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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Sun Jan 24, 2010 3:12 pm 
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From Gerard Magliocca:
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While I said the other day that I don’t know a lot about campaign finance reform and thus probably shouldn’t comment on Citizens United, I’ve decided — in typical academic fashion — not to let my ignorance stand in the way of my opinions.

1. I hope this case dispels the myth that there are any real “judicial minimalists.” All that means is “I don’t have five votes to reach the result that I want.” When five votes are present, the Court cuts through the narrow grounds for decision like a hot knife through butter. It’s happened before. It’ll happen again.

2. Of course treating a corporation as a person is a legal fiction. But so is the idea that corporations are a monolithic entity. Some corporations want patent reform. Some don’t. Some corporations support more oil drilling. Others want more subsidies for wind power or ethanol. The notion of corporate power makes sense in some instances (e.g., hiking the corporate tax rate) but in most cases it’s a wash.

3. I am not persuaded that lots of lobbying through money is the cause of policy gridlock. If that were true, then presumably social issues (which moneyed interests don’t care about) would be easier to resolve. Doesn’t seem to be the case for abortion, gay rights, or other similar topics though.

4. Filibuster reform would do a lot more than campaign finance reform to make our democracy healthier. Decades of campaign finance regulation accomplished very little.

5. Don’t I have a right to hear what corporations have to say about candidates or election issues? I might learn something useful, so long as I know who the source is and can make a credibility assessment.

6. Most corporations avoid politics because it could alienate potential customers. Thus, I don’t think that the predicted “flood” of corporate money into campaigns will actually materialize.

7. Note to Keith Olbermann: Citizens United is not the worst decision since Dred Scott. Good job insulting Japanese-Americans from WWII, kids who had to sit in segregated schools, and women who were sterilized because they were mentally handicapped. Your Howard Beale impersonation, though, continues to be right on target.


http://www.concurringopinions.com/archi ... think.html

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 5:15 pm 
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sisyphus wrote:

Simply because, as I am seeing here, you dislike "Big" corporations, and I suppose, the people at the core, is no reason to limit their constitutional right "To assembly" for political statement.

The fact is that I work for a big corporation, and I have no problem with big corporations. I DO have a problem finding the clause in the Constitution of the United States that grants citizenship to legal fiction. Obviously you're having the same problem, as I asked you twice to cite that clause, and you haven't done so.[/quote]

The first amendment, as cites the SC.

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That group of folks were quite free to make any political statement they wanted before this decision. The only changes made by this decision was to grant citizenship to corporations.


And you seemingly have a problem understanding what corporation is.

I suppose you want the same restraint on say, the PSEA or the SEIU?

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 5:36 pm 
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"While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics." ~ Justice Stevens

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 5:49 pm 
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I'd expect that from Stevens.

His views mirror those in here who seem to view "corporations" with soul, or at the least conjure up visions of "a guy" - presumably with a thick cigar, balding and a black overcoat - comingling with others in a smoke filled room figuring out how to "screw" the little guy, and who they are giving money to.

Do you have the same problem with George Soro's funneling millions to his favorite causes and candidates?

Free speech is free speech. It is guaranteed, and does not need meddling know it all's telling us how much is too much.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 6:04 pm 
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These disagreements can easily be ended. If we really want to know the definitive answers, we need only ask Sarah Palin.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 6:34 pm 
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Election law expert Rick Hasen weighs in: http://www.slate.com/id/2242209/

A few quotes:
Quote:
It is time for everyone to drop all the talk about the Roberts court's "judicial minimalism," with Chief Justice Roberts as an "umpire" who just calls balls and strikes. Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image.


Quote:
Though the decision deals with federal elections, expect state and local corporate and union spending limits to be challenged, and to fall, throughout the country. There are many responses to Justice Kennedy's reasoning. He wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court? Justice Kennedy himself thought so in last year's Caperton case. And yet he runs away from that decision in today's ruling. Justice Kennedy acknowledges that with the "soft money" limits on political parties still in place, third-party groups (which tend to run more negative and irresponsible ads) will increase in strength relative to political parties. And that possibility raises the real chance Congress will repeal the "soft money" limits, thereby increasing the risks of quid pro quo corruption.


Quote:
What is so striking today is how avoidable this political tsunami was. The court has long adhered to a doctrine of "constitutional avoidance," by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute. That's what the court did in last term's voting-rights case—in fact, going so far as to adopt an implausible statutory interpretation to avoid overturning a crown jewel of the civil rights movement.

What we have in Citizens United is anti-avoidance. Kennedy's majority had to go out and grab this one. Justice Stevens' dissent lists three ways the majority could have skirted the constitutional question. One of them would have been to say that McCain-Feingold does not apply to video-on-demand. This and the Stevens' other options are all plausible interpretations, certainly more plausible than the tricky footwork in the voting rights case. Instead, here the court went out of its way to overturn its own precedent, in violation of its usual rule of stare decisis, which calls for respecting past rulings for the good of reliable law-making. And it did so violating its usual rule, which it cited even yesterday, that it does not generally reach issues not raised in the initial petition to the court.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Mon Jan 25, 2010 8:57 pm 
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Substitute2 wrote:
We now have an activist supreme court, unless the definition of that phrase has changed.

We now have a decision that no matter your politics has made a huge decision that will adversely effect our elections and make democracy less a fact in America. Big business will now completely take over. No one will be able to get elected without their stamp of approval because they now can and will spend huge amounts to get their guys elected. While for years politicans have been unresponsive to Americans, they will surely now carry the water of those who get them elected. If you don't believe that, well just saying....

Thanks W for the activist court.


Well Mike, maybe I'm not so stupid after all.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Jan 26, 2010 10:45 am 
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First, no one called you stupid. That is you calling yourself that.

Second, it is one opinion. One.

Third, for the record, the ACLU, the Cato Institute, the NRA, the AFL-CIO. the US Chamber of Commerce, the American Civil Rights Union, and the Institute for Justice all filed amicus briefs in favor of finding the law unconstitutional. That list pretty much covers every part of the political spectrum. These groups do not agree on anything. This was not a left-right issue. Guess that trumps your one guy.

Fourth. A review of corporate political spending shows... ta da... a 50/50 split in contributions (versus a union split of 92 - 8 %). About what I expected.

Free speech is free speech. Period. No ifs ands or buts.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Jan 26, 2010 11:59 am 
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ZelieMike wrote:
First, no one called you stupid. That is you calling yourself that.

Second, it is one opinion. One.

Third, for the record, the ACLU, the Cato Institute, the NRA, the AFL-CIO. the US Chamber of Commerce, the American Civil Rights Union, and the Institute for Justice all filed amicus briefs in favor of finding the law unconstitutional. That list pretty much covers every part of the political spectrum. These groups do not agree on anything. This was not a left-right issue. Guess that trumps your one guy.

Fourth. A review of corporate political spending shows... ta da... a 50/50 split in contributions (versus a union split of 92 - 8 %). About what I expected.

Free speech is free speech. Period. No ifs ands or buts.

ZM

I can't say I'm terribly surprised that advocacy organizations who petition the government on a regular basis would want this particular law found unconstitutional. They obviously do not want the McCain-Feingold Act to be extended to their activities on the off-chance that they decide to accept corporate funding, like Citizens United did. They had nothing to lose and a fair amount to gain in advocating for the invalidation of McCain-Feingold. So to say that the decision was correct because the aforementioned amici covered the political spectrum is specious. The aforementioned amici supported the laws invalidation for their own selfish interests: they want more money with which to conduct their activities.

The fact is that SCOTUS went way beyond what it needed to do in order to give Citizens United a win. They decided a constitutional issue that did not need to be decided, which goes against the principle of constitutional avoidance that has been with the Court since the days of Chief Justice John Marshall. I don't know what the impact of this case will have on democratic elections, but I do know that anyone who claims that this was not an activist decision is talking out of his ass. As Hasen notes, the majority reached out and grabbed this one. It is pretty clear that this Court is bent on shaping constitutional law in its image.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Jan 26, 2010 1:23 pm 
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Or simply restoring it to its original intent, as it was distorted by past decisions.

It goes both ways.

I did not use these examples to "prove" anything other than an offset to your fellows noted OPINION.

And, again, looking at the monies spent, you will see a 50/50 split. It is historical and consistent, which makes full sense in light of the fact that corporations do not control government, government controls corporate response. So, corporations, especially large ones with a huge body politic that they do NOT want to piss off, say about 50% of their market, will send monies in accordingly. They will, and do, play both sides of the isle.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Jan 26, 2010 2:46 pm 
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ZelieMike wrote:
Or simply restoring it to its original intent, as it was distorted by past decisions.

It goes both ways.

As a general matter, I find it hard to believe that those later in time would know the framers' intent better than those earlier in time. But if you think that Citizens United is more in line with framers' intent than Austin v. Michigan Chamber of Commerce (which was overturned by Citizens United), feel free to expound on that.

ZelieMike wrote:
I did not use these examples to "prove" anything other than an offset to your fellows noted OPINION.

Well, perhaps you should be picking from those who do not have a moneyed interest in the decision.

ZelieMike wrote:
And, again, looking at the monies spent, you will see a 50/50 split. It is historical and consistent, which makes full sense in light of the fact that corporations do not control government, government controls corporate response. So, corporations, especially large ones with a huge body politic that they do NOT want to piss off, say about 50% of their market, will send monies in accordingly. They will, and do, play both sides of the isle.

ZM

That's all well and good, but that does not explain why the Court issued such a broad and game changing opinion. I don't think you understand the full scope of the opinion: because it overturned Austin v. Michigan Chamber of Commerce, this decision will be used to strike down similar state campaign finance restrictions, which were enacted in the interests of preventing corruption. For example, companies that want to contribute to a candidate in a judicial election in Pennsylvania can, and will, use this decision to strike down Pennsylvania campaign finance legislation.

Again, I don't know what impact this decision will have on democratic elections. But that does not excuse the Kennedy majority from overreaching.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 10:56 am 
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Certainly.

This decisions supports free speech. Not restricted, censored speech.

The first amendment means what it says, not only in certain instances and for people we like or pay less than others.

If it means free political speech in states, so be it. That is as it was meant to be. With minimal reading, the framer's intent is clearly understood. They laid it out quite clearly in the language of the constitution and bill of rights, along with the federalist papers.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 2:37 pm 
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There used to be a cornerstone of our government that each man had the same vote and therefore were equal. One man- one vote.
This principle has been lost with the influence of corporate America. No one can argue that the money spent by them hasn't scewed their influence on politicans and therefore the decisions they make. I certainly don't have the same power or influence as any large donating corporate citizen. Because our elections are so money driven today, our politicans need to please them in order to keep their position. Why is that a problem?

Answer is that in helping them, often the general public's interest are not considered or are simply ignored to continue to keep the corporate flow coming to their re-election efforts. EXAMPLE: When congress was deciding in the last administration to provide prescription drug coverage to senior citizens, a major concern was the cost and trying to control it. By allowing Medicare to go to foreign producers would have reduced the expenditure and therefore the cost and resultant increesed national debt. That opinion was ignored not because the general public wanted it but because by not bidding out with foreign countries, the big drug guys would and did increase their profits by huge amounts at the expense of the public.

That's just one example of the power and control that corporations have and now it only increases. So, argue all you want about activism, this SC decision results in a huge negative for Americans in general very positive for private interest. It is not good for Americans period.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 2:48 pm 
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Do you even bother with the facts? You throw around terms like "everybody knows". Corporations don't vote, you do. So you trump them all, 1-0.

Do you feel the same way about Soro's and the Unions having unfettered contribution access?

You do realize that total Corporate contributions are split 50/50, right? You do realize unions et. al, contributions are split 92 -8%, right? You obviously don't have a problem with that.

Show me were you have the right to restrict the right of people to assemble to address the government.

Oh, and the Rx drug thing? That was your man, Obama, cutting a back room deal. Why again,should a Canadian, or a Swede use their taxes to subsidize your drugs?

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 3:59 pm 
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Mike, I'm not refering to the right or left. I am merely trying to point out that the influence of corporations is so great that they have in many cases usurpted our democracy and are using it for their own ends.

The example I used was done in 2004 just months before the election. Obama was a back bench senator in 04.

To further the example know that many of the key legislative people and particularly their staffs were given big paying jobs by the very drug companies whom they helped. And yes some were Denmocrats. To the extent that these things happen, we have lost our one man, one vote principle. We will not get it back with rulings like this one by the SC.

This is not a partiisan thing, it's a quiet corruption of the process that should in my opinion concern all of us.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 4:21 pm 
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Then, my friend, you are talking about in-house delegates and K-street. Not corporate donations to campaigns.

The McCain-Feingold law struck down created the very entity that you abhor by eliminating messages or speech in the last months of a campaign. Thereby propping up a K-street backed incumbent who could cut ribbons at bridges or whatnot without consequence or question by the challenger or "the corporations".

The left should really rejoice over this because it frees up their advocacy groups who can now give out their version of reality down the stretch. Example used today by Will of the Sierra Club handing out pamphlets stating the environmental voting record of the candidates in Florida being call a "corporate donation" by the courts.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 5:00 pm 
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No one who cares about our democracy should be happy about this ruling.

K-street is corporate America. Who hires these lobbyists? What do they lobby for? Whose water is being carried here? Most of the serious money paid to K-strret comes from the people who have taken away our government for their own greed. They are stronger now. It's your country too Mike. Do you think this activity is a good thing? Can't believe that you do.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 5:15 pm 
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What activity?

If you mean does everyone have a voice to be heard? Yep. Am I happy that there can now be a response to incumbents up until the elections. Yep.

Do I care which American or assembly of Americans (foreign corps are NOT allowed to contribute under this decision), is allowed to voice their beliefs, and that I can see where they stand? Yep.

You are confusing contributions to campaigns with lobby efforts on the hill, I believe.

ZM

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Thu Jan 28, 2010 5:50 pm 
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In times past there may have been a diiference, not so much today.

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 Post subject: Re: Supreme Court -- just saying...
PostPosted: Tue Feb 02, 2010 8:20 pm 
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This thread is one that I am better off avoiding. But what the hell ...

(1) The idea that Congress can pass a law limiting political speech is offensive to the Constitution. The First Amendment provides in relevant part, "Congress shall pass no law abridging freedom of the speech, or of the press ..." The McCain-Feingold Act did exactly that, by restricting private spending on political issues within 30 or 60 days of an election. That is directly antithetical to the First Amendment.

(2) The "activist" vs. "strict constructionist" discussion is a red herring. Of course one can claim a decision "changes" Constitutional law, and is thereby "activist." However, the analysis should be:

  • Is the decision within the purview of the Constitution and does it protect individual liberty the way that the Bill of Rights was intended?]


If yes, then good. If no, then bad.

(3) The discussion of corporations, corporate interests, etc. is all well and good, but the problem here is that McCain-Feingold was not so limited. The underlying case involved a film that a private individual wanted to show. He had finished the documentary, regarding Hillary Clinton, and was getting ready to show it within 30 days of a primary.

The Federal Election Commission (FEC) ordered that the film not be shown, since it was barred by McCain-Feingold. Let me repeat - under that statute, the FEC ordered that a private citizen's movie not be shown.

Justice Kennedy asked the Solicitor General during oral argument whether or not the FEC could have banned the private citizen's work if it were presented in a book. The Solicitor General said, "Yes."

Let me repeat ... the Solicitor General of the United States told the Supreme Court that the FEC - a non-elected bureaucracy - could ban books discussing political issues, and that were to be published by a United States citizen.

Hey, no book burning needed. Just ban publication and avoid the "carbon footprint" of burning the books!!

(4) The idea that the campaign regulations now "limit" the impact of money on elections is a travesty. The amount of spending on campaigns has increased well beyond the rate of inflation since McCain-Feingold was enacted. In other words, the idea that the law would temper the influx of money into political campaigns has been proven false.

But what is not disputed is that the statute purportedly gave a bureaucracy the power to ban books and movies about political speech. The fact that four justices voted in favor of such power held by government is apalling.

(5) The statute in question does not control campaign contributions or direct political advertising by foreign nationals. Foreign citizens - corporate or private - are barred from political contributions in all manner, except "issue advocacy," by other statutes that were unaffected by the decision.

(6)
Wilton wrote:
As a general matter, I find it hard to believe that those later in time would know the framers' intent better than those earlier in time. But if you think that Citizens United is more in line with framers' intent than Austin v. Michigan Chamber of Commerce (which was overturned by Citizens United), feel free to expound on that.


Simply put, the Austin decision was very poorly reasoned. Justice Marshall found that political speech could be restricted since Michigan had a "compelling state interest" avoiding "corruption or the appearance of corruption." The "appearance of corruption," with no actual corruption proven, is enough to have a government-run bureaucracy shut down political speech?

Yeah, right. So long as that bureaucracy, or that government, agrees with your views and avoids the "appearance of corruption" of the political opponent.

The bill of rights, and First Amendment in particular, were designed to avoid this type of government control. Why in the hell should it matter who is in charge of the FEC, and what type of political speech is being quelled? The point is that no such restrictions are permitted, so that we avoid the problem of having an FEC representative decide if a publication is "political."

Few know that the producer of the movie that was banned asked for a limited exception to be granted in his favor - the media exemption. That is, "media sources" are free to publish, broadcast, print, and disseminate political speech within 60 days, or 60 seconds, of an election.

The producer told the FEC all he wanted was the media exemption, so that he could show his movie. And by the way - it was not to be disseminated on free television, and required patrons to pay to see the movie.

The FEC refused. So, the FEC decides if a person or corporation - such as all major newspapers, radio stations and television stations - qualified to present political speech. Michael Moore? Yes. NBC, ABC, CBS, Fox, MSNBC, FOX Cable, WSJ, Washington Post, NYT, LAT, etc. - yes. Hillary producer? No.

The idea that such power could rest with one governmental bureaucrat should make everybody queasy.

The Supreme Court was frankly troubled that the power of prior restraint of free speech, political speech, could be wielded by the Federal government.

I agree with the Supreme Court. A court is not "activist" when it overturns bad law. It is simply a good decision by the court.

And make no mistake - Austin was a terrible decision, written by Marshall's research clerk fresh out of law school, at a time when Marshall was so feeble that he could barely make it through a session before the Court.


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