Wednesday, September 9, 2009

Ted Olson Housing Things

Ted thinks it's pitiful that you doubted him.

Today was Speech of the Century Day (it was okay); more excitingly, today was Sonia Sotomayor's debut at the Supreme Court - a debut that came in a case that, according to one hyperbolic assessment, "could surrender control of our democracy to corporate interests." I don't think the case was quite that big a deal, but it's a fairly big deal. The case involves a hitjob documentary on Hillary called, amusingly enough, Hillary: The Movie. Citizens United, a conservative nonprofit corporation/advocacy group, tried, during the primaries, to run the movie on on-demand cable and run a few ads on Fox and other networks suggesting that you pony up a couple bucks to watch their crappy movie. Amazingly enough, the government then stepped in and said that they couldn't air their movie on TV, not even on on-demand cable, because campaign finance law prevents corporations from running ads, movies, or other "electioneering communications" that endorse or bash a candidate within 30 days of a primary or 60 days of a general election. Citizens United then sued, claiming that their movie was not an electioneering communication as defined by campaign-finance law.

However, once they made their way to the Supreme Court last year, something strange happened. They were met by a government lawyer who, in his defense of the government's enjoining of the movie, bizarrely chose to argue that the law covered not only TV commercials and broadcasts, but also DVD's, websites, books, and Kindle. Either the guy was insane or deliberately trying to sabotage his own case and persuade the Court that campaign-finance law was unconstitutional. (He was a Bush appointee.) Faced with the prospect of banning books, the Court took the remarkable step of requesting a reargument of the case, asking the parties' attorneys to this time argue not whether the film was covered by the statute, but whether the statute itself was constitutional at all - whether the First Amendment allows us to restrict corporations' political speech in the weeks before an election. The only problem is that the Court said in a landmark decision just 19 years ago that restricting corporate campaign expenditures was perfectly alright.

The four lawyers who went before the Supreme Court are all geniuses, with the exception of one heavily overrated hype job. Citizens United hired Ted Olson, Bush's lawyer in Bush v. Gore and the Bush Administration's top attorney (the technical term here is Solicitor General) during Bush's first term. The government was represented by Elena Kagan, Obama's Solicitor General and the outgoing Dean of Harvard Law School. John McCain, the author of the legislation at issue (McCain-Feingold), was represented by Seth Waxman, Bill Clinton's Solicitor General, the winning attorney in the most recent Guantanamo case, and an incredibly brilliant guy. And Mitch McConnell, Republican Senate Minority Leader and lifelong opponent of campaign-finance reform, was represented by Floyd Abrams, First Amendment lawyer extraordinaire. He's the hype job, for reasons we'll get to later; I'd like to get to Kagan first.

Today was actually Kagan's first argument before the Supreme Court or any appellate court. Nevertheless, she acquitted herself extraordinarily well. Her argument, though, would fall victim to one huge flaw. The case that said 19 years ago that regulating corporate expenditures was okay, Austin, was decided on the basis that leveling the playing field and preventing what the case refers to as "distortion" of the marketplace of speech was a valid, even compelling, government interest. Today, though, it's clear that a majority of the Court thinks that leveling the playing field isn't something the government ought to be engaged in. So Kagan was forced to invent new reasons to uphold an old case, reasons that both aren't in the old case and are fairly unconvincing. Her one theory, oddly enough, is that we need to protect shareholders of corporations from having their money spent on political causes that they don't believe in; this doesn't wash when the vast majority of corporations don't sell stock. (As Scalia somewhat ridiculously kept coming back to, what about the "local hairdresser"? Kagan's quite reasonable response, that the local hairdresser can run an ad as an individual if she so chooses, didn't convince.) Her other is that if we let corporations buy ads, they could secretly trade those ads for favors from politicians. Not clear, unfortunately for her, that you need a total ban to prevent isolated instances of quid pro quo corruption. And of course, she was forced to take back all the stupid shit her batshit crazy predecessor said about it being totally okay for the government to ban corporation-funded books.

Olson and Abrams, on the other hand, were faced with the easy task of persuading a majority of the Court to adopt a position that they already believe in. Or at least it should have been easy, but Abrams, who's really more of a celebrity lawyer than a pro at this sort of thing, decided he'd spend his 10 minutes talking about New York Times Co. v. Sullivan, a very famous libel case that allowed newspapers to say bad stuff about people and has absolutely nothing to do with the issue at hand. It seems his theory was that, since free speech was really great and important in that context, it's really great and important in this one too. This is what happens, readers who plan to hire a lawyer to represent them at the Supreme Court one day, when you hire a frequent Larry King Live guest who writes popular bestsellers about how cool free speech is. When hiring an attorney to represent you before the Supreme Court, don't hire someone who you can actually understand. Hire a genius who speaks in alien tongues. Like me.

As for Olson, he spent his time getting cheered on by the four conservative hacks on the Court (and Justice Kennedy, who's more of a confused Hamlet figure but really hates campaign finance laws) and batting down easy questions of the "we said this was okay before, why isn't it still now?" variety from the four liberal hacks on the Court. And make no mistake about it; this Court now has four liberal hacks. It used to have only three, as Justice Souter was no hack, but rather the Court's brightest member and a guy who genuinely thought cases over before committing one way or the other. Sotomayor, on the other hand, is, like the rest of the Court's members, a hack, someone who sees a result she likes (banning corporate speech, good!) and comes up with specious legal arguments to justify getting there. For example:

JUSTICE SOTOMAYOR: Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? I know that we asked for further briefing on this particular issue of overturning two of our Court's precedents. But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?

Translation: Couldn't we just pretend that the Hillary movie somehow doesn't violate the law so that we could avoid throwing out this blatantly unconstitutional law (which, despite its unconstitutionality, I happen to like) altogether?

JUSTICE SOTOMAYOR: Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment. And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

Translation: For the past century, Congress and the states have arguably been violating the Constitution when it comes to corporate speech. Since they've been doing that, wouldn't it be really unfair to impose the Constitution on them and cut off that fun "democratic process" now? Can't we just look the other way and not impose the test that applies to all other regulations of speech? And maybe, just maybe, we could throw out the centuries-old law that treats corporations as people, with the same constitutional rights that people have? Just throw it out? Even though absolutely no one has suggested that, it's not an issue properly before this Court, and it would create massive ripple effects in all sorts of other arenas? Because that would fix this whole problem and get us to the result I'd personally like.

Not that Sotomayor is dramatically worse than her liberal (or conservative) brethren. Justice Breyer offered this amusing argument for the constitutionality of the law:

JUSTICE BREYER: Is -- I -- I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit. And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence...So, if you could save me some time here, perhaps you could point me, if I am right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?

Translation: A few years ago over the summer I read a thousand-page document summing up an even longer document in which Congress offered a lot of justifications for the law. I really like this law and would love to defer to what Congress said about it; after all, what they said was really long and therefore must be convincing. I don't actually remember what that stuff said or whether it was very meaningful, but I want to vote for your side; could you help me remember some nice reasons to vote for you so I know what to say when I write my 60-page opinion about what a shame it is that the majority's letting corporations exercise their free speech rights?

After Olson, Abrams, and Kagan went, on came Waxman, and for a few minutes he worked up an incredibly eloquent storm about how Congress has been banning corporate expenditures for a hundred years and it sure as fuck isn't stopping now. At one point he actually name-checked a speech given on campaign finance in 1894 by "the sober-minded Elihu Root." Ladies and gentlemen, the sober-minded Elihu Root:

Looks sober-minded, doesn't he? Yes, wise old Elihu didn't want corporations corrupting our political system and we shouldn't either. To which Justice Kennedy bizarrely counters that back in Elihu's times, we didn't have "the phenomenon of -- of television ads where we get information about scientific discovery and -- and environment and transportation issues from corporations who after all have patents because they know something, that -- that is different." An aside: when Justice Sotomayor talked about wise Latinas making wise decisions, this is what she was talking about. Justice Kennedy's a great guy and a reasonably smart one, but he may have the least common sense of any white man on Earth. Dude seriously thinks that we gain from corporations running TV ads during election season because they're telling us helpful information about scientific discovery. And after all, those corporations, they have patents because they know something! That's different! They can tell us special information. Yeah, what really happens, as even I'll admit, is that your oil company who wants offshore drilling knows something, alright - that offshore drilling will make them richer - and runs ads against your local Democratic Congressman, talking a lot of mess about how he's costing jobs and making your gas prices go up by opposing something that won't kick in for a decade. But Justice Kennedy is weirdly naive like that.

Anyway, Waxman, nonplussed by Kennedy's insanity because he's argued a million cases before the Court and Scalia's nutty tirades about ad-running hairdressers and Kennedy's deluded optimism just rolls off his back at this point, goes merrily along his way for a couple minutes before until Justice Alito bursts his bubble, like so:

JUSTICE ALITO: Mr. Waxman, all of this talk about 100 years and 50 years is perplexing. It sounds like the sort of sound bites that you hear on TV. The -- the fact of the matter is that the only cases that are being -- that may possibly be reconsidered are McConnell and Austin. And they don't go back 50 years, and they don't go back 100 years.

No, they go back 19 years and 6 years. All that shit about how Congress has been doing this for a hundred years? Irrelevant. Waxman immediately apologizes for "demeaning the Court with sound bites." Again, let me stress the Abrams lesson: don't talk to the Court in intelligible ways understandable to the normal human being. Don't bullshit the Court. Waxman, previously on the roll of a lifetime, never recovers.

Then it's Olson's turn for rebuttal. Remember when I said that Kagan had a big problem, that a majority of the Court has plainly abandoned the rationale underwriting the precedent she's defending, forcing her to invent new, unconvincing rationales for that precedent? Yeah, well, here is where Olson counters with a big "what the fuck is you saying?" Here is how he opens:

The words that I would leave with this Court are the Solicitor General's. "The government's position has changed."

Ouch. The Court's liberal hacks quickly jump to their fellow liberal hackette's defense, claiming that nothing has changed and attempting to mire his ass-whipping of a rebuttal in statutory arcana and precedent-interpreting muddle. And they do for a few minutes. But, only as a genius advocate can, away he leaps from the hacks' clutches and proceeds to absolutely shit on the government's position, reducing all that's gone before to incoherent rubble:

I am -- I am representing an individual who wants to speak about something that's the most important thing that goes on in our democracy. I'm told it's a felony. I am not -- and I -- I don't know what the rational basis is. It's overbroad. Now I hear about this shareholder thing -- protecting shareholders. There is not a word in the congressional record with respect to the -- which was before the Court in the McConnell case about protecting shareholders. [Justice Breyer attempts to throw him off course; he scoffs at the question for the disingenuous bullshit that it is. Then:] My point I guess is -- if I may finish this sentence.
MR. OLSON: My point is that the government here has an overbroad statute that covers every corporation irrespective of what its stockholders think, irrespective of whether it's big, and whether it's general -- a big railroad baron or anything like that, and it doesn't know, as it stands here today two years after this movie was offered for -- to the public for its view, what media might be covered, what type of corporation might be covered and what compelling justification or narrow standard would be applied to this form of speech.

CHIEF JUSTICE ROBERTS: Thank you, counsel. The case is submitted.

And just like that, General Kagan is owned. As picayune as the stuff may sound, to a lawyer, that contemptuous "it doesn't know" amounts to ownage of 'Ether' proportions. In years to come, lawyers may well tell each other, "you just got Olsoned." That said, when I heard the stunning ending of this argument, I didn't think of 'Ether,' which I think many of us are coming to agree was sort of overrated, but rather 'Kool Keith's Housing Things.' How hard is the line when Keith goes, "back in the days when I taught about science, the real construction, no other solo team or production did that, or got with that"? My favorite line on the album. Well actually, I prefer "but like my son, you still obey certain laws" on 'Funky.' But anyway. Ted Olson, folks, a virtuoso of Kool Keithian proportions.

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