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Citizens United and Jeffrey Toobin’s Account of it in The New Yorker

Posted By Vikram Amar, May 25, 2012

Cross-posted from Justia's Verdict.

The role of money in federal elections has never been more prominent than in this, the 2012 presidential, cycle.  It is thus quite natural that commentators these days would lavish attention on Citizens United v. Federal Election Commission, the 2010 blockbuster Supreme Court ruling saying that corporations and unions, just like individual persons, are entitled under the First Amendment to expend money to independently advocate in favor of or against candidates for elective office.

In this column, I look closely at a recent discussion of Citizens United provided by Jeffrey Toobin in The New Yorker. In the end, I conclude that while the story Toobin tells is elegant, fascinating and enlightening (as almost all of Toobin’s writing is), the analysis he offers does not fully work for me, or at least it requires a fair bit more explanation than he offers.

Background on the Citizens United Case

The Citizens United case arose under the federal McCain-Feingold campaign finance law, in which Congress tried to prohibit ads and other electioneering activities that advocate for or against any presidential candidate, that are paid for by corporate funds, and that run within 30 days of an election.  A nonprofit corporation called “Citizens United” had produced and readied for airing a cable TV video-on-demand documentary advocating against then-presidential-candidate Hillary Clinton shortly before a presidential primary.  The Federal Election Commission (FEC)—the federal agency charged with enforcement of federal election laws—ruled that the documentary movie amounted to “electioneering communication” and was thus covered under McCain-Feingold’s proscriptions.

The U.S. Court of Appeals for the D.C. Circuit agreed with the FEC, and the Citizens United organization went to the Supreme Court, arguing that the federal statute did not, and could not constitutionally, prohibit the airing of the documentary.  The case was first argued before the Supremes (with Republican loyalist and former Solicitor General Theodore Olson representing Citizens United) in March of 2009.  The federal government was represented by Deputy Solicitor General Malcolm Stewart.

More than three months after the argument, on June 29, the Justices, in an unusual move, decided not to resolve the case before their annual summer recess, but instead asked that the case be reargued the following Term (beginning in fall 2009), and that the parties focus this time on the larger questions of whether the differential treatment between corporations and individuals embodied in McCain-Feingold (and other campaign finance laws) was fundamentally inconsistent with the First Amendment, and whether past Court decisions upholding such differential treatment needed to be overruled.

The case was reargued in September 2009, and in early 2010 the Court issued its blockbuster 5-4 decision affording corporations the same First Amendment right as is enjoyed by individuals to make election-related express advocacy expenditures.

Toobin’s Take on Citizens United

Toobin, in his recent (May 21) New Yorker piece, “Money Unlimited,” provides a riveting backstory to the 2010 ruling.  A lawyer as well as a journalist, Toobin is a prominent translator of constitutional work product for lay audiences.  He has written books and dozens of articles discussing the Supreme Court, its cases, and its people.  Toobin generally does not advance or critique abstract legal theory or cutting-edge doctrinal approaches to interpreting and implementing the Constitution.  Instead, he seeks to make (and succeeds in making) legal concepts accessible to intelligent non-lawyers.  (It is because he is so successful and influential in this regard that what he writes deserves evaluation.)  In much of his work, Toobin emphasizes personal qualities and characteristics of the participants in legal episodes, and suggests how these qualities and characteristics can affect legal outcomes.  He also often explores the intellectual styles and modus operandi of decisionmakers in order to help readers make sense of the size and shape of the law.

It is thus not surprising that Toobin would tell the story of how Citizens United came to be by focusing on the personal strategic and leadership instincts of Chief Justice John Roberts, and on a dramatic (and what Toobin sees as a fundamentally game-changing) skirmish between the government’s lawyer in the first oral argument in the case, Malcolm Stewart, and the conservative Justices on the Court.

Toobin’s essay has many layers to it, but the basic suggestion he makes boils down to this:  The Citizens United case was on track to be resolved by the Court in a way that “might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law,” but that the first oral argument took the “case—and the law—in an entirely new direction,” and that, in particular, Mr. Stewart’s answer to one specific question was “an epic disaster” that “changed the case, and perhaps American history.”

Toobin’s strong implication (though he never quite says it this plainly) is that absent the transformational oral argument exchange between Mr. Stewart and the conservative Justices, the Court would likely have decided Citizens United simply by holding that the FEC and the D.C. Circuit were wrong in concluding that McCain-Feingold applied to the documentary in question; the case would thus have been resolved in terms of statutory interpretation (albeit statutory interpretation informed by the limits of the Constitution), rather than in terms of broad First Amendment first principles protecting corporations and other well-heeled interests.

But because of the fateful exchange, Toobin’s account goes, the five conservative Justices ended up reaching out and asking for new briefing and argument on the bigger constitutional issues that had theretofore been in the background.  According to Toobin, although the conservatives needed to go through the procedural hassle of waiting a year to make major constitutional change, the back-and-forth at Stewart’s oral argument set into motion the chain of events that led to a sweeping 2010 ruling in Citizens United, which in turn has opened the door to the huge infusion of money into the so-called “Super PACs” in this, the 2012, election.

What was this momentous Q & A in the first oral argument?  It was a series of queries about whether the ban on electioneering communications in McCain-Feingold could limit not just electronic media, but also books.

Justice Alito asked Stewart:  Could government limit a corporation from “providing [the same thing Citizens United provided in its documentary] in a book?  Would the Constitution permit the restriction of all those as well?”

Stewart’s response was straightforward:  “They [the limits on corporate-sponsored express advocacy pieces] could have been applied to additional media as well.”

Toobin argues that Stewart made a tactical blunder here.  According to Toobin, in the key part of his essay, “Stewart was wrong.  Congress could not ban a book.  McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life.  The influence of books operates in a completely different way.  Individuals have to make an affirmative choice to acquire and read a book.  Congress would have no reason, and no justification, to ban a book under the First Amendment.”

Assessing Toobin’s Account:  The Difficulty of His Proffered Distinction Between Books and Electronic Media

Before I explain my reaction to Toobin’s piece, let me disclose that I personally know both Toobin and Stewart.  I have met Toobin a few times, and I have exchanged a small number of emails with him.  I am a fan of his overall body of work, and I consider him a friendly acquaintance.  Mr. Stewart is someone I have known, worked with, and admired for over two decades.  He and I were classmates in law school and co-clerks in Justice Blackmun’s chambers, and I count him as a very close friend.  So while, in my discussion below, I try to analyze Toobin’s account as objectively as I possibly can, readers should be aware of potential blind spots on my part, as they think about the issues I discuss.

After digesting his essay, I remain somewhat unsatisfied by Toobin’s account in at least three ways.  Perhaps there are compelling answers to some or more of the questions I raise in these three respects, but I would need to hear them to be convinced.

First, the distinction Toobin draws between books containing advocacy (which he says cannot be regulated) and commercials that contain the same advocacy (which he suggests can be regulated) may not be easily workable in theory or in practice.

As to theory, are TV commercials really unavoidable (and for that reason regulable) in the way Toobin suggests?  Why can’t viewers change the channel or turn off the TV, just as they can decide not to purchase a book they see displayed in a bookstore window?  Putting aside truly “captive” audiences (e.g., passengers who use public transportation for their daily commute, etc.), why can’t we trust consumers of TV ads to self-screen just as we can trust consumers of books to do so?

And in practice, the line-drawing problems are formidable, perhaps even insurmountable.  If you can ban certain TV ads but not books, then what about TV ads promoting those books?  If you can ban TV ads, can you ban analogous newspaper ads?  If not, why not?  Newspaper ads are no more “avoidable” than are TV ads.  And if you can ban newspaper ads, what about pamphlets?  And if you can ban pamphlets but not books, when does a pamphlet become voluminous enough to become a book?  And what would we do with Internet ads and advocacy blogs that are financed by corporation money?

As a general matter, discriminating between different types of media has not been free from difficulty under First Amendment doctrine.  There are some older cases, most of which predate the information revolution, in which radio and TV are treated differently than print because the scarcity of airwaves historically has given government a freer hand. But that rationale has not easily been applied to cable entertainment (the context in which the Citizens United video was being offered).  More generally, airwave scarcity is not as tenable a justification for government regulation of electronic media as it once was.

The Second Problem with Toobin’s Analysis:  The Facts of the Citizens United Case Themselves

But let’s put aside the question whether, at some big-picture level, differentiation between books, on the one hand, and TV commercials, on the other, is permissible or required under the First Amendment.  There’s another serious problem here, too: On the facts of the Citizens United case, the answer that Toobin suggests that Stewart should have offered could easily have gotten him into more trouble than it might spare.

Why?  Because the Citizens United case did not involve a television commercial; it involved a feature-length 90-minute documentary movie that was available via on-demand cable!  Even if Toobin is onto something (and he may be) when he says there is a constitutionally significant difference between a 60-second TV spot “imposed” upon reluctant viewers and a book that would-be readers have to go buy or borrow in order to read, how is a 90-minute on-demand movie–that is, one that must be selected by viewers in order to be seen– any different than a book that, in Toobin’s own words, readers make an “affirmative choice to acquire and read”?  What I am saying here is that Stewart could not easily have proffered the answer Toobin suggests, because the very movie at issue in the case would have fallen on the wrong side of the constitutional line that Toobin wants to draw!

Had Stewart said, “Your Honors, books cannot be regulated because people can choose not to acquire and read them,” the Justices would have pounced on him and retorted, “Well, isn’t the same true of the 90-minute on-demand cable documentary the government seeks to regulate here?”  Perhaps Stewart could have done some fancy dancing about how Congress is entitled to draw broad categories that make general sense and then apply those categorical rules to particular instances in which the rationales for the categorical differentiation aren’t present, even in the First Amendment realm, and even where the constitutional claim challenges a particular statute’s application rather than the statute’s facial essence.  But the chances that such a tap dance would have succeeded seem exceedingly low.

In the end, then, Toobin’s gripe seems less with Stewart’s oral argument or with any of the answers Stewart gave there, but more with the government’s decision to apply McCain-Feingold in the context, not of a 60-second ad, but of a 90-minute on-demand cable movie, in the first place.

Perhaps there is a basis for criticism in the FEC’s decision to construe McCain-Feingold as applying to the documentary, and the DOJ’s strategic choice to support that decision (I express no view on those matters), but all of that was decided by the government when it decided to contest the lawsuit filed by Citizens United.  It was at that point that the die was cast, and if the conservative Justices were going to be angered by the aggressive stance taken by the government, that anger had nothing to do with oral argument, but instead with the initial decision by the government to regulate the movie in question.  And if that anger was going to cause the Court to “go big” by resolving the case in a dramatic, comprehensive First Amendment fashion, then the oral argument flashpoint Toobin highlights was neither here nor there.

My Third Reservation:  Where Is the Link Between Stewart’s Oral Argument and Justice Kennedy’s Ambition?

My third reservation about Toobin’s thesis is related to my second.  Toobin suggests, without fully explaining his reasoning, that the response Stewart gave about books is what caused the Court to call for reargument and widen the scope of the case.

Toobin recounts, seemingly based on some access to behind-the-scenes information—much of what he describes would not have been publicly accessible—that after Stewart’s argument, Chief Justice Roberts first circulated a draft opinion that would have resolved the case narrowly by simply deciding that the statute didn’t cover this film (which was Citizens United’s initial argument, on which they lost before the FEC), but that Justice Kennedy wrote a draft concurring opinion in which he indicated that the differential statutory treatment of corporations in McCain-Feingold itself violated the Constitution, and that older cases permitting discrimination against corporations should be overruled.

It was at that point, Toobin says, that Chief Justice Roberts understood that if the case were to be reargued, there would be five votes for a broad, constitutional invalidation of this major cog in the McCain-Feingold law.

So, Toobin says, Roberts got the Court to vote for reargument and, after that new argument took place, he assigned the majority opinion to Justice Kennedy, who then converted his concurrence draft into an opinion for a five-member Court majority.

But what’s missing from Toobin’s story—and this is the critical point—is any specific reason to believe that Kennedy and the other four Justices who ended up joining him were moved in any way by Stewart’s oral argument answer.

On the face of things, it seems unlikely that Stewart’s oral argument answer was a significant factor.  Remember that, according to Toobin’s own account, well after the first oral argument, Chief Justice Roberts drafted and circulated a narrow opinion resolving the case.  If Stewart’s oral argument had caused any of the conservative Justices to want to decide the case more ambitiously, wouldn’t that have been made known to the Chief Justice in the post-argument conference on which he based his decision about how to draft the opinion that he planned to circulate to garner a majority?  Why did the oral argument’s catalyst effect take weeks or months to manifest itself to the point where Chief Justice Roberts, a sharp cookie to be sure, could see it?

If Toobin has any inside information that might rebut the natural inference of non-causation based on the time lapse I describe, one might have thought that he’d be able to quote, or at least summarize, a source’s words to the effect that Stewart’s broad answer asserting regulatory powers over books is what sent Justice Kennedy or others over the cliff.  But Toobin makes no such suggestion.

Indeed, much of Toobin’s essay is devoted to explaining that Justice Kennedy has been constitutionally opposed to a great deal of campaign finance law—and the differential treatment of corporations under it—for two decades.  As Toobin puts the point, “All the Justices knew that Kennedy’s views were most extreme when it came to the First Amendment.”

This is likely true, but it undercuts, rather than supports, Toobin’s suggestion that Stewart’s argument answer had anything to do with Justice Kennedy’s (ultimately successful) gambit to use this case to remake First Amendment law.

More generally, as Toobin himself acknowledges, once Justice Alito replaced Justice O’Connor, it was clear as early as 2007 (in the Wisconsin Right to Life case) that “five Justices would soon declare the McCain-Feingold law unconstitutional.”  If astute observers (including Toobin) saw this three years before Citizens United was handed down, then why does Toobin think Stewart’s oral argument had any effect on anything?

And even if Stewart’s oral argument did make a difference in that litigation (which seems unlikely), wouldn’t it only be a matter of a short period of time before the Court found another case to use to do exactly what it did in Citizens United?  Failing to fend off the inevitable for a year or two is hardly changing the course of history.

Let me be clear:  I am not saying that oral argument never counts.  But it usually doesn’t, and in the rare case when it does, ordinarily the outside world can’t be sure of its effect.  I recognize that causation, or lack thereof, is impossible to prove in these kinds of instances.  But I think that if someone is asserting that oral argument changed the outcome or the scope of a particular case, and there is no offer of direct evidence of anything said by members of the Court or their staff in the days or weeks following the argument, notwithstanding obvious access to some “inside” sources, then he or she must do more than simply point out that the ultimate outcome surprised some early observers, and that there were some dramatic and excited moments at argument.

Here’s a good example:  Six months ago, the overwhelming majority of first-rate constitutional analysts expected that the Court would uphold Obamacare because the arguments under traditional modes of constitutional interpretation seem so one-sided.  And there is no real doubt that oral argument went poorly for Solicitor General Verrilli in March; there were clearly dramatic and difficult moments for him.  (I myself have written that he could, and should, have had much better answers to the predictable “slippery slope” questions thrown at him.)  But if the Court strikes down the mandate 5-4, we should not think that the result was caused by Verrilli’s subpar oral argument, and that if only he had been better in answering questions, the Court would then have come out the other way.  That explanation is possible, but the more likely explanation—again, assuming the Court does end up striking down Obamacare—is that five Justices had decided before argument that they didn’t think Congress had the power to create the mandate, and nothing at oral argument either way would have mattered to them.

Toobin may be correct in suggesting that Citizens United is not just a case, but rather a way of thinking about the world and the First Amendment (just as the term “PATRIOT Act” has symbolic import that goes beyond a single statute about counterterrorism).  As Toobin puts things, “[t]he Roberts Court . . . will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”

I can’t say if this is truly what Citizens United means, but if so, that legacy—much more than any personally interesting but to me largely speculative connection between an entertaining oral argument exchange and a decision by the Court to reshape the law—is the real human-interest story that is worth telling and worth hearing.  I look forward to future chapters in which Toobin conveys more of it.