It Was a Set-Up

05.18.12

How John Roberts Started This Spending Madness

Related to Joe Ricketts and SuperPACs and all this is of course the Supreme Court decision that made it all possible, Citizens United. It's worth remembering how we got here.

Jeff Toobin's piece in this week's New Yorker is a total revelation. The CU decision, it turns out, didn't just happen. You know--a case goes through the appellate layers, the Supremes decide there's an interesting question in it, they grant certiorari, and they hear the case. That's our assumption, and it's what usually happens.

Well, it's not what happened here. It's technically a bit complicated, but what happened is that the Court heard the case a first time, when the petitioner (Citizens United, represented by Ted Olson) was seeking only a very narrow decision saying that McCain-Feingold spending and disclosure limits should not apply to a political ad/movie that was being offered on a pay-per-view basis. They planned on showing an anti-Hillary ad on that basis, so that's all they were interested in.

That's what CU wanted. But through the course of the questioning and the opinion-writing, which Toobin explains in lucid detail (see especially page 5 of his article), it became clear to all involved that the conservative faction--led in this case by Anthony Kennedy--could use the case as a wedge to make a much more sweeping decision. And in stepped John Roberts.

To make a long story short, Roberts held back the decision and rescheduled the case for the next year, This enabled the conservative majority to expand dramatically the scope of the majority opinion. And he sped it up, put it on the calendar for September, not the usual first week of October, in order (Toobin suggests) that the decision would be more likely to have an impact on the 2010 elections.

The important thing to remember here: Roberts is the guy who said at his confirmation hearings that he'd go slow and be highly respectful of precedent. But here, he engineered the Court's calendar and procedure specifically to turn a narrow case that few people would even have paid attention to into a sweeping decision that changes American politics and undoes a century of jurisprudence.

And that is how we got these SuperPACs. Really an amazing and important story.