Jeffrey Toobin Rewrites Supreme Court History—And His Own

In this week's New Yorker, Jeffrey 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.

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."