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Jeffrey Toobin Rewrites Supreme Court History—And His Own

9:05 AM, May 17, 2012 • By ADAM J. WHITE
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In this week's New YorkerJeffrey Toobin criticizes the Supreme Court's handling of Citizens United v. FEC, which affirmed a corporation's First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office.

Toobin

According to Toobin's account—styled as a behind the scenes exposé—Chief Justice John Roberts orchestrated a win for Republican political fortunes in Citizens United, by hijacking a humdrum campaign finance case and turning it into a radical return to the Gilded Age. Toobin asserts that Roberts went so far as to go beyond the narrow "statutory" arguments offered by the corporation's own counsel, creating a First Amendment fight that even the corporation had wanted to avoid.

The article already has attracted much attention. Chief Justice Roberts's critics love it, of course, as does the larger chorus of critics opposed to corporate political speech. (The Atlantic calls Toobin's piece an "epic dissection.")

But beyond Toobin's base, his analysis is attracting skeptical criticism. SCOTUSblog's Tom Goldstein (no right-winger, for certain) and NRO's Ed Whelan already have poured cold water on Toobin, in terms of both his specific details and his broader narrative.

Whelan and Goldstein will be followed by others; Toobin practically demands this level of scrutiny, by front-loading his story with easily disprovable mischaracterizations of the case. Even a cursory review of the case's briefs, and contemporary news coverage, disproves Toobin's thesis that Citizens United was originally a mundane case, until Chief Justice Roberts twisted it to reach radical, partisan ends.

Take, for example, Toobin's opening lines (with added emphasis): 

When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. The issue before the Justices was a narrow one. The McCain-Feingold campaign-finance law prohibited corporations from running television commercials for or against Presidential candidates for thirty days before primaries. During that period, Citizens United, a nonprofit corporation, had wanted to run a documentary, as a cable video on demand, called “Hillary: The Movie,” which was critical of Hillary Clinton. The F.E.C. had prohibited the broadcast under McCain-Feingold, and Citizens United had challenged the decision. There did not seem to be a lot riding on the outcome.  After all, how many nonprofits wanted to run documentaries about Presidential candidates, using relatively obscure technologies, just before elections? 

Anyone familiar with the Citizens United litigation knows that it is preposterous to suggest that there was not "a lot riding on the outcome" when the case arrived at the Court. The First Amendment stakes were well-known, and much discussed, in the run-up to oral argument.  

On the eve of argument, the New York Times editorialized that the plaintiff corporation, Citizens United, was raising a "wide array" of "sweeping," "dangerous" claims: "If Citizens United prevails, it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions."

Similarly, Lyle Denniston—the widely respected, unofficial "dean" of the Supreme Court press corps—wrote before oral arguments that Citizens United was urging the Court to deliver "a sweeping rejection of congressional authority to regulate campaign spending by corporations."  

Toobin knows all of this, of course, because he made the very same points, on national television. The morning of oral argument, he appeared on CNN to discuss the case (transcript here; video here.):

Well, this is part of a struggle that's been going on at the Supreme Court and in Congress for a long time. Because on the one hand you have the desire to regulate campaign finance to bring some order and fairness to that system. On the other hand you have the risk of censorship. 

... I would guess, I think it's probably going to be a close case, but I think Citizens United has a pretty good case here and I think they may well win and the court will either say you have to come up with another way to regulate or this kind of regulation is just simply unconstitutional.

In short, when Citizens United v. FEC arrived at the Supreme Court, everyone—even Jeffrey Toobin—knew the constitutional stakes riding on the case. Toobin's new essay tries to erase all of that.  Why does he open his story with such a clumsy fictionalization of the case? To set Chief Justice Roberts up as the man responsible for turning Citizens United v. FEC into a seminal case.

Toobin's effort does not end with the initial scene setting. Proceeding to oral argument, Toobin suggests that Ted Olson, counsel for Citizens United, urged the Court to avoid the First Amendment question altogether:  

In response to Souter’s questions, Olson made a key point about how he thought the case should be resolved. In his view, the prohibitions in McCain-Feingold applied only to television commercials, not to ninety-minute documentaries. “This sort of communication was not something that Congress intended to prohibit,” Olson said. This view made the case even more straightforward. Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.

Again, to anyone familiar with the case, this description of Olson's argument does not pass the laugh test. Far from minimizing the case's constitutional stakes, Ted Olson and Citizens United made the First Amendment the centerpiece of their opening brief. In the very title of the lead argument, Olson's brief argued that McCain-Feingold's corporate campaign speech restriction "IS UNCONSTITUTIONAL AS APPLIED TO THE DISTRIBUTION OF CITIZENS UNITED’S DOCUMENTARY FILM THROUGH VIDEO ON DEMAND."  

And Olson's reply brief reiterated this point: "As applied to Video On Demand dissemination of Hillary: The Movie, BCRA’s criminalization of election-related debate plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech."

In the face of the briefs, Toobin attempts to advance his own narrative by selectively quoting from Olson's oral argument, and omitting Olson's comments that disprove Toobin's point. Take, for example, Toobin's account of an exchange between Olson and Justice Scalia, which ends with Toobin paraphrasing—but not quoting—Olson's final rejoinder:

Scalia was disappointed by the limited nature of Olson’s claim.  

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

That’s right, Olson responded.

But that's not right—that's not how Olson actually responded to Scalia's question.  

Olson did not argue that the Supreme Court could decide the case on strictly statutory grounds, avoiding the First Amendment question.  Rather, Olson argued that the First Amendment prohibits Congress from regulating Citizens United's political speech, and that one way to protect Citizens United's First Amendment right would be to re-interpret the statute to exempt Citizens United.  Toobin knows this, because Olson's explanation came immediately after the lines that Toobin quotes:

JUSTICE SCALIA:  So you're making a statutory argument now?

MR. OLSON:  I'm making a—

JUSTICE SCALIA:  You're saying that this isn't covered by it.

MR. OLSON:  Yes, I am making a statutory argument in the sense that you will construe the statute in the ways that doesn't violate the Constitution.  The Constitution, as—as the Court said in Wisconsin Right  to Life [v. FEC], gives ties to the speaker, errs on the side of  permitting the speech, not prohibiting the speech. And so all those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.

It is impossible to reconcile Olson's closing point with Toobin's description of Olson's argument: namely, that "Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case." Confronted with a choice between quoting Olson's full remarks, and advancing his own anti-Roberts narrative, Toobin chose the latter.

Having laid down this fictional foundation, Toobin goes on tell a story in which Chief Justice Roberts manipulated the post-argument opinion writing process to ensure that the Court would reach the case's First Amendment issues, and to tie that story to a longer history of the Court's Gilded Age favoritism toward corporate political power.

Color me skeptical. On the face of his article, Toobin demonstrates his persistent inability to fully and accurately describe the arguments that counsel and the justices made. And this is not limited to his aforementioned mischaracterization of the case. On the question of foreign involvement in U.S. politics, Toobin quotes Olson's argument that the "Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation." But Toobin neglects to quote Olson's subsequent concession, in the same argument, that "there is some compelling governmental interest because of foreign investment in corporations."

Not that all of Toobin's errors are seemingly intentional. In retracing the Court's history of corporate rights, he places great weight on the Chief Justice Waite's comments in Santa Clara County v. Southern Pacific Railroad (1886), yet his single quote from Chief Justice Waite is inaccurate. This particular error is utterly benign, but it reminds us that the author is not one to sweat details.

Given Toobin's inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin's description of the Justices' private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?  

Of course, it probably is folly to get bogged down in the details Toobin's breathless behind the scenes account; even taking his reporting at face value, there is simply nothing there to indicate that the justices' deliberations took an inappropriate turn, as Ed Whelan already has explained.

Still, what jumps out at me is the fact that someone at the Court—a clerk, or a justice—leaked the behind the scenes story to Toobin. When will clerks or justices leak the Court's much more recent deliberations in the Obamacare cases? And when Toobin or others report those leaks, will those reports be as accurate as Toobin's Citizens United story?

Adam J. White is a lawyer in Washington, D.C.

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