it had simply censored the other side,” says Lee Goodman, one of the current Republicans on the Federal Election Commission. “Then came Citizens United , and it couldn’t censor outright anymore.” Goodman continues, “Of course, the left didn’t give up on the idea; it just realized it had to be far more creative about suppressing speech. And so it moved to plan B, which was to find other levers of government power to eliminate unwanted viewpoints.”
Tribe, in his article that appeared just a few days after the ruling on the popular SCOTUSblog , partly laid out that plan B. The law professor offered some fairly dry legal analysis of the decision, before moving on to the meat of his proposal. Companies that engage in elections, explained Tribe, were doing so with “other people’s money”—that of shareholders. That justified the federal government’s passing legislation to help shareholders “ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests.” At the very minimum, said Tribe, Congress should dramatically beef up “disclosure and disclaimer requirements” forcing CEOs to have to publicly explain in each ad how much money was being used, and how it supposedly helped the company. And that, explained Tribe, would be as good as a ban: The process of requiring companies to go public would embarrass them out of participating.
Cut out the legal jargon, and Tribe was advocating something extremely simple: humiliation. Force companies to have to justify their speech, and bet that this would intimidate them out of doing so. The Tribe prescription was an amplification of Toobin’s thought on boycotts. Companies live in fear of shareholder or customer backlash. So the left needed to pass enhanced disclosure laws that would make companies fear that backlash. And those disclosure laws would, as a bonus, give Democrats more information, allowing them to go after specific businesses and damage their reputation if they came out for the wrong side.
Tribe’s essay wasn’t novel. It was more the public announcement of a strategy that had been in the works for months. Democrats had always understood that the Court might rule against them in Citizens , and they’d been preparing a response. That’s why President Obama, just hours after the decision, announced that he was telling his administration “to get to work immediately with Congress on this issue. We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.” Obama already knew what that response would be.
* * *
When Ted Olson looks back, he wishes he’d focused a bit more on the disclosure question. But hindsight is always 20/20 and—at least at the time—what he was understandably focused on is what he calls “the big banana.” That “big banana” was the limits on corporate participation in elections. Olson argued the case on behalf of the free-speech contingent, and is one of a handful of brave souls who can take credit for the Court’s striking down those limitations.
One of Washington’s more high-profile lawyers, Olson was an interesting choice for the assignment. George W. Bush tapped him at the beginning of his first term as solicitor general. Bush’s signature on McCain-Feingold set off a series of court fights, and Olson successfully and dutifully defended parts of the law on the president’s behalf in 2003. Only six months later he returned to private practice at the respected firm of Gibson, Dunn & Crutcher, where he rejoined the ranks of free-speech warriors.
Americans think most Supreme Court cases are happenstance. Some random citizen—a Margaret McIntyre—suffers an injustice, and her case slowly wends its way
Tribe, in his article that appeared just a few days after the ruling on the popular SCOTUSblog , partly laid out that plan B. The law professor offered some fairly dry legal analysis of the decision, before moving on to the meat of his proposal. Companies that engage in elections, explained Tribe, were doing so with “other people’s money”—that of shareholders. That justified the federal government’s passing legislation to help shareholders “ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests.” At the very minimum, said Tribe, Congress should dramatically beef up “disclosure and disclaimer requirements” forcing CEOs to have to publicly explain in each ad how much money was being used, and how it supposedly helped the company. And that, explained Tribe, would be as good as a ban: The process of requiring companies to go public would embarrass them out of participating.
Cut out the legal jargon, and Tribe was advocating something extremely simple: humiliation. Force companies to have to justify their speech, and bet that this would intimidate them out of doing so. The Tribe prescription was an amplification of Toobin’s thought on boycotts. Companies live in fear of shareholder or customer backlash. So the left needed to pass enhanced disclosure laws that would make companies fear that backlash. And those disclosure laws would, as a bonus, give Democrats more information, allowing them to go after specific businesses and damage their reputation if they came out for the wrong side.
Tribe’s essay wasn’t novel. It was more the public announcement of a strategy that had been in the works for months. Democrats had always understood that the Court might rule against them in Citizens , and they’d been preparing a response. That’s why President Obama, just hours after the decision, announced that he was telling his administration “to get to work immediately with Congress on this issue. We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.” Obama already knew what that response would be.
* * *
When Ted Olson looks back, he wishes he’d focused a bit more on the disclosure question. But hindsight is always 20/20 and—at least at the time—what he was understandably focused on is what he calls “the big banana.” That “big banana” was the limits on corporate participation in elections. Olson argued the case on behalf of the free-speech contingent, and is one of a handful of brave souls who can take credit for the Court’s striking down those limitations.
One of Washington’s more high-profile lawyers, Olson was an interesting choice for the assignment. George W. Bush tapped him at the beginning of his first term as solicitor general. Bush’s signature on McCain-Feingold set off a series of court fights, and Olson successfully and dutifully defended parts of the law on the president’s behalf in 2003. Only six months later he returned to private practice at the respected firm of Gibson, Dunn & Crutcher, where he rejoined the ranks of free-speech warriors.
Americans think most Supreme Court cases are happenstance. Some random citizen—a Margaret McIntyre—suffers an injustice, and her case slowly wends its way
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