Federal Judiciary

First Amendment 451 -- By: Robert Costa

David Bossie irritates President Obama. Bossie did not get the usual upturned chin or expletive-riddled call from Rahm Emanuel this week after the Supreme Court ruled in favor of Citizens United, his non-profit corporation, in a landmark free-speech decision. Rather, Obama decided to take a potshot through a sharp-edged rant tucked into the State of the Union.

?With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections,? Obama said. ?Well, I don?t think American elections should be bankrolled by America?s most powerful interests, or worse, by foreign entities.?

Bossie?s take on Obama?s finger-wagging was similar to what Justice Samuel Alito mouthed, and similar to the analysis Bradley A. Smith and Shannen Coffin have presented on the Corner: ?Not true.? Foreign corporations, Bossie says, are prohibited from making contributions in connection with American elections, and that wasn?t even at issue in the case. The president?s anger over the Court?s 5-4 decision, he adds, actually reveals something more troubling: Obama doesn?t like it when someone tries to snatch power from the federal government and put it back in the hands of the American people.

?Our argument in the case wasn?t complicated,? says Bossie. ?It was about freedom, and it ended up hinging on a very simple question: If the FEC is comfortable banning political films, like Citizens United?s Hillary: The Movie, around election time, would it also be fine with banning political books financed by corporations? The Justice Department?s attorney answered yes, the government did have the power to prohibit the publication of a book. When they admitted that, everything changed.?

?I think that answer sent a chill through the Court,? says Bossie. ?It was that moment that was a catalyst for us, and gave us the opportunity to win on much bigger constitutional grounds than we anticipated. It became apparent that the government believed that they could ban anything: movies, books, pamphlets, the Kindle, you name it. It was a shocking revelation.?

Ted Olson, the former solicitor general who represented Citizens United before the Court, says that he?s not surprised at what Bossie has been able to accomplish. ?I?ve known Dave for a decade,? he says. ?I?ve always admired what he does. When we got together to discuss this case, I knew we could win. He had other attorneys before me, but for this last step, he brought me on. We spent a lot of time looking at the arguments from the court below, and realized after our oral argument in March 2009 that we could argue that precedents could be overturned. That?s when we knew we had traction.?

?President Obama and his party are worried that this decision means that big corporations will dominate politics. They?re wrong,? says Olson. ?The Court?s decision was about opening up the political process to individual corporations and small corporations, to create a more favorable balance and open up free speech to everyone.?

So how did Bossie, an unknown outside the Beltway, become the new hero for political speech? It all starts with Bill and Hillary. Before becoming a producer of political films at Citizens United, Bossie was what the Clintons would call a card-carrying member of the vast right-wing conspiracy. He was the chief Whitewater investigator for the House GOP in the 1990s. He also investigated the foreign-fundraising problems in Bill Clinton?s 1996 reelection campaign.

Those experiences, says Ed Gillespie, Bossie?s old friend and former chairman of the Republican National Committee, helped to prepare him for a historic Supreme Court battle. ?Dave pushed this free-speech issue and saw opportunity when very few others did,? says Gillespie. ?He understood its significance from the outset, and now he?s changed the political environment.?

Since the big win, Bossie has been assailed by the Left. Not that he cares. He doesn?t apologize for his past investigations into the Clintons, and shrugs off criticism that his motives for suing the FEC were purely political. ?This case wasn?t just about me or Citizens United,? he says. ?It was about standing up for the principles of our Founding Fathers.? He points to the support he garnered from the American Civil Liberties Union as an example of how this wasn?t about ?conservative demagoguery.?

?When I heard the ACLU was supporting us, I had to question myself for a moment,? Bossie laughs. ?I mean, wow, I?ve never had their support, ever. Think about this: One of our films was called ACLU: At War With America. To have them agreeing with us, plus the AFL-CIO and the Reporters Committee for the Freedom of the Press -- both not exactly bastions of conservatism -- was a sign of how powerful our position was. I?m eternally grateful to all them for bringing forward a view of how important this was to groups across the political spectrum.?

?The FEC believed that they have a mandate to tell the American people what they can and cannot do when it comes to an election,? says Bossie. ?We?ve always been under the impression that the FEC believes that it?s not necessarily an inherent right for the American people to speak during an election; it?s only by the grace of the FEC. The oral arguments in this case proved that all to be true. As they?ve taken more and more power, which Congress, via John McCain and Russ Feingold, has happily given them, they?ve encroached on the First Amendment.? Writing for the majority, Justice Anthony Kennedy agreed, quoting a previous case that called political speech ?indispensible to decision-making in a democracy and this is no less true because the speech comes from a corporation.?

?It?s a huge, huge symbolic win,? says Andrew Breitbart, the founder of BigGovernment.com. ?The Left wants to scare people into thinking that more free speech will be harmful for democracy, but just watch, in five years we?ll laugh with contempt at such arguments. Thanks, in part, to Dave?s great work, Americans are becoming hip to how they?ve been muzzled by our politically correct Sharia system. Conservative opinions may be deemed toxic by the mainstream media, but this new ruling stops their ability to curb speech in this country.?

?Dave?s legal work,? adds Breitbart, ?is like what I do with my websites: We?re trying to wrest control of media back from the Left, who have brilliantly taken control over the years and dominated our political and cultural narrative.?

With all due deference to President Obama, the floodgates are now open, not for special interests, but for free speech.

-- Robert Costa is the William F. Buckley Jr. Fellow at the National Review Institute.

Full post as published by Bench Memos - National Review Online on January 29, 2010 (boomark / email).