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ARCHIVAL AUDIO (ROBERT F. KENNEDY): My thanks to all of you and now it’s on to Chicago and let’s win there.

ARCHIVAL NEWS AUDIO: Senator Robert Francis Kennedy died at 1:44am today, June 6, 1968.

DAVID: We just finished the last episode in the mid-1970s, so you might be wondering what we’re doing back in 1968? And also — what does RFK have to do with a master plan to legalize corruption?

Don’t worry, I’m not going down a rabbit hole of Kennedy conspiracies. But… stay with me here… you know that whole idea of chaos theory?

“JURASSIC PARK”: The butterfly effect. The butterfly can flap its wings in Peking and in Central Park you get rain instead of sunshine.

DAVID: Well, the death of RFK had cascading effects that I don’t think even the best politicos could have predicted. It was the first flap of the butterfly’s wings.

There were a few huge, obvious ripple effects from RFK’s assasination — the Democrats nominated Hubert Humphrey in the disastrous 1968 Democratic convention, which led to Nixon getting elected, and then, of course, Watergate. But there was another, often overlooked consequence — a tiny ripple that the master planners capitalized on — that is still making waves today.

Kennedy’s assassination left a vacancy in the Senate, which New York’s Republican Governor Nelson Rockefeller filled with a relatively obscure member of his own party, rather than another Democrat.

ARCHIVAL NEWS AUDIO: Governor Nelson Rockefeller today named New York Republican Congressman Charles Goodell to Senate seat of late Robert F. Kennedy. That term expires in January 1971.

DAVID: Representative Charles Goodell — today mostly known as the father of NFL Commissioner Roger Goodell. But after Kennedy’s assassination, Goodell was plucked from the House to finish out the late Senator Kennedy’s term.

Two years later in 1970, Goodell was running for reelection. But rather than towing the Republican party’s line, he was a vocal critic of the Nixon administration and the war in Vietnam. Not surprisingly, this put him on the president’s famous enemies list, and Nixon’s vice president Spiro Agnew went on the attack.

ARCHIVAL NEWS AUDIO: Referring to him as part of an awful liberal-radical coalition, Vice President Agnew said today that Goodell stimulates the type of leadership which encourages the dissident element in our society.

DAVID: But the problem for the Nixon White House was that Goodell was their party’s candidate, and even if they didn’t like him, did they really want to lose the seat to the Democrats?

Enter the long-shot solution — not only a better candidate in the short run, but also a man whose actions and political positions would eventually be incredibly useful to the master planners.

ARCHIVAL NEWS AUDIO: We want Buckley, we want Buckley! Referred to as the older Buckley, he is James the older brother of columnist William Buckley. Buckley is a more likely prospect for an upset especially if the liberal vote splits. It would provide the kind of victory the conservatives would really savor right here in the heartland of the eastern liberal establishment.

DAVID: James Buckley became the nominee of the Conservative Party of New York — he was a long-shot third-party candidate with a populist message.

ARCHIVAL CAMPAIGN AD: Isn’t it about time we had a senator?

DAVID: Right, James Buckley — man of the people. And by “the people” I mean all us descendants of rich oil families.

ARCHIVAL CAMPAIGN AD: James L. Buckley for Senator.

DAVID: Here was an opportunity for the nascent conservative movement to gain a foothold in American politics. That first flap of the butterfly’s wings led to this candidate, at this moment. And while Nixon chose, at least personally, not to endorse any candidate in the three-way Senate race, behind the scenes, his henchmen and the conservative movement had found a candidate they could bankroll.

ARCHIVAL NEWS AUDIO: Vice President Spiro Agnew campaigned in NY today against the reelection of one of his own party’s candidates, Senator Charles Goodell whom Agnew has denounced as a radical liberal. Agnew spoke at a fund-raising lunch attended mostly by Republicans backing conservative party candidate James Buckley.

DAVID: There were more than a few heavy hitters at that fundraising lunch — bankers, board chairs, businessmen, and the former ambassador to Italy. On election night, their political machinations paid off.

ARCHIVAL NEWS AUDIO: The man who's number one is James Buckley, brother of columnist William F. He is a lawyer and businessman, wealthy and cultivated. He's a minority victor, his two liberal opponents got more than 60 percent of the vote between them.

DAVID: James Buckley became the first third-party candidate elected to the U.S. Senate in three decades. He would only serve one term, losing in 1976. But in that short period of time, James Buckley became the perfect vehicle for the master planners.

Playing the earnest outsider, the staunchly conservative Buckley looked like a real-life “Mr. Smith Goes To Washington.” But in 1975, Buckley worked with D.C. insiders to engineer a lawsuit that would strike the first and perhaps most important blow against America’s new campaign finance laws.

And the thing about Buckley’s lawsuit is — it wasn’t done under the banner of rank corruption. He and his fellow plaintiffs cast the case as a crusade for free speech and third-party rights.

To quote Dr. Ian Malcom from Jurassic Park again:

“JURASSIC PARK”: The butterfly can flap its wings in Peking and in Central Park you get rain instead of sunshine.

DAVID: In this episode, we’ll show how that first flap of a butterfly’s wings — RFK’s assassination — ultimately provided the master planners with an opening in which they could test the legal ideas laid out in the Powell Memo. Along the way, we’ll give you a rare glimpse behind the scenes of how Supreme Court cases are decided — by taking you into the inner sanctum of a notoriously secret branch of government.

I’m David Sirota, and this is Master Plan.

OK, back to 1974 — about four years after Buckley was elected to the Senate. As we heard in the last couple of episodes, Lewis Powell has written his memo, he’s now a one-man sleeper cell on the Supreme Court. Simultaneously, the master planners are hard at work implementing his blueprint for a corporate takeover of American politics. One of the things they need to do to implement Powell’s memo is destroy the laws that prevent them and their financial backers from spending unlimited amounts of money to buy elections, politicians, and political power.

One set of those laws has just been reluctantly enacted by President Gerald Ford. In the wake of the Watergate scandal, he signed several amendments to the Federal Election Campaign Act, FECA, and in broad strokes, those laws did four things the master planners hated:

RICK HASEN: One is imposing contribution and spending limits. One is imposing disclosure requirements. One is creating the Federal Election Commission. And one is setting up a system for public financing of presidential, but not congressional campaigns.

DAVID: That’s Rick Hasen. He’s a professor of law and political science at UCLA, where he also directs the Safeguarding Democracy Project.

When Gerald Ford signed the amendments strengthening FECA , it was held up as proof that America is moving on from Watergate and cleaning up government. But… not so fast.

While Ford was touting the new law in front of the cameras, his White House issued a written statement about FECA that showed how little the administration actually supported the law. The statement from Ford read, “although I do have reservations about the First Amendment implications inherent in the limits on individual contributions and candidate expenditures, I am sure that such issues can be resolved in the courts.”

Hmm… it’s almost as if that was the plan, ever since the meeting about the Powell Memo in Disney World back in episode 4.

On January 2, 1975 — exactly one day after these new FECA amendments went into effect — a group of plaintiffs filed a lawsuit in federal court. The first name on this list of plaintiffs was none other than the one, the only, the third-party conservative darling Senator James Buckley, making the serious charge that FECA was violating the First Amendment. As Rick Hasen told us, this case marked a turning point in American law.

RICK HASEN: It's the foundational case for understanding the Supreme Court's constitutional approach to campaign finance questions. Everything flows from Buckley.

DAVID: The defendant in this case was Francis Valeo, the first director of the brand-new Federal Election Commission created by FECA. Valeo was just a name — he was just the stand-in representative of the government — but his side was tasked with protecting and upholding FECA.

The Buckley v. Valeo case is complicated — but as Rick Hasen explained, the central issue was contribution and spending limits.

RICK HASEN: One of the provisions of the law said that a person could not spend more than $1,000 to independently support or oppose a candidate for office. So if you were living in a big city and you wanted to take out a big billboard in the 1976 election and say, ‘Vote for Jimmy Carter’ and that would cost more than $1,000, that would be illegal.

DAVID: God. I wish we could vote for Jimmy Carter again. Is that an option?

Anyway, Buckley had already taken a vocal stand against FECA in the Senate. In his opinion, those amendments and FECA in general, made it harder for third-party candidates like himself to run for office, let alone win. And as part of his arguments on the Senate floor, he repeatedly cited a man named Ralph Winter.

“GAME OF THRONES”: Winter is coming!

DAVID: Winter was a law professor at Yale at the time. He’d also co-authored a booklet for the American Enterprise Institute — a right-leaning think tank — and that booklet made the radical argument that money in politics did not equal corruption and vote buying, it equaled free speech and free expression. In this booklet, he wrote that quote, “Setting a limit on candidate expenditures sets a maximum on the political activities in which American citizens can engage and is thus unconstitutional.”

Of note — the other author on this booklet? A guy by the name of Bolton.

“OFFICE SPACE”: Michael… Bolton?

DAVID: No — not Michael Bolton. John Bolton. The neo-con lover of war and former advisor to George W. Bush and Donald Trump. The one with the bushy mustache and the uncanny ability to survive more than fifty years in politics, despite being deeply unpopular with just about everyone.

Buckley makes Winter and Bolton’s free speech arguments central to his case to dismantle the new post-Watergate campaign finance laws — and he had an odd assortment of other plaintiffs with him. You might have heard the phrase that politics makes strange bedfellows but, honestly, I’m having a hard time thinking of a weirder combination than the group of plaintiffs attached to this lawsuit.

There’s Buckley, of course, but also Senator Eugene McCarthy, the liberal anti-war Democrat who had challenged President Johnson in the 1968 presidential primary. Then there was the New York Civil Liberties Union, the Libertarian Party, the Socialist Workers Party, and Conservative Party of the State of New York.

Conservatives, libertarians, and socialists joining forces on the same lawsuit?

“GHOSTBUSTERS”: Dogs and cats living together, mass hysteria

DAVUD: These were the obscure underdogs of the political sphere. But, of course, there was a master planner lurking in the background. And after hearing about him in the last episode, would it surprise you to learn that Charles Koch was bankrolling the lawsuit? It sure as shit didn’t surprise me. Koch wanted to be able to give unlimited money to his presidential candidate of choice — a guy named Roger MacBride from the brand-new anti-government Libertarian Party.

I’m not sure Koch had enough money to propel MacBride to victory — he won 0.2 percent of the popular vote and no electoral college votes. But then MacBride went on to create the Little House on the Prairie TV series, so maybe it was a win after all?

These plaintiffs didn’t see the new post-Watergate campaign finance laws as a way to stop donors from buying votes, elections, and legislation. No, they saw FECA as an unconstitutional assault on donors’ right to free speech. Isn’t it nice when people can find common ground?

Here’s political science professor Rick Hasen explaining the plaintiff’s argument.

RICK HASEN: Not everybody is talented, they can't make their own TV ads. And so how did they try to participate in elections? With money. And if you limit money, then you're basically favoring some people over others.

DAVID: The New York Civil Liberties Union argued that these laws were a form of overreach and provided a way for the government to stifle political speech.

Senators Buckley and McCarthy saw the laws as unfairly beneficial to incumbent candidates. They had both been outsider insurgent candidates, meaning they didn’t have the financial support of the two major parties’ political machinery. Instead, both men depended on money from wealthy donors to kick-start their campaigns. Buckley argued that FECA set such low spending limits that it made it much harder for an unknown outsider candidate like himself to compete.

RICK HASEN: If you want to campaign for office, you want people to vote for you, you're running for Congress, it's going to cost money to do it. If you say that candidates are limited in how much money they can spend, or a person is limited in how much money they could contribute for political speech, that certainly affects the rights of speech and association.

DAVID: Despite this argument, the first federal court that heard the case upheld FECA, on the grounds that it prevented elections from becoming auctions sold to the highest bidder.

The ink was barely dry on that decision when Buckley and his menagerie of plaintiffs appealed to the Supreme Court, which heard the case on November 10, 1975 — eight days after I was born. Imagine an abnormally warm day just weeks before Thanksgiving. While my mom is taking me home in a swaddle in New Haven, Connecticut, groups of lawyers, defendants and plaintiffs made their way up the marble steps, past the statues of The Contemplation of Justice and Authority of Law, through the stately Greco-Roman columns and sculpted bronze doors into the Great Hall of the US Supreme Court. They file into the Court Chamber, and arrange themselves at tables in front of the Bench where the Justices sit.

Chief Justice Warren Burger — a Richard Nixon appointee — presided.

ARCHIVAL SUPREME COURT AUDIO (WARREN BURGER): We will hear arguments today in Buckley against Valeo and the others. Counsel, you may proceed whenever you are ready.

DAVID: Arguing first on behalf of Buckley is Ralph Winter — the same man who had written that booklet about money and speech, and the same man that Buckley had cited in his Senate speeches against the FECA amendments.

ARCHIVAL SUPREME COURT AUDIO (RALPH WINTER): The burden of the FECA thus fall heavily on those challenging the status quo by impairing the ability of challengers both to raise and spend money. This legislation makes it acutely difficult for them to overcome the exposure incumbents already enjoy.

DAVD: Money, he’s saying, allows candidates to reach their voters. Without it, their speech is stifled — which he says is a clear violation of the First Amendment.

ARCHIVAL SUPREME COURT AUDIO (RALPH WINTER): I do not think there could be any question about this. If there were five restaurants in the town and someone was about to open a new one, an ordinance severely limiting the amount of newspaper advertising restaurants might buy, would be recognized for what it is, an attempt by the existing restaurants to freeze out newcomers.

DAVID: Arguing the other side, in favor of protecting FECA and upholding contribution and expenditure limits, was Archibald Cox. Yes, that’s the same Archibald Cox who led the Watergate investigation.

ARCHIVAL SUPREME COURT AUDIO (ARCHIBALD COX): The purposes as we see them are first, to protect the honor and integrity of government operations in both the legislative and executive branches against the corrosive influence of large contributions, the pressure to raise large money, and the resulting sense of indebtedness which of course does not affect every contribution, but there appear to have been too many of that character.

DAVID: He’s referring, of course, to the literal bags of cash delivered to Nixon’s 1972 campaign — the illegal contributions that he prosecuted during Watergate and that we heard about back in Episode 2. Cox, along with the other lawyers on the government side, pointed out that contributing money to campaigns wasn’t protected speech, and neither was campaign spending. They argued that money doesn’t buy speech, it buys votes… which is illegal. They argued that unchecked money in politics caused the kind of corruption America had just seen during Watergate… it bought votes and influence and government favors, and therefore the Constitution allowed it to be regulated.

Now you just heard me say Cox was defending FECA on behalf of the government. But remember — the Ford administration — aka the government — didn’t actually like FECA. Here’s Rick Hasen again.

RICK HASEN: People who are working for the federal government, some of them side with Buckley and the plaintiffs.

DAVID: Essentially, Ford allowed his henchmen to undermine the defense of the law that they were supposed to be upholding.

RICK HASEN: And in fact, the government ends up filing two briefs in the case, one brief on behalf of the Federal Election Commission, that defends the law, and then one brief from the Solicitor General…

DAVID: The Solicitor General — the number three at the Department of Justice whose main job is to defend government agencies at the Supreme Court. And at the moment in time, the Solicitor General was Robert Bork.

Yes, that Robert Bork. The only guy in the Justice Department willing to follow Nixon’s orders and fire Archibald Cox during Watergate’s Saturday Night Massacre. Now as Ford’s Solicitor General in the campaign finance case, this was something of a rematch and Bork was again the hatchet man, taking the unprecedented step of filing a brief…

RICK HASEN: …that says it is not taking a position but essentially argues that big chunks of the law are unconstitutional.

DAVID: In essence, Bork was winking and nodding to the court, telling the justices that “Hey, the president signed this, so we’re technically obligated to defend this thing, but really, we want you to knock it down.”

And that’s exactly what the court did on January 30, 1976.

At first, the ruling seemed to stand up to the new campaign finance law.

ARCHIVAL SUPREME COURT AUDIO (WARREN BURGER): The Court holds that the contribution limits do not directly impinge upon the rights of individual citizens and candidates to engage in political debate and discussion.

DAVID: But then came the right hook to the face.

ARCHIVAL SUPREME COURT AUDIO (WARREN BURGER): The Court holds that the expenditure limitations are violative of First Amendment guarantees and they are unconstitutional.

DAVID: Boom — down goes a big part of FECA.

Basically, the Supreme Court upheld the contribution limits, saying they only imposed a minor restriction on free speech. But the court also said that if the government limited how much money a candidate or a special interest group could spend on something like a billboard or TV commercial, that was a direct infringement on their ability to communicate. So they struck down expenditure limits.

This all may seem like some small technicality, but it was huge. James Buckley and his fellow plaintiffs had convinced the United States Supreme Court to agree, in part, to the master planners’ radical argument that money wasn’t a tool of corruption that could be regulated… money was now a form of constitutionally protected speech.

This precedent was everything — it would become the cornerstone of the entire master plan — a way to destroy all campaign finance and anti-corruption laws, with the blessing of the highest court in the land.

Around the same time that the Supreme Court heard arguments in the Buckley v. Valeo case, justices were also dealing with two other cases about the First Amendment and freedom of speech — these were cases about abortion and drug prices that didn’t seem related to campaign finance at all.

“JURASSIC PARK”: The butterfly effect. You get rain instead of sunshine.

DAVID: So let’s start with abortion.

An alternative newspaper in Charlottesville, Virginia, was running advertisements for abortions that were legal in New York but not legal in Virginia. The editor of the newspaper, Jeffrey Bigelow, was charged and convicted of advertising abortion services, which violated Virginia law.

Bigelow’s case eventually ended up in front of the Supreme Court in 1975 where he was represented by the ACLU and they argued that the conviction violated the First Amendment.

Watching this case very closely was a guy by the name of Alan Morrison, who worked for Ralph Nader’s consumer protection group Public Citizen. Morrison was interested in the Bigelow abortion case because he thought it might be an opportunity to create a new First Amendment protection. In an interview, he told us that he was arguing for a consumer’s right not just to speak, but to listen to new information.

ALAN MORRISON: And I saw this as a case in which we should file our brief testing the waters on the listener theory.

DAVID: So Morrison filed an amicus brief in the abortion case outlining his argument.

ALAN MORRISON: You are depriving listeners, Virginia citizens, who want to go to New York to have an abortion where it's perfectly legal. And Virginia has no basis for keeping you out of doing that.

DAVID: Morrison’s brief swayed the opinion of Justice Harry Blackmun, who would use this argument when he wrote the Supreme Court’s majority opinion. Morrison’s goal of creating a new precedent had worked like a charm.

He then turned to the case he was really interested in as a consumer rights attorney — a case in which a woman named Lynn Jordan was trying to challenge the laws that prevented pharmacies from advertising prescription drug prices. Jordan had had a hysterectomy and required all kinds of medications, but state laws prohibited pharmacies from advertising drug prices on the grounds that that kind of advertising would somehow make pharmacists “less professional.”

ALAN MORRISON: There were about 34 states that had laws like Virginia that forbade the advertising of the price of prescription drugs. And the Federal Trade Commission had demonstrated conclusively that the prices of prescription drugs in those states were higher than it was elsewhere.

DAVID: So with Morrison’s help, Lynn Jordan sued.

In this case, the state of Virginia insisted that such laws were allowed because product advertisements weren’t political speech, they were commercial speech, which wasn’t protected under the First Amendment.

That’s where Morrison whipped out the recent win in that Bigelow abortion case — the one about listener rights

ALAN MORRISON: We built on Bigelow and said that the First Amendment doesn't distinguish between commercial speech and non-commercial speech.

DAVID: Speech that he argued should be protected under the First Amendment because it allowed the public to be more informed. They, as citizens and consumers, had a right to listen and a right to know. Once again, the argument found an ally in Justice Blackmun, who delivered the ruling in May 1976.

ARCHIVAL SUPREME COURT AUDIO (HARRY BLACKMUN): We further hold that so-called commercial speech is not wholly outside the protection of the First and Fourteenth Amendments. The individual consumer and society, in general, may have strong interests in the free flow of commercial information.

DAVID: The ruling was hailed in the press as another big Ralph Nader-backed win for consumers.

ARCHIVAL NEWS AUDIO: Consumer groups won a major victory today before the Supreme Court, one they say could eventually lead to lower prices for funerals and eyeglasses and even medical and legal services.

DAVID: Hooray! People who had been kept in the dark about prescription drug prices suddenly had the information they needed to make decisions that could save them money. They were thrilled. This was a huge victory for Alan Morrison, Ralph Nader, and consumers’ rights. Score one for the underdog, the little guy, the champion of the people. Play us some celebration music baby, this is a huge victory!

Oh wait… hang on… is that a fax machine? I didn’t even know I had one of those…

Huh… this is from my producer… oh shit, no way. Hey — cut the music.

OK, let me amend what I just said: This would end up not being a huge win. In fact, it was the opposite.

Sure, this may have been a win for some little-guy consumers… but for campaign finance and corruption, the ruling was about to be transformed into a powerful weapon for the biggest of big-guy oligarchs.

The law of unintended consequences was about to kick in, with a nudge from the Supreme Court Justice… Lewis Powell. Remember him? Powell had initially argued that there was “no constitutional right to know” but would change his mind when faced with a golden opportunity to further his master plan.

Okay, let’s review. It’s 1976. The master planners had used the accidental but fortuitous election of Senator James Buckley to get the Supreme Court to validate a previously radical theory that money wasn’t a tool of corruption to buy votes, but was instead a constitutionally protected form of speech.

ARCHIVAL SUPREME COURT AUDIO (WARREN BURGER): The Court holds that the expenditure provisions, the expenditure limitations are violative of First Amendment guarantees and they are unconstitutional.

Then Ralph Nader’s organization — a group that is supposed to be the polar opposite of the master planners — goes to court on behalf of consumers and gets the court to say that corporations have at least some of the same First Amendment protections that individuals do.

ARCHIVAL SUPREME COURT AUDIO (HARRY BLACKMUN): We further hold that so-called commercial speech is not wholly outside the protection of the First and Fourteenth Amendments.

So now let’s turn to the final case in our lineup — the one that ultimately features the master planner you heard about in the last two episodes: Lewis F. Powell of Powell Memo fame.

It’s still 1976 — America’s bicentennial!

ARCHIVAL AD AUDIO (JIMMY STEWART): Happy Birthday, USA!

DAVID: We’re in Boston, Massachusetts where another important legal case was building steam in the Bay State’s courtrooms.

ADAM WINKLER: The First National Bank of Boston v. Bellotti really began as a battle between Massachusetts lawmakers and one of the most influential businessmen in Boston, Richard Hill, who ran the First National Bank of Boston.

DAVID: That’s Adam Winkler — he’s a professor of law at UCLA, and he wrote extensively about this case in his book, We The Corporations. And while you might not be familiar with this case, you should know that it paved the way for Citizens United. If RFK’s assassination and Lynn Jordan’s hysterectomy are flapping butterfly wings, this case is Mothra.

In 1976, Massachusetts passed its own state statute expanding on the amendments to FECA that had passed in Washington, D.C. Essentially, the new Massachusetts law barred corporations from making contributions or expenditures to influence the voting on any ballot initiatives, unless it was an initiative that clearly affected that particular business.

ADAM WINKLER: Any ballot measure on individual taxation would be automatically deemed immaterial to their business.

DAVID: Probably not coincidentally, that same year, there was a proposal to put a constitutional amendment on the 1976 Massachusetts state ballot that would raise taxes on the wealthy.

ADAM WINKLER: And lawmakers in Massachusetts wanted to institute a graduated income tax basically say that individuals who made the most money paid relatively higher percentage of their income in taxes.

DAVID: Individuals like Richard Hill and other high-powered executives. Which sounds reasonable, right? Rich people paying their fair share? What a concept!

Suffice it to say, Richard Hill and his cronies weren’t stoked about this idea. But under Massachusetts' new law, they were barred from spending any money out of their corporate treasuries on influencing the outcome of this ballot measure. Never mind that they could still spend their own money — just not the company’s much larger pile of money.

They weren’t too happy about this. And what do good Americans do when they’re unhappy? They go to court.

ADAM WINKLER: Richard Hill took it to court and he argued in court that this Massachusetts law that restricted corporations from spending money on these individual tax-related ballot measures was unconstitutional under the First Amendment.

DAVID: Hill and First National Bank lost in the Supreme Court of Massachusetts. So they appealed this case to the U.S. Supreme Court, which heard it in 1977.

Representing Hill and the other rich guys was Francis Fox, who reminded the Court that justices had recently ruled that money isn’t corruption…

ARCHIVAL AUDIO (FRANCIS FOX): Money is speech, and speech is protected unless and until it comes up against a compelling state purpose and carefully drafted legislation, which serves that purpose in the least restrictive manner available. In other words, the prohibition should be made to justify itself, the focus should be on the prohibition, the corporate speaker should not be made to justify his prospective speech.

DAVID: Sidenote — you may remember that in his memo, Lewis Powell suggested that corporations take a page out of the lefty liberal playbook and file…

LEWIS BLACK AS LEWIS POWELL: …Brief, amicus curiae, in the Supreme Court…

DAVID: …to influence their decisions.

No surprise then, that corporate America was more than happy to file amicus briefs on behalf of Richard Hill’s First National Bank of Boston and that two of those amicus briefs came from groups that might sound familiar: the U.S. Chamber of Commerce — for whom Lewis Powell wrote the Powell Memo — and the Pacific Legal Foundation, which had been one of the legal groups inspired by the Powell Memo.

But back to our case. Representing Massachusetts is that state’s Attorney General, Francis Bellotti. He’s simply the name on the case but it’s the Massachusetts Assistant Attorney General, Thomas Kiley, who’s defending the state in court. The main thrust of his argument is that businesses are NOT people and therefore do not have first amendment rights.

ARCHIVAL SUPREME COURT AUDIO (THOMAS KILEY): We start first from the proposition though that corporations do not have first amendments rights per se that they are not natural persons and that they may be restricted to protection of the rights that are contained in their charters.

DAVID: The justices heard the oral arguments and then, a few days later, they met in what’s called a conference. Now, the Supreme Court is a notoriously secretive institution. Not Vatican level, but there’s a fair amount that goes on behind the scenes that the public knows very little about. Here’s Adam Winkler again.

ADAM WINKLER: The conference is a closed-door meeting of the justices. No one else is allowed in, no law clerks or secretaries or messengers. It's just the justices and they go around the room in a set order, with the chief justice being the first to speak and then every other justice coming in order of seniority, and they state their view on the case and how they expect to vote.

DAVID: So the justices meet, they vote, and they assign someone to write the opinion. Typically, over the course of some months, they’ll pass around some drafts and agree to a final opinion, which usually reflects their votes in the initial conference.

But that's not what happened in First National Bank of Boston v. Bellotti. Normally, we wouldn’t know what went on in this conference but in this case, thanks to Adam Winkler, we got a rare glimpse of the messy behind-the-scenes. For his excellent book, We The Corporations, Adam scoured the papers of the Supreme Court justices and what he uncovered in the hundreds of pages of letters, memos, and messages illuminated what happened next.

ADAM WINKLER: As the justices went around the room at the conference, the majority of justices did not think that the court had to say that corporations have the same free speech rights as people. Instead, they supported a narrower view.

DAVID: They thought that Massachusetts’ law needed to give corporations the opportunity to show that the tax measure on the ballot affected their businesses. It might, for instance, make it harder for corporations like First National Bank to recruit executives if those execs would have to pay higher income taxes. But a limited ruling like that was as far as most of the justices were willing to go. Initially, they weren’t willing to go further and say that corporations had the exact same First Amendment rights as citizens.

However, one holdout on the court saw his chance. We’re gonna need some dark, scary music.

…no, no, that’s just creepy. I want listeners to really feel this…

…no, no, no, not like that! Just play the darkest, scariest song you can find from 1977.

There. That’s perfect. Let’s welcome back to the stage: The O.G. master planner himself, Justice Lewis Powell.

In the justice conference about Belotti, Powell wants to go big. Really big. He didn’t want a narrow ruling — he wanted a decision that would blow the doors off of free speech limitations for corporations permanently.

ADAM WINKLER: Powell argued that Massachusetts' law should be struck down because corporations had the same free speech right as individuals, that Massachusetts could not limit corporations to only spending on things that were material to the business. That it was up to the business to decide what to spend its money on and lawmakers had no role to play in that decision. It was only Powell who had that very broad perspective at the conference and the other seven justices who agreed to strike down Massachusetts’ law thought instead that the court should rule narrowly.

DAVID: One of those seven other justices — William Brennan — was assigned to write the court’s final ruling, which would strike down the Massachusetts law but only in a narrow fashion.

But as Brennan started to write, he ran into a problem. The more he thought about it, the more he became convinced that this kind of ruling wouldn’t be effective — that the broader question about whether corporations have the same political speech rights as individuals would simply show up again, in another case.

ADAM WINKLER: And on that broader question, Brennan was clear. He thought corporations did not have the same political speech rights as individuals and as a result, he said to the other justices, “I'm not the right one to write this opinion.”

DAVID: Justice Brennan issued a written statement to his colleagues, laying out the reasons for his crisis of confidence. It was kind of an “oh shit” moment.

In the margins of his copy of Brennan’s letter, Justice Powell wrote “Wow!” with an exclamation point — expressing his surprise at this turn of events. Of course, it was also an amazing opportunity. Powell wrote another memo (man, this guy loves memos). In this new memo to the other justices, he subtly pitched himself as the replacement to write the court’s majority opinion that would become the law of the land.

ADAM WINKLER: Powell was eager to expand the political speech rights of corporations. Massachusetts is trying to prevent corporations from doing what he thinks is the most important thing they can do which is to get politically active and to fight for their rights and to defeat the rising tide of business regulation and what Powell saw as nothing short of socialism.

DAVID: Chief Justice Burger let Powell write the opinion. But remember, Powell, who argued that the entire law should be struck down on the grounds that corporations have free speech rights, was still in the minority on the court.

Justice Byron White had always felt the Massachusetts law should be upheld. He was joined by Justice Brennan, who no longer supported the idea of even a narrow ruling. Justice Thurgood Marshall thought corporations could be restricted in political spending. Justice Rehnquist argued that corporations had no political speech rights at all. That meant four justices against Powell. And Chief Justice Burger had also started to waver, wondering if striking down the Massachusetts Law would undermine federal anti-corruption laws.

This was turning into a real nail-biter of a court case. Powell was in danger of losing the majority.
But then, a lightbulb went off in Powell’s brain.

He remembered that Virginia Pharmacy case — the one we just discussed earlier in the episode.

In his genteel, Southern manner, Powell referenced the case and reminded his fellow justices that they literally just voted for that ruling, which said the public has an inherent right to hear corporate speech. So by that logic, didn’t the voters of Massachusetts also have a right to hear what the First National Bank of Boston and other businesses had to say about ballot measures?

ADAM WINKLER: So Powell uses Blackmun's argument from Virginia Pharmacy to secure his majority and in the end, radically rewrite American constitutional law.

DAVID: Powell convinced just enough justices — including Justice Burger — to join him in a 5-4 ruling that said that the Massachusetts restriction on political contributions by corporations violated the First Amendment and was thus unconstitutional.

ADAM WINKLER: …Giving corporations a broad and expansive right to spend their money on politics and elections. That was a decision that would really radically transform American democracy.

DAVID: The author of the Powell Memo had been alone in the initial conference and now this master planner had forever enshrined his own beliefs into a law that favored corporations — not people.

Here’s Justice Powell reading the decision.

ARCHIVAL SUPREME COURT AUDIO (LEWIS POWELL): The First Amendment's primary concern, and therefore, the Court's concern, always has been the preservation of free and uninhibited dissemination of information and ideas.

DAVID: Especially if that information and those ideas conform to the Powell Memo, amiright?

ARCHIVAL SUPREME COURT AUDIO (LEWIS POWELL): If the restrictive view of corporate speech taken by the Massachusetts court were accepted, government would have the power to deprive society of the views of corporations on all issues other than those that could be proved to affect adversely their property or business interest.

DAVID: How sad for us if we were to be deprived of the views of corporations… You can’t hear it but I’m rolling my eyes.

Powell elaborated further on this point in the final written opinion, stating quote, “It is the type of speech indispensable to decision-making in a democracy and this is not less true because the speech comes from a corporation rather than an individual.”

Thanks to Powell’s ruling, corporations now had even more first amendment rights and the consequences have been enormous.

ADAM WINKLER: The principles established by the Bellotti case, that corporations effectively had the same First Amendment speech rights as individuals, that it was inappropriate for businesses to be limited in political spending campaigns would be very very influential and completely transform American jurisprudence over time.

DAVID: Put another way, the case created the principle infamously summarized by Massachusetts’ future governor Mitt Romney.

MITT ROMNEY: They brought us binders full of women.

DAVID: Well, yes, he said that too, but I meant this:

MITT ROMNEY: Corporations are people, my friend!

DAVID: Boom shakalaka. You wanted me to show you the money, well, there it is. There’s your payoff. Lewis Powell had successfully blown open the floodgates for the kind of corporate spending that his memo said was necessary for a Big Business takeover of the country.

We started the 1970s with a push to get money out of politics. We end it with a flood of cash. And Buckley, especially, proved to be the biggest crack in the dam. That decision allowed candidates to spend as much as they wanted. No spending limits, provided you could get your hands on the cash.

Of course, there were plenty of wealthy people and corporations who had the kind of cash that could buy elections. But the Buckley decision had ensured that candidates were only allowed to take a limited amount.

So money found a different way to flow. It would go to the master planners’ supposedly independent organizations that could spend unlimited amounts of cash on the candidate’s behalf, provided these organizations weren’t explicitly coordinating with the candidates they were supporting. Which, of course, they would never do.

Yeah, it was bullshit, but legally speaking, these organizations could insist they didn’t explicitly coordinate. Not surprisingly, these independent expenditures became the way to get money into the system and buy elections.

ARCHIVAL NEWS AUDIO: Independent organizations that support Reagan can spend… and spend… thanks to a loophole in the campaign law, there is no limit on what these independent organizations can spend.

DAVID: These independent organizations, otherwise known as political action committees, or PACs, became the vehicle for getting money into campaigns — and they were growing in number. In 1974, there were about 600 PACs and only 89 were affiliated with corporations. By 1980 — after the Supreme Court’s Buckley and Bellotti rulings changed the game — the number of PACs nearly quadrupled to 2,300 — and nearly half of them had corporate ties.

This is simplifying things a bit, but the tide of corporate spending on political activities rose exponentially in that six-year period… and no one with any power seemed to be interested in doing anything to stop it.

Except for one guy. A guy who looked like the opposite of the hippie liberal reformers and their legions of lefty activists. This was a combat veteran and war hero. A conservative Republican from a super-conservative state. Burned in a campaign finance scandal, he would spend the rest of his life crusading against the master planners’ scheme to legalize corruption. He was pissed — and he was going to take his fight to both parties’ voters.

ARCHIVAL SPEECH AUDIO (JOHN MCCAIN): Those of us privileged to hold a public office have ourselves to blame for the sickness in American public life today, and we are the defenders of a campaign finance system that is nothing less than an elaborate influence-peddling scheme in which both parties conspire to stay in office by selling the country to the highest bidder.

DAVID: And this guy wasn’t just complaining about the problem — he had a plan of his own.

That’s next time on Master Plan.