For Theodore Olson, the turning point in the case of Citizens United v. Federal Election Commission, the moment when he thought a big win was possible, came during the first oral argument on March 24 last year.
That was when his adversary, Deputy Solicitor General Malcolm Stewart, under duress acknowledged that yes, a corporation-sponsored book could be banned under federal law if it contained text for or against a candidate's election. Justices were slack-jawed. They ordered a re-argument for September and, on Jan. 21, struck down the law and the precedents that supported it.
"The first oral argument was an eye-opener for everyone," the Gibson, Dunn & Crutcher partner said the day after his stunning 5-4 victory. "It became apparent then that the government was going to have a very tough time defending the rationale of Austin [v. Michigan Chamber of Commerce] without having to acknowledge that it would authorize criminalizing books, yard signs, pamphlets and other traditional forms of advocacy."
But the crucial moment in the case may have come in November 2008, when Citizens United decided to hire Olson in the first place to argue the case at the U.S. Supreme Court. By bringing on Olson in place of veteran campaign-regulation foe James Bopp Jr., the group aggressively ramped up the constitutional issues, making it much more likely the high court would make history in its ruling on the case.
At the beginning of the litigation, said Citizens United general counsel Michael Boos last week, the case was not mainly about its documentary "Hillary: The Movie," which was critical of then-presidential candidate Hillary Clinton. The group's main complaint was that, even if the movie was not a prohibited electioneering communication, the group might have to insert a disclaimer identifying itself as "responsible for the content of this advertising" -- a four-second message in the 10-second ads it planned to air for the movie.
In Bopp's first filing with the Court in August 2008, he did not even cite the 1990 Austin decision and focused instead on a challenge to the disclosure and disclaimer requirements in the law -- which, in the end, turned out to be a losing argument.
"We have nothing but praise for Jim Bopp," said Boos on Jan. 22. "But our board of directors decided to go with Ted. He's the winningest attorney at the Supreme Court."
As soon as Olson delved into the case, he saw bigger possibilities: using the dispute as a vehicle to make the larger point that the Court's precedents had the unconstitutional effect of letting the government engage in outright censorship of the Hillary movie. The biggest target would be Austin, which upheld a ban on corporations using general treasury funds for independent expenditures in campaigns.
"I believed from the moment that we were brought into this case that it could be the vehicle to challenge Austin," Olson said. It was a tricky proposition, however, because such a challenge had been withdrawn at the district court level.
But the client gave the green light. "Prior to Ted coming on the case, we never focused on Austin," Boos said. "It was Ted's perception that our strongest case was on the movie itself, not the disclaimer. ... He turned out to be right."
Olson's strategy was to make overturning Austin -- and part of McConnell v. Federal Election Commission (2003) -- logical extensions of the narrower issues first placed before the Court. "We sensed that we could, in that context, also urge the Court that it really had to decide the core issue that was not going to go away and that would continue to chill constitutionally protected political discourse, the most important speech that a free people have."
When Olson filed a brief placing Austin front and center in the case, Robert Bauer, an election law expert who is now White House counsel, wrote a blog item calling it a "stinging attack" on campaign finance regulation, adding that "Olson is in no mood for concessions."
Because of Olson's decision to reorient the case as test of Austin, Boos said, "We got a much broader constitutional decision than we had thought we would get."
In an interview after the decision, Bopp offered a different take on the strategic choices in the case. He asserted that, even though the initial filings did not explicitly attack Austin, "we believed that issue was always in the case. When you have a case where a particular precedent is being applied, the validity of that precedent is always an issue."
That said, Bopp added, "We'll never know" if the Court would have taken the big step of overturning Austin if subsequent briefing had not highlighted the issue. After being bumped from the Citizens United team, Bopp filed an amicus brief on behalf of former FEC commissioners, arguing that the case could be decided without overruling Austin.
Bopp is happy that the Court did go all the way and said, "I'm pleased I could play some useful role in the case."
Boos is glad to be "on the winning side of a landmark case," he said. But he recalled almost ruefully that the litigation could have been avoided entirely if, at the very beginning, the FEC had agreed to categorize his group as a media organization exempt from regulation. Many dollars and years later, Boos said, the group may seek that exemption again.
Though he won't break down the fees, Boos said outside counsel for the case cost Citizens United $1.25 million. "And you can't raise money on an issue like this. You talk about challenging McCain-Feingold, and people have no idea what you are talking about."