I have a suspicion that this is not going to end well.
The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.
The case, which arises from a minor political documentary called Hillary: The Movie, seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government's ability to bar corporations from spending money to support political candidates.
You mean there are actually activist judges on the Supreme Court? Hmmmm, I wonder who they could be.
Though three Justices (Kennedy, Scalia, and Thomas) have voted repeatedly for Austin to be overruled, Chief Justice Roberts and Justice Alito thus far have moved more cautiously. In each of the campaign-finance cases decided by the Roberts court, these justices have sided with those challenging the law, but in an incremental way. If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing.
And there's a tantalizing hint of where the court will go in another obscure campaign-finance case decided last year, FEC v. Davis. That case involved a different provision of McCain-Feingold, one involving raising contribution limits for candidates facing wealthy opponents. Justice Alito used the case to attack the underlying reasoning of Austin, which upheld the spending limits on grounds that corporate wealth "distorts" the political process and allows spending by corporations "disproportionate" to the views of those in society. In Davis, Justice Alito, for the five conservatives on the court, attacked this equality rationale and said it is "dangerous business" for Congress to try to influence voter choices through "leveling" electoral opportunities. He pointedly cited with approval Justice Kennedy's Austin dissent.
If Roberts and Justice Alito were ready to overrule Austin, why not do it now? I can think of two possible reasons. They may not have wanted to take the plunge on Justice Souter's last day on the court. He has been an ardent defender of these laws. Perhaps more to the point, Justice Alito, in two campaign-finance cases, has said that he would not consider revisiting old campaign-finance precedent until the issue was squarely before the court and briefed. In other words, Alito wants a full airing of the issues before taking such a momentous step.
Now he will get that.
For those of you in need of a little memory jog, the driving force behind Citizens United is a poster child for the abuse of 1st Amendment rights:
During the 1992 presidential campaign, [David] Bossie got into a fistfight with a Little Rock, Ark., private investigator, Larry Case, who said he had damaging information on Clinton. Bossie told police that Case had punched him after Bossie refused to pay Case a $10,000 advance as they were preparing to board a flight at Little Rock National Airport.
That same year, Bossie set out to prove that a young pregnant woman named Susan Coleman had committed suicide in 1977 after having an affair with Clinton. Coleman's mother told CBS that Bossie hounded her relentlessly with his false story, even following her to an Army hospital in Georgia, where she was visiting her husband, in recovery from a stroke. Bossie and another man "burst into the sick man's room and began questioning the shaken mother about her daughter's suicide," CBS reported.
Also in 1992, President George H.W. Bush, repudiating Bossie's tactics, filed an FEC complaint against Bossie's group after it produced a TV ad inviting voters to call a hot line to hear (almost certainly doctored) tape-recorded conversations between Clinton and Gennifer Flowers.
In 1994, Bossie traveled to Fayetteville, Ark., with an NBC producer, where the two allegedly "stalked" and "ambushed" Beverly Bassett Schaffer, a former state regulatory officer and a lawyer who had played a small role in the so-called Whitewater conspiracy. The two confronted Schaffer outside her office and, after she refused an on-camera interview, reportedly chased her across town, until she found refuge in the lobby of an office building.
In February 1996, Citizens United mailed out a fundraising letter bragging that it had "dispatched its top investigator, David Bossie, to Capitol Hill to assist Senator Lauch Faircloth in the official US Senate hearings on Whitewater." Another mailing reported that Bossie was "on the inside directing the probe." Democrats subsequently cried foul that a federal employee was actively raising money for a partisan group, so D'Amato forced Bossie to submit an affidavit proclaiming his independence from Citizens United.
In November 1996, Bossie improperly leaked the confidential phone logs of former Commerce Department official John Huang to the press. And he did that by deceiving other GOP congressional aides, according to an account published in Roll Call, which quoted one Republican aide comparing Bossie's deceptive presence to "Ollie North running around the House."
In July 1997, James Rowley III, the chief counsel to the House Government Reform Committee, which was investigating allegations of campaign finance wrongdoing by the Clinton administration, resigned his position after committee chairman [Dan] Burton refused to fire Bossie. In his one-page resignation letter, Rowley, a former federal prosecutor employed by Republicans, accused Bossie of "unrelenting" self-promotion in the press, which made it impossible "to implement the standards of professional conduct I have been accustomed to at the United States Attorney's Office." (Bossie's habit of self-promotion paid off; during one four-week stretch in early 1994, Bossie and Brown were profiled by the Chicago Tribune, the New York Times and the Washington Post, each marveling at the power the activists were wielding.)
The breaking point came in May 1998, when Bossie, then 32, oversaw the release of the doctored [Webster] Hubbell tapes. As Roll Call reported at the time, "At Bossie's request, Burton sat on the tapes for nearly a year until word started to leak that Hubbell might be indicted by [Kenneth] Starr for tax evasion. Bossie, who supervised the tapes along with investigator Barbara Comstock, oversaw the editing of Hubbell's prison conversation[s] and decided to release them the day before Hubbell was indicted." According to Roll Call, Bossie enjoyed unusually close working relations with Starr investigators.
The tapes were edited for "privacy" considerations, according to Bossie. But they were also edited to completely omit key exculpatory passages, including one in which Hubbell exonerated Hillary Clinton of wrongdoing. Gingrich ordered a reluctant Burton to fire Bossie.
Yet, in 1999, Bossie was given the Ronald Reagan Award by the Conservative Political Action Conference for his "outstanding achievements and selfless contributions to the conservative movement." And it wasn't just the conservative base that continued to embrace Bossie after the Hubbell tape disgrace; so did many in the Washington press corps.
There are a lot of civilized nations in this world where a fella like this would have a lengthy rap sheet and a prison record. Only in the Land of The Free, however, is a psychotic like this granted an appointment at the Supreme Court to argue---successfully, one imagines---for the legal enshrinement of Swiftboating as an inviolable exercise of free-speech rights. So much for Libel laws and labeling requirements.
Now, I don't want to sound too flippant here since there are, after all, some legitimate Constitutional issues, at least on the periphery, that are raised by this case. But let's not fool ourselves: people like David Bossie don't give a rat's ass about the the Constitution or the rule of law in general---their only concern is attaining power using any means at their disposal. People like this have no use for institutions like the Supreme Court other than as vehicles to pursue their own ideological agenda. And they have proven more than once that they will literally resort to any kind of conduct, legal or otherwise---up to and including stalking, blackmail, and outright assault---to achieve their political ends. The Court would be well advised to carefully consider the kinds of behavior to which it would granting, however indirectly, its official imprimatur as the final arbiter of lawful conduct in America. I have no illusion that people like Scalia and Thomas and Sam Alito actually give a shit about ancillary issues like that, but it would be nice to think that one of them would one day.
Read Eric Boehlert's piece in its entirety. If there is ever a total right-wing putsch in this country---and I am starting to fear that it will come sooner rather than later---we will have a lot of people to thank for it, in our government and in our establishment media. For now, President Obama and Speaker Pelosi would be well advised to reconsider their previous stated refusal to reinstate the Fairness Doctrine as soon as possible. The appearance of The Kenyan Candidate at multiplexes everywhere in 2012 should be taken for granted at this point.
And thank you, Blue Dog Senators Akaka, Baucus, Bingaman, Byrd, Carper, Conrad, Dorgan, Inuoye, Kohl, Landrieu, Lincoln, Nelson, Nelson, Pryor, Rockefeller and Salazar for doing your part to ensure that the highest court in the land will be a welcome port for every right-wing character assassin with an ideological axe to grind for the next quarter century. We couldn't have done it without you.
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Vitelius