Citizens United
( Mitch Boyer )
JAD: Our story today starts a couple years ago, in February 26, 2014. Washington DC.
[AMBI SLOWLY BUILDS IN, SUBWAY ANNOUNCEMENT, GARBLEY]
KAI NEWKIRK: You know, we got up very early that morning...this is February, I believe, so it was pretty cold. And I tell you, we were sitting there in sort of the cavernous, empty metro station rehearsing.
JAD: Kai says he and his friend Ryan Clayton went through what they were about to do over and over and over…
KAI NEWKIRK: it was very helpful to go through it and go through it and go through it...
JAD: Train comes, they hop on the train, take it a couple stops, get out, walk a couple of blocks, cross a few streets, and then walk up the marble steps to the Supreme Court.
KAI NEWKIRK: And then we have to wait in line… Get through security…
KAI NEWKIRK: um and you’re trying, you’re trying to just be cool.
JAD: Once they are inside they pretend not to know each other.
KAI NEWKIRK: And then you know you get brought into the chamber, my first time ever being inside...
JAD: They take their seats in the spectators’ section … look around…
KAI NEWKIRK: ...and it's such a grand, kind of intimidating space.
JAD: There are these red velvet curtains at the back … And if you look up…
KAI NEWKIRK: Marble carvings, on the walls and the ceiling…
JAD: And on the north and south walls, there are these huge portraits of these great lawmakers through history… There’s, Moses, Hammurabi, John Marshall and Mohammed
KAI NEWKIRK: So I was just taking all that in... Feeling, feeling the butterflies and I had a sense that it was very much doable...
KAI NEWKIRK: And then it’s just waiting.
JAD: Eventually the Court marshal comes out, says a few words.
KAI: About how it works when you are in there and not to speak and so on…
JAD: And then finally, the nine Justices enter the room… almost like priests on a cloud… their robes sort of whispering around them…
KAI NEWKIRK: At that point, I tried to meditate some, just be smart and stay cool.
JAD: And then Chief Justice John Roberts speaks.
SCOTUS AUDIO: ROBERTS: We will hear argument first this morning in case 12 11 84 Octane fitness v Icon health and fitness incorporated….
JAD: It was a patent case. The case itself isn’t that important…
SCOTUS AUDIO: Mr. Chief Justice and May it please the court ...
JAD: Because after the lawyers make their arguments…
SCOTUS AUDIO: If there are no further questions your honors I would urge you to affirm
JAD: The case is submitted…
KAI NEWKIRK: And then ...
SCOTUS AUDIO: ROBERTS: Thank you counsel.
KAI NEWKIRK: I saw Ryan make his motion. And I was just-- At that point just sort of like the practice and the sense of readiness and a little bit of sort of rock n roll Han Solo spirit, you know to just say it’s game time, we just gotta do this thing. And I stood and said:
KAI NEWKIRK ON VIDEO: I rise on behalf of the vast majority of the American people who believe that money is not speech...corporations are not people...
KAI NEWKIRK: ... and that our democracy should not be for sale to the highest bidder. Overturn Citizens United.
KAI NEWKIRK: I saw the security coming towards me from the left and like people getting up and….
KAI NEWKIRK ON VIDEO: [SORT OF INAUDIBLE Keep the cap in McCutcheon]
KAI NEWKIRK: them sort of crashing through the chairs
KAI NEWKIRK ON VIDEO: (crash sounds)
KAI NEWKIRK: tackled me from behind
KAI NEWKIRK ON VIDEO: Demand democracy (crash crash)
KAI NEWKIRK: You know, bearhugged me and pulled me back through those people…
JAD: Kai Newkirk was arrested. He spent the night in jail, and later pled guilty to three misdemeanor charges. But no one had noticed Ryan. No one had noticed that they were together, that Ryan had secretly videotaped the entire episode. When the day’s session was over and Ryan went home and posted the video onto YouTube. The story just went crazy.
NEWS: An outburst a protest
NEWS: a protester interrupting the court on Wednesday
NEWS: a protester objecting to the role of money in politics
JAD: Because almost no outsider had ever gotten a camera into the Court.
NEWS: This isn’t supposed to happen, it’s not suppose to happen Tony, obviously cameras are banned from the Court.
NEWS: Cameras have never been allowed inside the nation's highest court...
JAD: And second, the gall, the gall, of someone to walk into that esteemed chamber and do that to those esteemed Justices. And by the way, not just once.
JOHN ROBERTS: We'll hear argument first this morning in Case 13-1371...
KAI NEWKIRK: You know the Supreme Court action that we did in February 2014 was the first but not the last…
Scott A. Keller: Thank you, Mr. Chief Justice,...
KAI NEWKIRK: It was the 5th anniversary of Citizens United there were 7 people who did a disruption.
PROTEST AUDIO: I rise on behalf of our democracy… One person one vote!
JAD: This is from January 21, 2015.
PROTEST AUDIO
JA: Security again rounds up the protesters.
COURT AUDIO: Roberts: Our second order of business this morning... [laughter]
JAD: Chief Justice Roberts tries to laugh it off…
Protester: Money is not speech!
Roberts: Oh please.
JAD: In this same recording you can sort of hear Justice Ginsburg trying to figure out how like how many --
RBG: How many of them--
JAD: How many protesters are in the room?
ROBERTS: We have another one, a couple of them over there.
[PROTEST AUDIO]
KAI NEWKIRK: Over the next year or so we did more actions
JAD: The next one on April 1, 2015.
PROTESTER: We rise to demand democracy one person one vote.
THOMAS: So…
SCALIA: Oh Lord…
THOMAS: Yeah they’ll try…
SCALIA: see if there’s another one
JAD: Justices Scalia and Thomas murmuring to each other.
ROBERTS: I didn’t think the bankruptcy cases would attract such attention
PROTESTER: We rise to say money is not speech
ROBERTS: Oh please
PROTESTER: One Person One Vote
THOMAS: It’s the same guy from last time
JAD: Justice Thomas say I think that it’s the same dude from the last time
PROTESTER: Justices is it not your duty to protect the right to self government…
SCALIA: they should give them stiff sentences that’s what they should do
THOMAS: do what?
SCALIA: give them stiff stiff sentences
JAD: It’s kind of hard to hear with all the yelling, but you can sort of hear Justice Scalia lean over to Thomas and say we should throw these people in jail basically….
ROBERTS: Anyone else interested in talking will be admonished that it’s within the authority of this court to punish such disturbances by criminal contempt
PROTESTER: we who believe in freedom --
ROBERTS: I’m Sorry!
PROTESTER: we who believe in freedom shall not rest
JAD: So here’s why we started this story this way… Over and over again the protestors call out one case. It’s one of the most controversial cases in American history. It was decided on January 21, 2010, and to a good chunk of America, that was the day that corporations took control of American democracy.
CITIZENS UNITED PROTEST TAPE SONG: Money ain’t speech, corporations aren’t people. Money ain’t speech, corporations aren’t people.
OLBERMANN: It is the dark ages. It is our Dred Scott.
PROTEST TAPE: Democracy is free, people’s voices will be heard
OLBERMANN: I would suggest a revolution, but a revolution against the corporations, the corporations that make all the guns and the bullets?
HILLARY CLINTON: Get rid of Citizens United and its pernicious effects on our electoral system.
BERNIE SANDERS: One of the worst Supreme Court decisions ever made.
JOHN MCCAIN: The most misguided, naive, egregious decision of the United States Supreme Court, I think in the 21st Century.
JAD: So this season of More Perfect we are rethinking a lot of the most hated Supreme Court decisions and this one, Citizens United, is definitely that.
CITIZENS UNITED PROTEST TAPE: Should Citizens united be overturned? Yeah!!
JAD: It is widely loathed across the political spectrum. We got curious, why? Why is it hated so much? What exactly is this case, and why was it decided the way it was decided? And it turns out that last question gives you a unique window into not just how the Supreme Court works, but inside the mind of arguably the most powerful man in America.
[OYEZ OYEZ OYEZ]
JAD: Ok, so the story of Citizens United begins with a landmark film.
FAHRENHEIT 9/11 COMMERCIAL AUDIO
FAHRENHEIT 9/11: BUSH: This is an impressive crowd. The haves. And the have mores. Some people call you the elite I call you my base…
JAD: It’s summer of 2004… commercials for “Fahrenheit 9/11” are all over the place.
FAHRENHEIT 9/11 COMMERCIAL AUDIO
And if you’ve seen the documentary you know that it is very critical of then President George W. Bush for leading America into a war on false intelligence. And the commercials…
MICHAEL BOOS: When you looked at them they came across as highly political and highly effective ads...
JAD: This is Michael Boos. He’s one of the three B’s [RHYMES WITH GOES OR NOSE] important to this story. Now at the time he was seeing these ads to his eye they came across as especially political, because at the time….
KERRY POLITICAL AD: As President I’ll set a few clear national priorities for America….
BUSH POLITICAL AD: Over the past three years, Americans have faced many serious challenges…
JAD: … that summer George W. Bush was in a tight race with the Democratic nominee, John Kerry.
POLITiCAL: In which direction would John Kerry lead?
JA: And actual political ads
POLITICAL AD: George Bush is misleading America…
JA: were running wall to wall.
POLITICAL AD: John Kerry has repeatedly opposed weapons vital to winning the war on terror.
JAD: And it is kind of true… I mean, ads for Fahrenheit 9/11…
FAHRENHEIT 9/11: BUSH: I call upon all nations… to do everything they can..
JAD: I mean, they did kind of….. They kind of blended right in…
BOSSIE: I saw the impact of Fahrenheit 9/11 in late July…
JAD: This is David Bossie. [SFX] B number two! In an interview he gave to CSPAN.
BOSSIE: I decided over the couple of weeks that Fahrenheit was out there that it just was having a lot bigger impact than even I wanted to admit.
JAD: To this day, “Fahrenheit 9/11” it is the top grossing documentary of all time. In that summer of 2004, when the film was out, Boos and Bossie were like, ugh, George Bush is down in the polls, maybe this film has something to do with it. And so they decided….
MICHAEL BOOS: We ought to produce a documentary film that essentially counters Fahrenheit 9/11…
JAD: The “we” he is talking about is the conservative nonprofit he and Bossie run. Called, surprise surprise Citizens United. David Bossie, B2, is the Chairman and President of Citizens United. Michael Boos, B1
BOOS: I’m the executive is the Vice President and General Counsel.
JAD: And just for context, the guy who started it Citizens United is behind one of the most devastating political ads of all time.
WILLIE HORTON AD: Bush and Dukakis on crime. Bush supports the death penalty for first degree murderers. Dukakis not only opposes the death penalty, he allowed first degree murderers to have weekend passes from prison.
JAD: The Willie Horton ad in 1988 that pretty much tanked Michael Dukakis’s presidential campaign… Anyhow… after Boos and Bossie saw how successful “Fahrenheit 9/11” was, and, importantly, how much precious airtime the movie’s ads were getting, they thought…
MUSIC
JAD: LET’S DO THIS
BOSSIE: We went out and we found the best filmmakers in Hollywood that could do this…
JAD: Let’s make a movie.
MUSIC
MICHAEL BOOS: We produced it. It was called “Celsius 41.11,” the temperature at which the brain begins to die...
JAD: -- you know, liberal brains seduced by Michael Moore’s movie…
MICHAEL BOOS: and then we wanted to run television ads to promote that…
BOOS: But -- we ran into that problem.
JAD: A big fat problem…
[FEC SONG!]
JAD: The F.E.C.
[FEC SONG!]
JAD: The Federal Election Commission is, which, by the way, was created in 1974 after
MUSIC
JAD: After Watergate, where basically
NIXON: People have got to know whether or not their President is a crook.
JAD: You had campaign money
NIXON: Well. I am not a crook!
JAD: Funding a crime. OK, so the F.E.C. came about post-Watergate to basically regulate money in elections. To keep money from corrupting politics.
BOOS: And um…
JAD: When Boos and Bossie were like, we want to run these ads, the FEC was like
BOOS: look… your ads do not qualify…
JAD: Can’t do it. Because even though you are a non-profit… You can’t use your corporate piggy bank - i.e., your treasury - to put ads on the air. Because remember that law that we have?
MEET THE PRESS: John McCain won his battle for campaign finance reform…
BILL MOYERS: The 2002 Bipartisan Campaign Reform Act, also known as McCain-Feingold, restricts the use of corporate money directly for or against candidates.
JAD: Remember that law? The F.E.C. said, if you ran ads you would be violating that law, to which, Bossie, B2, was like, hey
BOSSIE: Hey, wait a minute.
JAD: What about Michael Moore?
BOSSIE: This guy is running TV commercials which in my opinion were a lot better than John Kerry’s commercials, trying to make George Bush look bad.
JAD: Why the F…
[EC]
JAD: does he get to run the ads and we don't??? And the FEC’s response was like he’s media. He can run the ads on TV because he gets a media exemption. And you… You are not media, y’all are corporate
MICHAEL BOOS: So at that point in time we decided that we would get into the documentary filmmaking business….
JAD: So... Citizens United produces “Broken Promises, the United Nations at 60.”
BROKEN PROMISES TRAILER AUDIO: One of the things that is very difficult for outsiders to understand about the UN is how ill prepared and untrained most its staff are…
JAD: 2006 …“Border War: The Battle Over Illegal Immigration.”
BORDER WAR TRAILER AUDIO: We never really crossed the border the border crossed us. Viva la trabajadores!
JAD: That same year…
ACLU TRAILER AUDIO: The ACLU has been more concerned about protecting pedophiles than protecting innocent children.
JAD: They produce “ACLU: At War With America.”
MICHAEL BOOS: And by 2008 we had a substantial history of making documentary films that we had made over that period of time...several had won awards…
JAD: Anyhow, fast forward to January of 2008, the United States is heading into another presidential election. And the two candidates on the democratic side…
HILLARY AUDIO: I’m Hillary Clinton and I approve this message.
BARACK AUDIO: I’m Barack Obama and I approve this message.
JAD: Were of course Hillary Clinton and Barack Obama. And Citizens United Productions -- that’s their non-profit’s movie production wing -- made a new film
HILLARY TRAILER AUDIO: Vindictive, venal, sneaky, ideological... intolerant, liar is a good one...
JAD: Super subtle... It’s called “Hillary: The Movie”
HILLARY TRAILER AUDIO: She is steeped in controversy, steeped in sleaze.
JAD: And… guess what
BOOS: We faced the same obstacle that we faced in 2004.
JAD: The FEC basically told Boos and Bossie:
BOSSIE: You can make the movie. You just can't let anyone know it exists. I was forbidden to advertise.
JAD: Again… this was because of McCain-Feingold… advertisements paid for with corporate money couldn't go on TV or on the radio 30 to 60 days before an election or primary.
BOSSIE: People don’t understand. McCain-Feingold criminalized political speech. My lawyers told me I would be indicted and put in prison for five years per count…meaning every time they found a violation I could be put in prison.
JAD: And so…
BOSSIE: So we decided to not let the FEC, the Federal Election Commission come for us. We actually sued them.
JIM BOPP: We sue. Yeah, we sue.
JAD: This is Jim Bopp. [SPFX] B3. He’s a Indiana-based campaign finance lawyer
JOHN ROBERTS: Mr. Bopp?
BOPP: Thank you, Mr. Chief Justice, and may it please the Court...
JAD: So the three Bs take their “Hillary: The Movie” case to federal court
MICHAEL BOOS: We lost.
JAD: They lost. They appeal directly to the Supreme Court… and voila….
SCOTUS AUDIO: ROBERTS: We’ll hear argument today in 08 02 05 Citizens United v. the Federal Election Commission, Mr. Olson.
MARCIA COYLE: Right, So we’re in the courtroom now
MARCIA COYLE: right and
SCOTUS AUDIO: OLSON: Participation in the political process
MARCIA COYLE: you know, it’s an unsurprising argument
JAD: This is journalist and author, Marcia Coyle. She says, you had the lawyer for the B’s…
COYLE: Ted Olson taking a very strong position
JAD: Basically saying, look, by not allowing us to run our ads for “Hillary the Movie” ...
COYLE: It’s wrong and you are violating our First Amendment rights.
OLSEN: In the case that you consider today, it is a felony for a small, nonprofit corporation to offer interested viewers a 90-minute political documentary
JAD: Ahh, one more time.
OLSEN: a 90 minute documentary
JAD: Again
OLSEN: this 90 minute documentary
JAD: Again
OLSEN: a 90 minute documentary
OLSEN: documentary
OLSEN: a 90 minute movie
OLSEN: a 90 minute documentary
OLSEN: this 90 minute documentary
OLSEN: a 90 minute documentary
OLSEN: about a candidate for the nation’s highest office
OLSEN: a 90 minute documentary
OLSEN: this 90 minute documentary
JAD: Ok, so you know how like when you hear a certain word said over and over again it just turns into mush…
OLSEN: a 90 minute documentary
OLSEN: indeed, this documentary
JAD: I mean, this happens all the time when you listen to Supreme Court oral arguments…
OLSEN: Documentary…
JAD: But particularly in this case, in his opening statement Ted Olson said that word
OLSON: Documentary
JAD: So many times it just started to sound so weird… but the point he was trying to make by saying it again and again and again,
OLSON: The documentary
JAD: Is that Citizens United was making a documentary.
OLSON: That discusses things that are important to the public...
JAD: They were not, quote:
COYLE: Electioneering…
BREYER: Electioneering
JAD: Electioneering…
SOUTER: Electioneering…
BREYER: Electioneering
COYLE. Ok.
SFX: ELECTIONEERING
JAD: That’s another word you hear over and over again and you’re just like, wow, what a weird word… but what it means is like, campaign advocacy…and there are certain words, 8 of them actually, words and phrases like, “vote for,” “elect,” “support,” “cast your ballot for,” “vote against,” “defeat,” “reject.” Those words, or the functional equivalent of those words, according to the court, suddenly make something advocacy, electioneering, and therefore regulatable.
COYLE: But Citizens United said look, this is a movie about Hillary Clinton, we don’t say vote or don’t vote for her. And you know...
OLSON: Its film may be shown in theaters, sold on DVDs...
COYLE: We’re trying to disseminate the movie through an independent buyer who will then offer it say through HBO….
JAD: We’re just making a movie.
OLSEN: Indeed, this documentary
JAD: Yes
OLSEN: is the very definition of robust, uninhibited debate about a subject of intense
political interest that the First Amendment is there to guarantee.
SOUTER: Mr. Olson if the film…
JAD: But then, liberal justices like David Souter were like, come on….really?
SOUTER: See I mean, I've got the government's brief open at -- open at pages 18 and 19 with the quotations: She will lie about anything. She's deceitful. She's ruthless, cunning, dishonest, do anything for power, will 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.
SFX
SOUTER: This is a don’t vote for Jones.
OLSON: This is a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena.
JAD: So they go back and forth for a while. Was Citizens United just making an elaborate campaign ad but dressing it up as a doc or was it actually a doc?
ROBERTS: What -- what is the distinction between the 10-second commercial and, say, the 90-minute infomercial?
JAD: Like, how can you tell? Is it about length? Is it about who’s doing the speaking? Blah blah blah… As Marcia Coyle said, this part of the argument…
COYLE: was unsurprising…
SCOTUS AUDIO: ROBERTS: Thank you counsel.
COYLE: Then…
SCOTUS AUDIO: ROBERTS: Mr Stewart…
MARCIA COYLE: the government got up…
SCOTUS AUDIO: STEWART: Mr Chief justice and may it please the court
MARCIA COYLE: And this is really where things start to turn...
JAD: So the government's lawyer, Malcolm Stewart gets up there and he says these ads for this movie and this movie are clearly electioneering, and come on…
SCOTUS AUDIO: STEWART: The court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate…..
JAD: That’s a very complicated way of saying, if you watch the damn movie you just can tell, it looks like an ad, it smells like an ad, it’s an ad…
SCOTUS AUDIO: STEWART: It’s certainly been a recurring phenomenon in the past that candidates would air for instance thirty minute infomercials.
JAD: So that’s all fine and good, but then…
SCOTUS AUDIO: ROBERTS: So if Walmart airs an advertisement that says we have candidate Action Figures for sale come buy them, that counts as an electioneering communication?
SCOTUS AUDIO: STEWART: If it’s aired in the right place at the right time that would be covered.
JAD: Chief Justice Roberts and also Alito
ALITO: Do you think the Constitution required Congress to draw the line where it did?
JAD: They started testing Malcolm Stewart…
MARCIA COYLE: They’re probing how far the government can go
ALITO: What’s your answer to Mr. Olson’s point?
JAD: Like, if the government is allowed to say that thing you are doing is an ad therefore it should be taken off the air at certain times, well, where’s the limit to that? Like, what if the ad, as the government defines it, is in a DVD, or a book, can it then just yank those away, too?
ALITO: Would the Constitution permit the restriction of all of those as well?
SCOTUS: Malcolm L. Stewart: --I think the -- the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise….
JAD: And it’s here where you almost hear the conservative justices being like, whoa whoa whoa whoa, did he just say what I think he say? Did he just say that?
SCOTUS AUDIO: ALITO: That’s pretty incredible. You think if a book was published a campaign biography that was the functional equivalent of express advocacy - that could be banned?
STEWART: I’m not saying it could be banned, I’m saying that congress could prohibit the use of corporate treasury funds and could require a corporate--
SCOTUS AUDIO: ROBERTS: If it has one name, one use of the candidate's name, it would be covered? Correct?
SCOTUS AUDIO: STEWART: That’s correct.
SCOTUS AUDIO: ROBERTS: If it’s a 500 page book and at the end it says and so Vote for X - the government could ban that?
SCOTUS AUDIO: STEWART: Well if it says Vote for X then it would be express advocacy and it would be covered by the preexisting federal election campaign act provisions
JAD: At this point Malcolm Stewart tries to wriggle out of this trap.
STEWART: If it’s a book and it--
JAD: He brings in some stuff about the First Amendment, about media protections
STEWART: ….media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The -- the other two things--
KENNEDY: Well, suppose it were an advocacy organization that had a book.
JAD: But Justice Kennedy pins him back down
KENNEDY: Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/30-day period?
STEWART: --If the book contained the functional equivalent of express advocacy…
JAD: What happens is they eventually get him to say…
SCOTUS AUDIO: ROBERTS: If it's a book and at the end it says vote for X
SCOTUS AUDIO: STEWART: Yes our position would be that the corporation could be required to use PAC funds rather than general treasury funds
SCOTUS AUDIO: ROBERTS: And if they didn’t you could ban it?
SCOTUS AUDIO: STEWART: If they didn’t we could prohibit the publication of the book
MARCIA COYLE: You mean the government can ban books?
BOPP: Being in the courtroom and hearing that answer, well it was stunned silence in the audience
JAD: That’s Jim Bopp. B3
TOOBIN: The idea that anything the government could do could amount to banning a book, you know sent a shockwave through the courtroom…
JAD: And that’s Jeffrey Toobin from the The New Yorker. He was also in the audience that day.
JIM BOPP: This deep dark kind of secret was now exposed to the light of day to the public that they really were in the book banning, book burning, business.
TOOBIN: The question of the book underlines how difficult it is when the government gets into regulating political speech.
JAD: Now, Malcolm Stewart kept protesting, like, no no no, you are misunderstanding…
SCOTUS AUDIO: STEWART: I’m not saying it could be banned, I’m saying that Congress could prohibit the use of corporate treasury funds…
JAD: This is not about banning political speech… it’s about regulating the money used to make that speech. Because if we don't sometimes do that, some voices will be way too loud…
COYLE: Well ok that’s a you know that’s a fine distinction in the minds of the average person….
JAD: And it’s a distinction, she says, that just got lost that day…
STEWART: Because Congress--
SCOTUS AUDIO: ROBERTS: Well but if we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it
SCOTUS AUDIO: STEWART: I think the court has already held in, both in Austin...and in McConnell that Congress can…
SFX
JAD: Coming up…. We go behind the scenes, into the minds actually, of the Justices as they deliberate backstage about what to do next… And things get kind of weird.
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NPR ATC AUDIO: In the Supreme Court today a debate about the movies, sort of. Producers of a withering 90 minute movie critique of Hillary Clinton argued that part of the McCain-Feingold campaign finance law is unconstitutional…
JAD: Alright, so after oral arguments wrapped up… the Justices retreated to what is perhaps the most secret place in the known universe.
C-SPAN: In the most private and perhaps important place inside the Supreme Court...
JAD: Or at least inside the court…
C-SPAN: Nine justices and only them, meet together around a table in the justices’ conference room. They discuss the cases heard at oral argument and begin the process of reaching a decision of the court…
JAD: This is a place where cameras will never go…
C-SPAN RBG: No one can enter the room…
JAD: Except for CSPAN. Once.
C-SPAN: We return now to C-SPAN’s feature documentary: The Supreme Court
JAD: Once upon a time, C SPAN, those bastards, were able get into this room and film the table, and the chair. It was riveting. No, I mean I’m actually quite jealous because they didn't let us do that, they didn’t let us see the special room or speak to the justices, so C-SPAN, yeah, they have some kind of deal with the devil. Anyhow, the point is we don’t know what happened in that room on that day, but we can piece together a couple of things. And we can imagine the rest. I mean we know that they went in, Clarence Thomas put on some tunes. RBG was like, wow, after that book thing, I need a drink. Actually we don’t know either of those two things happened, but it makes sense to me that Clarence Thomas would like the Doobie’s. That just feels right.
MUSIC
JAD: But what we DO know that the justices sat down in the usual order that they sit.
C-SPAN ROBERTS: We sit at the conference table, in the same places every day.
JAD: Chief Justice John Roberts gets things going with some discussion.
C-SPAN ROBERTS: I initiate the discussion…
JAD: Cause he always does.
C-SPAN ROBERTS: For an argued case, I’ll say this case is about this, the arguments are about so and so, and I think we should reverse or affirm…
JAD: And so there was some conversation. And then…. Because again this is standard, the Chief Justice called for a vote. And this is the part we care about. He presumably asked his colleagues, ok who here thinks that Citizens United has a case? Now, we know that the four liberal justices Stevens, Ginsburg, Breyer, Souter, were like, no.They do not have a case.
All that Citizens United is doing is making a campaign ad, this is electioneering, they’re pretending it’s a doc but really it’s not. They should be regulated.
JAD: On the other side, we know that the four conservatives Scalia, Thomas, Alito, Roberts, were like… Yeah. They got a case. Citizens United’s First Amendment rights are being pinched. And so, you had a split, as you often do on this court. Four liberals. Four conservatives. But there are nine justices. So as always, all attention turned to the man in the middle.
NEWS: Justice Anthony Kennedy.
NEWS: Justice Kennedy is 80. He’s been on the court for almost 30 years. He’s often the swing vote making his opinion critical.
NEWS: He is considered the court’s pivotal swing vote.
NEWS: In a court that is basically split down the middle, 4-4. Kennedy is the ultimate swing vote. The one ring to rule them all.
MUSIC
JAD: Alright let’s just talk about Justice Kennedy for a second. He has been the swing vote on this court so many times that he is often called
NEWS TAPE: The most powerful person in America.
NEWS TAPE: The most powerful man in the country by many stretches.
JAD: Because very often his vote is the only vote that matters. You could argue that this dude, this one dude has determined more about your life as an American than almost any other single guy
MUSIC
JAD: But from the outside -- for people who don’t really know much about the court, i.e., me, you, well maybe not you, but me -- it can be really hard to predict what he is going to do on any given case, which way he is going to swing
MUSIC:
JAD: For example, on a big voting rights case, he sides with the conservatives.
OYEZ SHELBY COUNTY: KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance.
JAD: But on eminent domain - he sides with the liberals
KENNEDY: It does seem ironic that 100 percent goes to the developer and not to the property owner.
JAD: Now, on gun rights, the Heller case, which we talked about, he swung conservative.
Kennedy: In my view it’s a general right to bear arms quite without reference to the militia either way.
JAD: But on environmental protection, he goes liberal.
KENNEDY: the greater the harm the greater the risk.
JAD: Class actions he goes conservative...
KENNEDY: It's not clear to me: What is the unlawful policy
JAD: Gay marriage he goes liberal.
KENNEDY: Same sex couples may exercise the fundamental right to marry in all states, no longer may this liberty be denied to them.
JAD: He’s a swinger!
MUSIC
JAD: So… when the Chief Justice went around the room and got to Kennedy, and he’s like, all right Kennedy, what’s it going to be this time? From the outside it was anyone’s guess. But as I mentioned one of the sort of cool things about the Citizens United case is it gives you a window into the mind of this very powerful, very mysterious man. So before he answers, let’s go into his mind.
[WOOSH]
[JEFFERSON AIRPLANE SONG]
KOZINSKY: I was born in Romania. Bucharest, Bucharest, Romania. In the days of Communism.
JAD: You may wonder why is there a eastern European man inside the brain of Justice Kennedy? That will make sense in just a minute. For now, all you need to know is that this is Alex Kozinski. He’s an influential judge who sits on the 9th Circuit in California.
KOZINSKI: Well my father was actually a party member. He was a member of the party before the war.
JAD: This is World War II.
KOZINSKI: He truly believed in communism and thought it was a great system and revered it.
JAD: But Alex remembers a moment when he was at his dad’s office…
KOZINSKI: I guess I was about seven years old, seven or eight or or something, and my father wasn't there.
JAD: …but a couple of other communist officials were. And as they are standing there Alex picks up a newspaper starts reading it…
KOZINSKI: it was a newspaper called “Free Romania.” And so I read “Free Romania” and I sort of found it to be funny, I guess, I said well I don't know why they call “Free Romania” because there are so many people in prison.
JAD: He just thought he was making a joke…
KOZINSKI: But apparently this got my father into very serious trouble.
JAD: The officials essentially threatened his dad because of this joke.
KOZINSKI: The question was whether they were teaching me disloyal things of home. Eventually they cleared him but it was touch and go. So after that my father had this signal, he says if you are ever in public with me and you say something and you hear me pinching my nose and sniffing, you just stop talking. Whatever it is you are saying, you don't give an explanation, you don't continue. Just stop talking.
JAD: Years later, Alex Kozinski would leave Romania and leave communism behind, come to California, become a lawyer…and then a clerk…
KOZINSKI: A clerk in Sacramento, for Anthony Kennedy, who was then a new judge on the 9th Circuit.
JAD: And he said, he told Kennedy this story.
KOZINSKI: Oh yes
JAD: And they talked about what it was like to live in a place where you couldn’t speak your mind…
KOZINSKI:Oh sure. Oh sure, of course.
JAD: Now who knows what exact effect this had on Anthony Kennedy’s mind, but we know that story is in there.
CUB SCOUT AUDIO
Mixed in with all the Cub Scout oaths of his youth and the sites and smells of Sacramento, California where he grew up...and of course mixed in with all of the Catholic church services and stuff from summers spent in Austria teaching, but we know that story was in there. And the reason why I point it out is that we also know that at a certain point growing up, Anthony Kennedy read a book, that really lodged in his head.
KENNEDY: 1984. One of the most important works ever written.
JAD: 1984 is of course the dystopian novel by George Orwell. Kennedy talks about it all the time in speeches.
KENNEDY: In 1984 the dictatorship was always surveilling you
JAD: Trying to control your thoughts.
1984 MOVIE CLIP: You’re a thought criminal.
KENNEDY: And 1984 has one of the most brilliant scenes in literature.
1984 MOVIE CLIP: [yelling]
KENNEDY: The protagonist is being tortured.
1984 MOVIE CLIP: Do you remember writing in your diary ‘freedom is the freedom to say 2+2=4’?
KENNEDY: They want him to say that 2 and 2 is 5.
1984 MOVIE CLIP: [yelling]
KENNEDY: And finally he can’t stand the torture anymore
1984 MOVIE CLIP: Five. Anything you like. Will you please stop it.
KENNEDY: And he says, ‘ok, 2 and 2 is 5.’
1984 MOVIE CLIP: Stop the pain!
KENNEDY: But the torture continues.
1984 MOVIE CLIP: [yelling]
KENNEDY: And he says, why are you continuing? And he says the torture continues not until you just say it but you believe it.
1984 MOVIE CLIP: I wish I could.
1984 MOVIE CLIP: Which do you wish? That you could persuade me that you see five or really to see them?
1984 MOVIE CLIP: Really to see them.
1984 MOVIE CLIP: Better.
KENNEDY: This is a powerful reminder that governments want to plan your destiny. They want to plan what you think. And this must never happen.
JAD: So clearly, inside Anthony Kennedy’s mind...and maybe this is as close to an ideology that he has, he’s often talked about as having very little discernible ideology, well maybe this is it: inside his mind, there is a fear, a primal fear of the government getting too close… of it reaching its authoritarian tentacles into our lives and in our minds and our bodies.
KENNEDY: The framers had an idea which is central to western thought.
JAD: This is how he put it at his Supreme Court confirmation hearing in 1987.
KENNEDY: And that is that there is a zone of liberty. A zone of protection. A line that’s drawn where the individual can tell the government beyond this line you may not go.
JAD: And so… to go back to that super secret conference room…
SFX
MUSIC
JAD: When Chief Justice Roberts asked Justice Kennedy, alright Kennedy which way you gonna swing? I imagine what he said, emphasis on the word imagine is, alright Mr. Chief… I know you think I am a swinger, I know everyone else thinks I am a swinger, but on this issue, I do not swing. Not only do I think that Citizens United has a case, but I think that the campaign finance law that would limit their speech should BURN MOTHERFUCKER BURN!!!!
KENNEDY: The government of the United States stood in front of our court and said that it was lawful to ban a book. That can’t be right.
MUSIC
JAD: Now…We know that two things happened after Kennedy sort of gave his answer and said let’s go big, let’s tear it down. We know that the conservatives were like, oh, I like where you’re going with this, and they started to gravitate to his side. We also know that David Souter, he was the justice in court
SOUTER: She’d lie about anything, she’s deceitful, she’s ruthless, cunning, dishonest. I
mean this sounds to me like campaign advocacy
JAD: Who was basically accusing Citizens United of trying to pretend they weren’t playing politics when really they were… we know that Justice Souter ot really pissed… Because if we go into Souter’s mind, into his room within a room
[WHOOSH]
JAD: The view is VERY different.
JAD: David Souter is a New Englander. He’s quiet and bookish, spends long afternoons reading, walking through the silent, hemlock forest. There’s a story that Souter’s New Hampshire home was stacked with so many books that he actually needed a new foundation. Which is to say his reaction here... was out of character. By all accounts he was not happy. Because Kennedy’s whole thing - that liberty is the law and nothing should compromise it- that for Souter, set off alarm bells.
Souter PBS: Because if I exercise my liberty to the greatest possible extent, I can suppress the rights of a lot of people.
JAD: That’s Souter uh giving a talk in 2012. And what he means is that liberty and equality have to be in balance
Souter PBS: The both can’t win all the way all the time.
JAD: And if corporate money pours into elections, that’s a megaphone to the richest people in society…
SOUTER: There has got to be the possibility of a limitation on corporations so they do not drown out other speech.
MUSIC:
JAD: Now, we can’t know for sure what David Souter was thinking about at this moment, but I imagine him thinking forward to everything that was about to happen…
NEWS TAPE MONTAGE:
An explosion of political campaign donations...
The Koch brothers…
The Koch brothers...
The Koch brothers...
These two brothers are trying to buy America…
More billionaires are backing Hillary Clinton over Donald Trump
Essentially super PACs are allowed to give unlimited funds…
Hillary Clinton gaining support from the wealthy
A secretive billionaire hedge fund tycoon is credited by many with playing an instrumental role in Donald Trump’s election...
SFX
JAD: Whatever he was actually thinking in that moment… we know that after Kennedy made his stand that let’s go big. Justice Souter
COYLE: Justice Souter wrote a very very strong draft dissent….
TOOBIN: A real bridge burning dissent
ROSEN: It’s… explosive….
JAD: Marcia Coyle, Jeff Toobin, Jeffrey Rosen of the National Constitution Center
TOOBIN: he said that Kennedy’s opinion is really an illegitimate use of the court's power
COYLE: That the way the Court was proceeding was wrong…
ROSEN: Souter accuses the Court of judicial activism…
TOOBIN: Of overreaching… of taking a narrow case...
JAD: A teeny little case about one teeny little film…
TOOBIN: And then using it illegitimately as a hobby horse to really rewrite the laws of campaign finance regulation.
JAD: He argued that this kind of move essentially makes them, the court, look like a bunch of political hacks.
TOOBIN: It’s questioning the integrity of the court itself.
MUSIC
JAD: Now, unfortunately, we can't read that draft dissent that Souter wrote because his papers won't be public until 50 years after his death. All we know is that he most certainly sent a draft around to the other 8 Justices.
COYLE: And then what I’ve been told is, Justice Souter went to Chief Justice Roberts and said basically, look you, know if, we do this now, we will look bad.
JAD: YOUR court. The ROBERTS court.
COYLE: will look bad. Someone described his argument as, there are a few institutional hot buttons, that you press and the court stops and thinks and Justice Souter was pressing one of those hot buttons.
JAD: Apparently saying to a chief justice that your court is going to look bad is like the Supreme Court equivalent of going nuclear. In the meantime, while this is happening, you have the 3 Bs, Boos, Bossie, Bopp…
BOSE BOSSIE BOP BOP BOP BOP
JAD: Just dying for an outcome…. And apparently every day…
BOOS: We would go down to the court to see if they were going to issue a decision in our case that day. And of course, each day, no decision, no decision.
COYLE: Yeah and it’s now the end of June
BOOS: So now we're down to the last day of the court
JAD: 10 AM. June 29. We are back in the Court
COYLE: Before the justices come on the bench, the clerk of the court walks into the courtroom and goes up to Ted Olson
JAD: He, if you recall, is the lawyer for the three B’s.
COYLE: and says, 'I'm going to talk to you. Something ...later… something unusual is going to happen.' And Ted Olson, he told me later is first thought was, 'Uh oh, did I do something wrong?' [laughs]
JAD: The Marshall calls order…
SCOTUS MARSHALL: The Honorable The Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, Oyez, Oyez.
JAD: The Chief opens the session. And then…
KENNEDY: in 1964 Congress enacted the Civil Rights Act
JAD: Kennedy reads an opinion… in a different case. And then RBG reads a dissent.
RBG: But they had no vested right to promotion
JAD: In a different casse. And then Scalia gets up there…
SCALIA: The bark of state law remains, but its bite does not
JAD: With an opinion in a different case….
SCALIA: This is a strange result
JAD: But finally Roberts comes back in…
COYLE: And so the very last thing the Chief Justice says before he you know ends the term
ROBERTS: Case number 08205, Citizens United v. The Federal Election Commission…
COYLE: is there will be reargument in Citizens United.
ROBERTS: ...is set for reargument later this term….
COYLE: Boom.
JAD: Chief Justice Roberts basically says, we are not going to make up our mind today. We are going to come back and talk about this again. And we are going to debate it on Kennedy’s terms. Is the campaign finance law, McCain-Feingold, an infringement of free speech? And then after he says that, this is what happens next.
ROBERTS: And now we note with sadness that this is the last session in which our friend and colleague Justice David Souter will be on the bench with us.
JAD: Souter’s out.
ROBERS: We wish him the best in his well deserved retirement. On this occasion we have sent Justice Souter a letter that I will now read. It’s dated today. Dear David, we have all felt a profound sense of loss since the announcement of your decision to retire.
JAD: Eventually he quotes New England poet, Robert Frost…
ROBERTS: We understand your desire to trade white marble for White Mountains, and return to your land "of easy wind and downy flake." Though you will not be among us in our daily labors--
JAD: After he finishes, Justice Souter’s turn:
SOUTER: I have written the following reply. Dear colleagues: [LAUGHTER] Your generous letter has touched me more than I can say, and I will only try to leave you with some sense of what our common service has meant to me.
JAD: He also quotes Robert Frost
SOUTER: You quoted the poet, and I will, too, in words that set out the ideal of the life engaged, ". . . where love and need are one. . . ." That phrase accounts for the finest moments of my life on this Court, as we have agreed or contended with each other over those things that matter to decent people in a civil society. For nineteen terms, I have lived that life with you, all of us sharing our own best years with one another, working side by side as fellow servants and as friends. I will not sit with you at our bench again after the Court rises for the Summer this time, but neither will I retire from our friendship, which has held us together despite the pull of the most passionate dissent. It has made the work lighter through all my tenure here, and for as long as I live, I will be thankful for it, and be under a very grateful obligation to each one of you. Yours affectionately, David”
MUSIC
JAD: Alright, let’s be real, I mean we cannot say for certain why Justice Souter retired at that moment…
ROSEN: Justice Souter had said for a long time that he didn't like D.C., that he wanted to have time to hike while he was still vigorous enough to do it.
JAD: We also will probably never know exactly why Roberts held the case over for reargument. What we do know is in holding the case over, that meant Souter’s inflammatory, bridge-burning dissent would never be published. The Roberts Court… got to save face….
TOOBIN: … and not have this kind of internal fight.. um… dirty laundry aired….
ROSEN: ...and basically avoided the embarrassment that would have come from the publication of this explosive dissent.
JAD: Ok, so fast forward a couple months… the court reconvenes to re-argue the case. The room is packed.
COYLE: Standing room only crowd.
ROBERTS: We’ll hear reargument this morning in case 08205 Citizens United v. The Federal Election Commission...
JAD: And here’s the thing… everybody knew what was going to happen…
KENNEDY: So you are asking us to have an ongoing chill against speech… and there is no place where an ongoing chill is more dangerous than in an elections context… the government silences a corporate objector and those corporations may have the most knowledge of this on the subject. Corporations have lots of knowledge about environment, transportation issues. And you are silencing them during the election…
JAD: It will probably come as no surprise that Kennedy did a whole lot of talking, a whole lot of carrying on, and when the Court finally decided the case…
BOOS: We had a landmark decision, 5 to 4 decision.
John G. Roberts, Jr.: In case 08-205, Citizens United versus the FEC, Justice Kennedy has the opinion of the Court.
KENNEDY: 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. 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. The Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, that uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
PROTEST TAPE: Whose court? Our court! Whose court? Our court!
JAD: Now obviously, a lot of people were not happy about this decision.
KAI NEWKIRK ON VIDEO: I raise on behalf of the vast majority of the American people who believe that money is not speech...corporations are not people…
JAD: You had the Kai Newkirk’s of the world sneaking in cameras into the Court… You had President Obama at his State of the Union
OBAMA SOTU 2010: last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations –
JAD: Basically calling out the Justices who were right there in the audience…
OBAMA SOTU 2010: To spend without limit in our elections.
NEWS TAPE: They were sitting right in front of him there
JAD: At one point the camera zooms in on Justice Alito…
NEWS TAPE: Justice Alito appears to at least cringe… he seems to be mouthing something…
NEWS TAPE: Viewers can see Justice Samuel Alito grimacing and mouthing the words, not true.
JAD: Speaking of true, and here’s what’s true…. The upshot of this decision, and I think most people would agree, is that Souter was right, Obama was right. Suddenly you had a ton more money in politics…
NEWS TAPE: Citizens United has made it possible to raise inordinate amounts of money….
JAD: The exact amount of new money that flooded in is a little bit hard to measure… but, what’s pretty clear, is that all those Super PACs…
NEWS MONTAGE: Super PAC, Super PAC, Super PAC…
JAD: That you hear about …
COLBERT CLIP: You know I’ve been talking about Super PACS for a year now…
JAD: Those things where an individual can give an unlimited amounts of money to get someone elected or not…
NEWS CLIP: Now what we’ve got are kind of rogue billionaires putting money into secret groups…
JAD: It’s safe to say that the Citizens United decision basically threw gasoline on that fire… but, before we get ahead of ourselves, it’s not to say that everybody hates this decision… Not everybody…
KOZINSKI: I think people who object to it have gone off the deep-end. I think they’ve lost their minds. I think they're not truly liberals.
JAD: This is ninth circuit judge Alex Kozinski again. He was the guy in Kennedy’s head…
KOZINSKI: The case stands for the simple proposition that when you band together with other people, you don't lose your freedom of speech. Whether it be a union or association, or corporation...
DORF: You know, a lot of organizations take the corporate form…
JAD: This is Michael Dorf,
DORF: My friends call me Mike, but more professionally I go by Michael
JAD: He’s a professor of law at Cornell, a former Kennedy clerk. And even though he is critical of the decision, he says you do need to keep in mind
DORF: That in the opinion itself, Justice Kennedy points out that under the law as it was written, the ACLU would be forbidden from putting on its website an essay promoting the candidacy of a pro free speech candidate. The NAACP couldn't promote a pro civil rights candidate.
JAD: To which you might argue, those groups are not for profits… There should be a difference between nonprofits and for profits
DORF: But the Washington Post is a for profit. CNN is a for profit. These are core institutions of our democracy. They're protected not only by freedom of speech by freedom of the press. So you say well ok, so we're going to make an exception for media corporations. Well what's a media corporation? Media corporations are often just divisions of other gigantic corporations. For a while, NBC was a division of General Electric. Does that mean that you're going to carve up which parts of their funds can go to the speech rather than to other parts? And do we really want to trust the government to draw the lines?
JAD: In other words, things can get really complicated fast…. which is why Alex Kozinski says
KOZINSKI: … freedom of speech is freedom of speech.
JAD: Like, just don’t touch it. Keep the government away from it. And, he says, when the Citizens United decision came out…
KOZINSKI: It seemed perfectly right to me. Still seems absolutely correct and I think everybody who-- all the people who object to it are being foolish.
JAD: Now, Justice Kennedy, for his part:
COYLE: About two years ago, he was at Harvard Law School
CLIP: OK, there’s one over here
COYLE: And having what they call these public conversations with the Dean when a student
STUDENT: I’m David Oswell, thank you for coming to speak with us
COYLE: Got up and asked him, Do you regret your decision
HARVARD STUDENT: Five years later I’m curious if you can stand by some of the assumptions that underlied your opinion there
COYLE: when you see all the money that has poured into our election system?'And he says, no, I don't regret the decision…
KENNEDY AT HARVARD: Certainly in my own view what happens with money in politics is not good.
COYLE: But...
KENNEDY AT HARVARD: It does seem to me that one of the things is disclosure…
COYLE: People don't really have to worry because we have disclosure laws when these corporate contributions are being made, they have to reveal who they are and who their funding sources are.
JAD: This is something he actually talked about explicitly in his Citizens United decision…
OYEZ CITIZENS OPINION KENNEDY: The Act has provisions for extensive disclosure...
JAD: And he told the students, that transparency will protect you, it will protect us…
KENNEDY: You live in this cyber age. You don’t need to wait for three months after the election for a report on who gave the money, it can be done in 24 hours. If the voters don’t like the people who are funding you, phff don’t vote for em.
JAD: His point is if you have the information you need to make a good decision, nobody’s free speech should be limited at all… and this is frankly the perfect example of the kind of high-minded principle that works in reality, NOT AT ALL.
MUSIC
JAD: NOPE. I mean he’s right. There are disclosure laws, but they are really, really easy to get around. For example, right now I could write a three million dollar check to a 501c(4) like Citizens United or the NAACP for that matter, and they would never have to tell anyone that that money came from me. I could just hide in the shadows. That’s why these donations are often called:
NEWS TAPE: “dark money”
NEWS TAPE: “shadow money”
JAD: Now there are people who could change this. Who could make disclosure an actual meaningful thing… for example….
FEC STING
JAD: The FEC is one of those places.
FEC STING
JAD: The FEC could choose to fix all the loopholes, and require that all the money that has come into politics in the wake of Citizens United, at the very least be identified, be sourced. The problem is that the FEC is required by law to have no more than three commissioners be a member of the same party at once. So essentially they want there to be balance between democrats, republicans and independents. And in this day and age what that means is gridlock. And so the idea of strengthening disclosure laws comes up, gets stalled, comes up, gets stalled, comes up, gets stalled… A couple of years ago…. Here’s a little bit of fun tape… A couple of years ago, two of the Democratic members on the commission got so frustrated at the non action of this commission that they petitioned their own commission to allow for public debate about things like strengthening disclosure.
FEC MEETING AMBI
JAD: Listen to what happened.
FEC RAVEL: The petition before us today
JAD: This is commissioner Ann Ravel.
FEC RAVEL: is solely to allow people to comment directly to the Commission about
issues that are of great importance to everyone in this country …
JAD: Ann Ravel is a democrat. She and her colleague,
FEC RAVEL: Commissioner Weintraub
JAD: Ellen Weintraub..
FEC WEINTRAUB: Thank you Chair Ravel.
JAD: Brought the petition… and as soon as they finished making their opening statements…
FEC, RAVEL: Mr. Vice Chair, thank you
FEC PETERSEN: Thank you Madame Chair
JAD: one of the Republican members of the commission, a guy by the name of Matthew Petersen, said, ok, so you want to bring a petition but you know look. I am looking at the rules and it says only a quote person can bring a petition…
FEC PETERSEN: And our definition of person excludes or says does not include the federal government or any authority of the federal government. That would seem to indicate that a commissioner acting in his or her official capacity does not qualify as a person under FEC rules
FEC WEINTRAUB: I mean first of all I cannot believe that you are actually going to take the position that I am not a person. I just… I find that a corporation is a person, but I am not a person.
FEC PETERSEN: But we are not in the realm of common sense… we are in the realm… of 11 CFR. And I will stipulate that we are not in the realm of common sense when we are dealing with this…
FEC HUNTER: I won’t. I won’t.
FEC WEINTRAUB: I’m sorry, Commissioner Hunter, you actually want to insist that I am not a person.
FEC HUNTER: That’s right.
JAD: That’s another FEC Commissioner, Caroline Hunter. Republican.
FEC HUNTER:
FEC WEINTRAUB: [laughs] That’s how bad it’s gotten, my colleagues will not admit that I am a person. That’s really striking. Because I am a member of this commission I am not a person… is um… just kind of dumbfounding…
FEC HUNTER: I didn't mean literally you're not a person of course you’re a person
FEC WEINTRAUB: My children are going to be really disappointed.
FEC HUNTER: I think I think you're not an alien at least not today. But um….
FEC WEINTRAUB: I asked the vice chairman yesterday I said are you guys going to have a problem with this-- could I just finish my sentence?
FEC HUNTER: I didn't say think I was just going like this. If that bothers you I’ll put my hand down.
FEC RAVEL: I'll call on you next….
EC WEINTRAUB: I really do find it comical that you're going to-- that you’re so opposing the public having the opportunity to weigh in on these issues that you’re willing to take the legal position that we're not persons.
FEC HUNTER: I find it comical that we got an email--
FEC RAVEL: Do you have something to add?
FEC WEINTRAUB: Well [laughs] several things. I mean A, you know it's it's ironic there's a lot of irony on the agenda today, but as I said, I’m happy to consider new proposals for how to change this, I just don’t like to do it on an ad hoc basis.
FEC PETERSEN: Like the petition
FEC RAVEL: This meeting is adjourned..
JAD: Ann Ravel, one of the two democrats that you just heard who brought the petition, resigned from the FEC in 2017. She left out of frustration. And if the FEC is kind of useless when it comes to fixing this whole money in politics thing, and if the courts have said what they have said, well, where do we look for hope? The IRS? Congress? I mean they must be more functional, right? Right?
MUSIC
JAD: More Perfect is produced by Jad Abumrad, Suzie Lechtenberg, Jenny Lawton, Julia Longoria, Kelly Prime, Sean Rameswaram, Alex Overington,
and Sarah Qari. Sean you go
SEAN: With Elie Mystal, Cristian Farias, Linda Hirshman, David Gebel, and Michelle Harris. This episode was produced with Kelsey Padgett. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by The Charles Evans Hughes Memorial Foundation. Thanks.
