Theodore Olson served as legal counsel to President Ronald Reagan during the Iran-Contra affair and as United States Solicitor General under President George W. Bush. In 2000, Olson represented Bush in Bush v. Gore. In 2013, Olson successfully argued against Proposition 8, California’s ban on same-sex marriage, before the Supreme Court. Olson is currently a partner at the law firm Gibson, Dunn & Crutcher.
Brown Political Review: In hindsight, would you have advised President Reagan any differently on the Iran-Contra affair?
Theodore Olson: After he left the presidency, I was a private counsel for him with respect to Iran-Contra. I am convinced, as the special prosecutor in that case ultimately was, that President Reagan had done nothing illegal. He had been honest and forthright with the congressional investigators, the Tower Commission, which was created to investigate those facts, and the independent counsel special prosecutor that was appointed to investigate him.
BPR: What shaped your views on same-sex marriage and led you to join with David Boies, the opposing lawyer in Bush v. Gore, to argue against Proposition 8?
TO: First of all, I think that Republicans are no more monolithic than Democrats are. Conservatives are more likely to oppose same-sex marriage, but that’s changing. I grew up in California, and I have never felt that it is right to discriminate against individuals based on their sexual orientation. I’ve always felt that we, as the human race, are committed to the idea that all persons are created equal and equally endowed with the right to liberty and the pursuit of happiness. I felt, when I was first contacted about this case, that it was the right thing to do, and I feel even more strongly about my decision now. When we took that case on, there were only three states that permitted marriage between persons of the same sex; now there are 36 or 37, depending on where you put Alabama, and public opinion has changed quite dramatically, such that the majority of Americans now support the right for individuals to have that happiness.
BPR: Do you believe that your work on same-sex marriage has pushed the GOP to change its stance on the issue in the long run?
TO: I don’t know whether it is my work necessarily, but I do believe that Boies and I set out to have an impact on public opinion. We tried to get the American people to understand the lives that gay people live and the damage that is done by denying them the opportunity to get married. We tried to get Americans to understand the fact that same-sex marriage is allowing two people to form a stable relationship and become a respected part of our community. The more people hear that message, and the more they know gay people or lesbians who have the same aspirations as the rest of us do, the more they change their minds.
BPR: Do you think the consequences of the Citizens United decision have been good for the country?
TO: As far as Citizens United is concerned, the First Amendment protects individuals’ free speech, whether they speak individually, form partnerships, form political action committees or speak through corporations like the New York Times or the NAACP. Speech having to do with the election of public officials is really the most important thing, and to the extent that government puts limitations on how much people can speak, that’s simply inhibiting discourse about the most important political activity in this country.
BPR: Can you explain how the concept of political spending is equivalent to a form of speech?
TO: Can you convince very many people without a microphone? You cannot get your message out to the American people if you are running for national or statewide office without a means of communication that exceeds an individual’s personal voice. It helps to have a microphone, and it helps to have the ability to put your message out to the people on television or on radio. The argument that those means of enhanced communication are not speech overlooks all of the cases that the Supreme Court has decided on from the beginning of time, which count books, television, billboards, loudspeakers and so forth as forms of speech.
BPR: Putting aside the legal aspect of Citizens United, how do you think the decision has ultimately affected the current political process?
TO: I don’t know exactly; it is very difficult to measure that. The person who spends the most money doesn’t necessarily win the election. Eric Cantor, who was the minority whip in the House of Representatives, was beat in a primary election by a person he outspent 26 to 1. If you start putting limits on how much people can spend to run an election campaign, you provide an enormous advantage to incumbents. Incumbents have the power of their office, the power of their name recognition, and they are almost always going to win elections unless you give their opponents an opportunity to communicate ideas that are different. The more people have an opportunity to hear different points of view, the better off we are.
BPR: Though the Citizens United decision does give an advantage to nonincumbents, does it not also give an advantage to the wealthy?
TO: When you say wealthy, do you include labor unions? They amass immense amounts of money, and I think the biggest spender in the last couple of elections was the Service Employees International Union, who — along with other unions — not only used vast amounts of union dues for political purposes, but also put its members on the street in registration and get-out-the-vote drives. It has always been true that people who have more resources have advantages in elections. People who are incumbents, people that have famous names like “Kennedy,” people who are good looking and highly articulate like Ronald Reagan and people related to victors from a previous election have an advantage. If the government took to regulating the playing field by limiting the amount that people can spend, they would have to limit the advantage of incumbency, limit the advantage of newspapers and so on. I think the First Amendment tells the government to stay out of the issue and let the people decide.