spending in Elections. Act, a hilariously wordy attempt to get a pithy acronym the DISCLOSE Act.
SEN. SHELDON WHITEHOUSE: The DISCLOSE Act was originally designed to require that you trace back to the actual source of political contributions for any contribution to a political campaign, or a PAC or a Super PAC, over $10,000 in a individual race. That's not a whole lot of people, but at that level, you really are buying influence. And so I think it's important for voters to understand what's going on in their political world around them.
DAVID: Democrats rallied behind the DISCLOSE Act right away, while Republicans like Mitch McConnell contorted themselves to swat it down.
Archival Clip, Mitch McConnell: This DISCLOSE Act is not about reform. It's nothing more than Democrats sitting behind closed doors with special interest lobbyists choosing which favored groups they want to speak in the 2010 Election.
DAVID: McConnell and the other master planners were not satisfied just stopping the DISCLOSE Act in the Senate and walking off into the sunset with the Citizens United ruling. If your movement's half-century goal is to completely deregulate the campaign finance system and legalize the buying of elections so that a handful of anonymous big spenders could completely control politics, what more could you possibly want after Citizens United? Well, one answer to that question is something that was baked into the Citizens United case by the master planner's favorite justice of all, the guy that we now know was being secretly wined and dined by billionaires Clarence Thomas in a concurrence that almost nobody noticed. Thomas voted for the ruling, but said he thought it didn't go far enough. He said, Wait, wait, hang on. Can I get that evil voice special effect one more time? Okay? He wrote, quote, this Court should invalidate mandatory disclosure and reporting requirements.
DAVID: So if you're a master planner, maybe after Citizens United, you want to try to do that, kill off all disclosure and maybe you also want to hobble the last remaining campaign finance regulators on the beat. And maybe, just maybe, you want to try to get the government to declare that cash for favors like actual money for actual political favors is now completely legal.
ARCHIVAL NEWS FOOTAGE: In the day's other news, the U.S. Supreme Court lent a seemingly sympathetic ear to former Virginia Governor Bob McDonnell. He faces two years in prison for accepting thousands of dollars in gifts and loans from a businessman, but in today's arguments, both liberal and conservative justices suggested that federal bribery law is overborne.
DAVID: That's next time on Master Plan. Master Plan is a production of The Lever. This episode was written by Ula Culpa and David Sirota. Our editor is Ron Doyle. Our production team includes Laura Krantz, Jared Jacang Maher, Arjun Singh, and Ronnie Riccobene. Fact checking of this episode by Chris Walker. Original music is by Nick Byron Campbell, mixing by Louis Weeks, special thanks to James Bopp and Senator Sheldon Whitehouse. You can listen and subscribe to master plan on Apple podcasts, Spotify, iHeartRadio, YouTube, music or wherever else you get your podcasts for ad free episodes, exclusive bonus content, transcripts with links to our sources and access to The Lever’s entire archive of investigative journalism, please visit levernews.com to become a subscriber.