RIP USA

[MattZ]

I don't believe it's a lame cop-out at all; I'm not copping out - it's a fact. People who recognize that the Consitution is living and breathing ought also to recognize that SCOTUS judges are too, and as humans are likely from time to time to make decisions that fall under the realm of their own opinions and self-interest. Add to that the possibility that a President might appoint a judge whose politics align closely with his own, and we have an imperfect, human judicial system that nevertheless has served us well thoughout the centuries. I don't like Scalia, but I think he is as likely (or no more likely than) the rest of the judges to make an opinion that is hypocritical and closely aligned with his personal opinions.

 

SpeedRacer, I hear you. I agree with you. Scalia doesn't ever stop congratulating himself on how he doesn't do these things. And he can be pretty vicious attacking other justices that he perceives as activists. That's really all I am saying.

[Guest Speed Racer]

SpeedRacer, I hear you. I agree with you. Scalia doesn't ever stop congratulating himself on how he doesn't do these things. And he can be pretty vicious attacking other justices that he perceives as activists. That's really all I am saying.

 

No, I agree with you. Like I said, I don't like the guy. I just think that calling someone a hypocrite is a pretty big waste of time, as you'd kind of have to then point to everyone else so as not be a, uh, hypocrite.

[bleedorange]

So upholding the basic tenets of the First Amendment of the Constitution gets you labeled an activist these days. Interesting.

[MattZ]

So upholding the basic tenets of the First Amendment of the Constitution gets you labeled an activist these days. Interesting.

 

No, overturning precedent does. Or, it does when the liberals do it, so I figured it was only fair to treat everyone on the court equally. You know, since we are headed for socialism anyway. Let's start at the top!

 

Ok, really, I am done here. My head hurts.

[Atticus]

Come on Poon, get back in here and let's talk Scalia!

 

I'm reading the opinion! hold on...

[sureshot]

So upholding the basic tenets of the First Amendment of the Constitution gets you labeled an activist these days. Interesting.

 

Since when are corporations considered to have the same rights as individual citizens? Does a Corporation have a 2nd Amendment right to bear arms? If so, wouldn't it be subject to a background check to determine sanity? How about training in the proper and safe handling of firearms? Can a Corporate Charter be capable of hitting a target with a gun? Can a Corporation receive a death sentence, or be incarcerated? Waterboarded?

[M. (hristine]

Since when are corporations considered to have the same rights as individual citizens?

The 14th Amendment, states that "no state shall deprive any person of life, liberty or property, without due process of law." The amendment was adopted during Reconstruction to protect recently emancipated slaves in a hostile South. But in the landmark case of Santa Clara County v. Southern Pacific Railroad (1886), the Court, invoking the 14th Amendment, defined corporations as "persons" and ruled that California could not tax corporations differently than individuals. It followed that, as legal "persons," corporations had First Amendment rights as well.

 

Law is a sticky wicket.

 

I rather prefer Hobbes' view that corporations are "worms in the body politic".

[Atticus]

from my reading, this non-profit corp had a Hillary-bashing movie, and they wanted to put it on cable video-on-demand (free to cable viewers). In fear that the video would violate existing "electioneering communication" prohibitions (read the opinion for specifics, but basically corporations couldn't use general treasury funds--as opposed to PAC funds--to publicly distribute candidate-specific ads within 30 days of a primary election), which could result in steep civil and criminal penalties, the non-profit wanted a ruling from a federal court that they weren't in violation of federal law. The lower court ruled in favor of the FEC, effectively stopping the video-on-demand distribution.

 

some interesting excerpts from the opinion (most citations redacted because they are eyesores):

 

A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they could establish that the case is not moot because the issue is “capable of repetition, yet evading review.”

 

Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” ... These entities are subject to separate rules for 33 different types of political speech. ... The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. ... In fact, after this Court in WRTL adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, ... the FEC adopted a two-part, 11-factor balancing test to implement WRTL ’s ruling

 

As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

 

the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.

 

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

 

The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court. See MCFL, supra, at 257 (FEC posited that Congress intended to “curb the political influence of ‘those who exercise control over large aggregations of capital’ ” (quoting Automobile Workerss, supra, at 585)); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 201 (1981) (Congress believed that “differing structures and purposes” of corporations and unions “may require different forms of regulation in order to protect the integrity of the electoral process”). In neither of these cases did the Court adopt the proposition.

 

In its defense of the corporate-speech restrictions in §441b, the Government notes the antidistortion rationale on which Austin and its progeny rest in part, yet it all but abandons reliance upon it. It argues instead that two other compelling interests support Austin ’s holding that corporate expenditure restrictions are constitutional: an anticorruption interest, see 494 U. S., at 678 (Stevens, J. , concurring), and a shareholder-protection interest, see id. , at 674–675 (Brennan, J., concurring). We consider the three points in turn.

(the Court then analyzes these three issues)

 

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

 

The Court upholds the following disclosure and disclaimer provisions, even on ads promoting movies such as the Hillary one at issue:

 

televised electioneering communications funded by anyone other than a candidate must include a disclaimer that “‘_______ is responsible for the content of this advertising.’ ” ... The required statement must be made in a “clearly spoken manner,” and displayed on the screen in a “clearly readable manner” for at least four seconds. It must state that the communication “is not authorized by any candidate or candidate’s committee”; it must also display the name and address (or Web site address) of the person or group that funded the advertisement. ... any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC... That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors.

 

I haven't yet read the Stevens opinion yet, which concurs in part and dissents in part (because my eyes ache). But will do so.

[uncool2pillow]

The title of this thread is ridiculous.

[sureshot]

The title of this thread is ridiculous.

 

Such is life.

[Vacant Horizon]

as with any of these issues it needs to be considered in the systemic context. we have corps that are treated like individuals. however, corps have a whole lot more power than one individual. so, they will sway both in lobbying and now through political campaigns. BUT, that's the system we have. we can't expect corps to be 'nice'. it's like telling a dog to be a cat. they can't in capitalist society based on competition. corps will do ANYTHING to make more money. it's insidious. there's a nasty corporate underbelly in every corner of this society. i mean every corner. now, if we all could decide to sit down and not go to work for 1 day and not be beholden to these mythological creatures (corps.) then we might make the world work for us. but we don't. it sickens me to no end. especially now that i have two children. i'm left with playing the game so my kids at least have the basics.

[bleedorange]

No, overturning precedent does. Or, it does when the liberals do it, so I figured it was only fair to treat everyone on the court equally. You know, since we are headed for socialism anyway. Let's start at the top!

 

Ok, really, I am done here. My head hurts.

 

You're a little fuzzy on the definition of judicial activism. If a precedent was established through activist decisions, then the overturning of that precedent would be from an originalist point of view. It doesn't become doubly activist.

[Atticus]

I tried to get through all of Stevens' partial concurrence/dissent, but my eyes are bugging out. I think the dissenters make some good points about how the majority made a fairly sweeping overturning of the whole face of part of the statute (and prior cases), rather than issuing a narrower, more limited decision, but I'm conflicted because I see the majority's logic, as much as I may not like the result this decision may bring. It's one of those strange cases that really does not rely on a very persuasive lower-court/party-briefing situation, but I think that this ruling would have come around eventually. This bothers me.

 

so to some degree I really don't like this case for the suspicions I put forth on the first page (i.e. I don't know that the Court HAD to make this decision on THIS case), but I kinda tend to see the majority's logic in its First Amendment rationale. I'll have to re-visit this tomorrow.

 

Matt, as to your points about Scalia, I know where you're coming from, but I think you're oversimplifying stare decisis a little bit. No justice has ever strictly supported upholding precedent for precedent's sake (including Scalia), because some Supreme Court precedents are from the dark ages (racism, sexism, bigotry, etc.) as you know.

 

I agree that in this decision the conservatives are probably being (not sure to what degree yet) hypocritical, but I challenge you to read it and tell me that the result would not come about at some point in the future (I want to make sure I'm being clear on this--I probably will come out on the side of saying this decision was unnecessary--I'm curious about your opinion as to the constitutional issues raised though).

 

The crux of the argument, as I read it, was that we shouldn't try to limit the potential of corporate influence by restrictions on speech. Nowhere in this case is there ANY calling for relaxing restrictions on corporations making donations to candidates, or to political parties, or anything of the type. It is saying that corporations should be able to fund ads (with disclaimers and disclosures) within the 30/60 days preceding elections, that mention specific candidates. When we get into a game of "well, the liberal non-profits should be able to, but the evil for-profits shouldn't" I think we get into a dangerous area of restricting speech based on the identity of the speaker. --again, as much as I personally don't want to see even more corporate candidate-bashing ads...

 

my brain hurts. I want to think on all this for awhile.

[bleedorange]

The crux of the argument, as I read it, was that we shouldn't try to limit the potential of corporate influence by restrictions on speech. Nowhere in this case is there ANY calling for relaxing restrictions on corporations making donations to candidates, or to political parties, or anything of the type. It is saying that corporations should be able to fund ads (with disclaimers and disclosures) within the 30/60 days preceding elections, that mention specific candidates. When we get into a game of "well, the liberal non-profits should be able to, but the evil for-profits shouldn't" I think we get into a dangerous area of restricting speech based on the identity of the speaker. --again, as much as I personally don't want to see even more corporate candidate-bashing ads...

 

my brain hurts. I want to think on all this for awhile.

 

That's why all the hand-wringing over this is a little perplexing (in addition to being predictable). This is only dealing with independent expenditures of corporations, unions, nonprofits, etc., and has nothing to do with direct contributions (as Poongoogler said). With this decision, anybody and everybody can now spend their own money as they see fit.

[Atticus]

thus ushering the death of America

[Dude]

That's why all the hand-wringing over this is a little perplexing (in addition to being predictable). This is only dealing with independent expenditures of corporations, unions, nonprofits, etc., and has nothing to do with direct contributions (as Poongoogler said). With this decision, anybody and everybody can now spend their own money as they see fit.

 

Only on VC can you have an thought-provoking, highly intelligent conversation on the finer points of Supreme Court decision-making and refer to the excellent analysis provided by someone named Poongoogler.

 

(No offense Neil, the juxtaposition just cracks me up. )

[uncool2pillow]

Only on VC can you have an thought-provoking, highly intelligent conversation on the finer points of Supreme Court decision-making and refer to the excellent analysis provided by someone named Poongoogler.

 

(No offense Neil, the juxtaposition just cracks me up. )

 

After reading this, I actually decided to google poon. I was a bit disappointed in the results.

[NightOfJoy]

I'm so confused....should I have the kids pray to General Electric or the sky gods tonite?

[bleedorange]

I'm so confused....should I have the kids pray to General Electric or the sky gods tonite?

 

Whoever you would like. The First Amendment also grants freedom of religion in addition to the freedom of speech that was upheld with this ruling.

[dondoboy]

The First Amendment is the most prolific amendment.

[MattZ]

You're a little fuzzy on the definition of judicial activism. If a precedent was established through activist decisions, then the overturning of that precedent would be from an originalist point of view. It doesn't become doubly activist.

 

bleedorange- of course, you are right. I am being hyperbolic -- Plessy v Ferguson was precedent. I certainly don't stand for the proposition that overturning precedent is, by definition, improper (or activist). At the same time, I've heard enough from Justice Scalia to know that if the shoe was on the other foot here, he'd be excoriating the liberal justices for overturning a 20 yr old precedent by citing (primarily) to dissenting opinions. Be honest with me. The liberals do this, and Scalia just sits on his hands? Put another way, why is it when liberals overturn precedent, they are activist, but when the conservatives do it, they are just "overturning precedent that was established through activist decisions."

 

As I've said many times in this thread, I pass no judgment on whether the right decision was reached here. The First Amendment is a very tricky thing. That's not my beef.

 

Matt, as to your points about Scalia, I know where you're coming from, but I think you're oversimplifying stare decisis a little bit. No justice has ever strictly supported upholding precedent for precedent's sake (including Scalia), because some Supreme Court precedents are from the dark ages (racism, sexism, bigotry, etc.) as you know.

 

Poon- you are 100% right. My response to bleedorange above tries to get at what I was getting at.

[NightOfJoy]

Yesterday, in response to the ruling, Obama said the ruling was "a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshall their power every day in Washington to drown out the voices of everyday Americans." Thanks for that, Pres. What are you going to do about it?

[Atticus]

Only on VC can you have an thought-provoking, highly intelligent conversation on the finer points of Supreme Court decision-making and refer to the excellent analysis provided by someone named Poongoogler.

 

"I'd like to yield the balance of my time to the good Poongoogler from Texas"

[cryptique]

Yesterday, in response to the ruling, Obama said the ruling was "a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshall their power every day in Washington to drown out the voices of everyday Americans." Thanks for that, Pres. What are you going to do about it?

I'm not expecting anything to come of this, but...

[M. (hristine]

I say we round up all the lobbyists and put them in internment camps for a few years.