Dave Bossie, the head of Citizens United, is normally not described as self-effacing or recalcitrant. However, as the man responsible for what the New York Times described in editorial yesterday as one of the biggest cases to go before the U.S. Supreme Court this year (it is surely the biggest campaign finance case since 1976), he is circumspect. "Don’t quote me!" Bossie chuckled, over a glass of Qupe Chardonnay at the Capital Grille in Washington, D.C. last night with me and Floyd Brown. "I don’t want to jinx the case."
Bossie produced a movie critical of Hillary Clinton a la the style of Michael Moore, and intended to commercially release it and promote it during her last presidential campaign. The Federal Election Commission didn’t like that idea and they got into a legal tangle. The result was Citizens United vs. Federal Election Commission, a case Bossie won before a three-judge panel with the help of well-known constitutional lawyer Jim Bopp of Indiana. I know Bopp and was co-counsel with him in California Right to Life vs. Fair Political Practices Commission in Federal court here in California. In that case, with the help of a legal team made up of Democrats and Republicans, we were able to enjoin most of California’s Proposition 208, a campaign finance reform measure found to violate the First Amendment. That was in 2000. Bopp continued to win cases in the field since then, and was the lead attorney in the successful Wisconsin Right to Life case a couple years ago before the U.S. Supreme Court, which gutted most of the McCain-Feingold campaign finance reform law on First Amendment grounds.
None of those cases have as far-reaching a potential as the Citizens United case. Bossie changed legal horses after his District Court panel win and had Ted Olson argue for him last March before the U.S. Supreme Court, and again at a special hearing this month. Olson is a former Solicitor General of the United States under President George W. Bush and in that job was the top Supreme Court litigator for the U.S. Government. Olson has a special distinction in California, because he is also a lead counsel for the homosexual marriage community in opposing Proposition 8 in federal court. I asked Bossie last night about that irony and his reply was to refer me to a report in the New York Times. According to the Times report, Bossie recently saw Olson at an event and went up to him and said "he would kiss him" but that people might get the wrong idea given some of his current legal work (or words to that affect). Olson was sitting next to a reporter at the time and had just signed on for the challenge to Proposition 8’s ban on gay marriage in California. Perhaps an awkward moment, perhaps not.
Dave Bossie is a real guy, and anyway, his work on this Citizens United case and the Hillary movie is to be admired. Years ago I once voted to give him a $50,000 "Reagan award" from the American Conservative Union as an up-and-coming deserving conservative at a CPAC meeting. He won the contested vote and I am glad I did vote for him and played a small part in helping launch his career. And it was great to meet with Dave with Floyd Brown, the founder of Citizens United.
Supreme Court observers, especially conservative political lawyers like myself, believe that Bossie will win the case and that the Supreme Court will rule that corporations have a right to make donations to federal candidates just as they do in 27 states for state candidates. It will be a stroke for the First Amendment. This ruling will greatly change campaign finance, however, and how campaigns do business. And the FEC will immediately start trying to regulate the amount that corporations can contribute, perhaps setting up more litigation in future. But a new standard will have been set in the process.
One thing Bossie did say was in response to my question about what he thought the most important question was that was asked by Justices at the recent hearing. He said it was a question asked by Justice Ginsberg to Obama’s Solicitor General Kagan. It should have been a softball. The question was "does the government still maintain that books can be banned during election campaigns that include express advocacy of candidates." Kagan gave a long answer that essentially stated that the government had changed its position and wouldn’t ban any books in the future.
Not such a good ending to her oral argument in the case, in my opinion (Bossie remains mum).