An analysis of the recent Supreme Court ruling

[prole]

Do I "support banning the anti-Hilary ad put out by a non-profit group and those like it"? No, I don't support banning the ad or others like it.

than your opposition to this decision is schizophrenic, as that is ultimately what courts have to do: rule on the exact situation in front of them, not make the world the way they think it oughta be.

 

they should have been allowed to play their suck-ass movie

 

 

Wasn't there a dissenting opinion?

[Jim]

Huh? I do not have a political mindset. So can someone please explain the difference to me:

 

Corporations can make contributions to a candidate--but are limited.

 

Corporations can not make campaign contributions.

 

If you make contributions to a candidate aren't you making campaing contributions? Is this what is called soft money?

 

Here's the deal - there are limits on how much say, Exxon, can give to, say McCain's re-election committe - which is controlled by McCain and his assistants. Those are still in place.

 

There used to be limits on how much money corporations could use for funding attack ads (or support ads) that don't specifically say "go vote for John McCain." Typically a Political Action Committee would form in support of a candidate - not by the candidate but by supporters. There is not supposed to be coordination between the PAC and the candidate (in theory). The PAC would then garner money from corporate and individual doaners that would pay for ads. These proved very powerful in the Swiftboat ads against John Kerry.

 

Now there are no limits to how much money corporations can spend on such ads. They do not have to form PACs, the associated financial limits are gone. Corporations can now pay directly for attack ads with no limits.

[ivan]

Do I "support banning the anti-Hilary ad put out by a non-profit group and those like it"? No, I don't support banning the ad or others like it.

than your opposition to this decision is schizophrenic, as that is ultimately what courts have to do: rule on the exact situation in front of them, not make the world the way they think it oughta be.

 

they should have been allowed to play their suck-ass movie

 

 

Wasn't there a dissenting opinion?

i have not read it, but would appreciate an analysis similiar the aclu one for the majority

 

i know enough about the law to know i don't know a damn thing about how it actually ends up working - like msot, i begin w/ a sense of how things SHOULD be, then feel frustrated by a general inabilty to clear understand how it all gets fucked up in the actual implementation

[prole]

Here's part of a pretty decent piece on the case. This part suggests that the Court went much further than simply hearing and deciding on the case of the Hillary movie and stepped far into the realms of judicial activism (aka "making the world as you want it to be"):

 

On process grounds, the holding by the court’s 5-4 conservative majority has been widely criticized as a quintessential example of judicial activism. The constitutionality of the ban on corporate election expenditures was not the issue pressed by Citizens United when the case initially was argued in March 2009. Then, the primary issue was whether the McCain-Feingold campaign finance law, which bars corporate-funded “electioneering communications” 30 days before a presidential primary or 60 days before the general election, applied to “Hillary: The Movie,” a 90 minute documentary sharply critical of Hillary Clinton, produced by Citizens United, a non-profit corporation that paid for the film primarily with individual contributions.

 

Citizens United originally contended that the McCain-Feingold Act never was intended to apply to video-on-demand distribution, through a consortium of cable companies, of a 90 minute documentary about a presidential candidate, and also contended that the Act’s disclosure requirements violated its First Amendment rights.

 

But two months after the oral argument last March, the Supreme Court vastly expanded the issues to be resolved by ordering the parties to file briefs, on an accelerated schedule, addressing whether the Court should overrule two of its prior decisions, Austin v. Michigan Chamber of Commerce and McConnell v. FEC. Those cases upheld statutes barring the use of treasury funds by corporations to make expenditures in support of or opposition to candidates for election, while at the same time allowing such expenditures to be made by corporate political action committees.

 

When the Citizens United case was reargued on Sept. 9, 2009, several justices expressed a preference for deciding the case on a narrower basis, consistent with the court’s customary policy of avoiding constitutional issues when a case can be decided on non-constitutional grounds. But the Roberts Court rejected that option, concluding that none of the narrower grounds for the decision was appropriate and that the constitutionality of the ban on corporate expenditures had to be addressed, even if prior precedents had to be overruled.--from here.

[prole]

Here's a gem for the ACLU, Tvash:

 

But policy and process aside, the issue largely neglected by the post-decision commentary is whether or not the court’s conservative majority was correct in insisting that this incendiary ruling was mandated by the First Amendment. Clearly, the majority was not guided by the oft-quoted observation of the late Justice Robert Jackson, who once said: “The Constitution is not a suicide pact.”

 

 

[tvashtarkatena]

Should Planned Parenthood, for example, or NARAL Pro-Choice America be banned from criticizing Sarah Palin during a future campaign for office? That was precisely the question raised by the Citizens United case.

 

Not interested in getting into a pissing match here, but doesn't it seem ironic that the Court has affirmed the 1st amendment rights of corporations such as Planned Parenthood yet does not recognize any such nascent rights to the unborn?

 

I'm certain there are some legal doctrines that have bearing on this of which I'm not aware (as a layperson). One couldn't compare this to the Dred Scott decision or to the recent decision by the Supreme Court in upholding a lower court ruling ( SCOTUS Petition Asks Justices to Review Torture Abuse Case of British Former Guantánamo Detainees a Second Time

 

Well.... There is that infant who somehow advocates for X investment co (the talking baby ads) so I guess with ultrasound communication the unborn could become day trading shareholders or even form a corporation or even become corporate officers, and in that case the SC has recognized their nascent rights, otherwise I guess they're SOL as far as the holding of the case we're talking about.

 

Nicely played. I was just gonna tell this thumping ass clown to STFU about abortion and stick to the subject. Since he just proved he can't even intelligently discuss Roe V Wade due to a painfully obvious lack of familiarity with the ruling and its treatment of personhood for the unborn, I'm not holding my breath.

 

And back to the 'corporate personhood' discussion; should free speech not be afforded to organized groups of individuals, such as the non-profit in this case? Should incorporation come with a gag rule and if so, by what constitutional principle? Can anyone tell me why organized people must STFU while non-organized individuals enjoy freedom of expression?

[tvashtarkatena]

The case also had nothing to do with limits on campaign contributions to a candidate, or with the prohibition of corporate contributions to a candidate; those remain intact and were not at play in this case. Rather the case had to do with what is called independent expenditures on speech. This means speech engaged in by an organization in its own behalf, and not in coordination with any candidate.

 

I call BS on this statement, which is disingenuous at best. Sure there still are direct contribution limits but, duh, they will be overwhelmed by the indirect limits. The ruling specifically releases corporations from having to form PACs as middlemen and the financing constraints around PACs. They can now funnel money directly into whatever PR program they wish, with no limits. Does the author really think it's reasonable to equate the financial power of Exxon with even the largest Unions in the country? I don't think so. Yes, there are some issues that needed parsing out but there have always been limits on free speech, particularly in recognizing the unbalanced power of large corporations. The Supreme 5 sidestepped the relative narrow question in front of them to take on an issue that was not it play. And Congress devoted to real campaign finance reform? I'll take my chances that the Easter Bunny is real first.

 

Say you're a congressman from a small rural district and you've been making noise about strong bank reform and making some headway. What's to prevent Goldman or whoever from throwing money at a local Swiftboat process? So now that congressman will be more reluctant to take on controversial issues because he doesn't want to disturb the firms with deep pockets. In addition, the 24 states that have campaign finance laws will be affected.

 

You've addressed several of your concerns, all of which could well stand some legislative reform. As Ira correctly stated, however, none of these issues were at issue in this case.

[Jim]

An interesting question, but not the one that was in front of the SC. I don't think anyone in the case, or here, was advocating a gag on all organized speech, but recognizing the need for some limits because of the potential and realized effect that large institutions can have on the democratic process. Easy solutions? - No. But the baby was thrown out with the bathwater on this decision.

 

It's getting to be all money all the time - from lobbying, direct contributions, and not this.

[Jim]

The case also had nothing to do with limits on campaign contributions to a candidate, or with the prohibition of corporate contributions to a candidate; those remain intact and were not at play in this case. Rather the case had to do with what is called independent expenditures on speech. This means speech engaged in by an organization in its own behalf, and not in coordination with any candidate.

 

I call BS on this statement, which is disingenuous at best. Sure there still are direct contribution limits but, duh, they will be overwhelmed by the indirect limits. The ruling specifically releases corporations from having to form PACs as middlemen and the financing constraints around PACs. They can now funnel money directly into whatever PR program they wish, with no limits. Does the author really think it's reasonable to equate the financial power of Exxon with even the largest Unions in the country? I don't think so. Yes, there are some issues that needed parsing out but there have always been limits on free speech, particularly in recognizing the unbalanced power of large corporations. The Supreme 5 sidestepped the relative narrow question in front of them to take on an issue that was not it play. And Congress devoted to real campaign finance reform? I'll take my chances that the Easter Bunny is real first.

 

Say you're a congressman from a small rural district and you've been making noise about strong bank reform and making some headway. What's to prevent Goldman or whoever from throwing money at a local Swiftboat process? So now that congressman will be more reluctant to take on controversial issues because he doesn't want to disturb the firms with deep pockets. In addition, the 24 states that have campaign finance laws will be affected.

 

You've addressed several of your concerns, all of which could well stand some legislative reform. As Ira correctly stated, however, none of these issues were at issue in this case.

 

No kidding they weren't part of the case but ARE directly affected by the decision made by the SC. The SC went way beyond the question that was being asked. Are you saying these elements are not a direct outcome of the decison?

[tvashtarkatena]

Here's a gem for the ACLU, Tvash:

 

But policy and process aside, the issue largely neglected by the post-decision commentary is whether or not the court’s conservative majority was correct in insisting that this incendiary ruling was mandated by the First Amendment. Clearly, the majority was not guided by the oft-quoted observation of the late Justice Robert Jackson, who once said: “The Constitution is not a suicide pact.”

 

Reads more like pure propaganda to me. I wasn't able to glean a salient point out of it other than "we hate this ruling!"; hardly a rebuttal for a complex 1st amendment ruling, but hey, if it makes you feel angrier, it's done its job, I guess.

 

[tvashtarkatena]

As Ira acknowledged in his piece, the court did extend the impact of the case in an activist fashion. And yes, like most SCOTUS rulings, there are potentially far reaching impacts. That's why we have 2 other branches of government: to address those potential impacts. I haven't seen anyone here argue that the potential damaging effects of this decision on the democratic process couldn't be addressed by appropriate legislative reforms. That's the legislature's job, not the court's.

Edited February 5, 2010 by tvashtarkatena

[tvashtarkatena]

Huh? I do not have a political mindset. So can someone please explain the difference to me:

 

Corporations can make contributions to a candidate--but are limited.

 

Corporations can not make campaign contributions.

 

If you make contributions to a candidate aren't you making campaing contributions? Is this what is called soft money?

 

Here's the deal - there are limits on how much say, Exxon, can give to, say McCain's re-election committe - which is controlled by McCain and his assistants. Those are still in place.

 

There used to be limits on how much money corporations could use for funding attack ads (or support ads) that don't specifically say "go vote for John McCain." Typically a Political Action Committee would form in support of a candidate - not by the candidate but by supporters. There is not supposed to be coordination between the PAC and the candidate (in theory). The PAC would then garner money from corporate and individual doaners that would pay for ads. These proved very powerful in the Swiftboat ads against John Kerry.

 

Now there are no limits to how much money corporations can spend on such ads. They do not have to form PACs, the associated financial limits are gone. Corporations can now pay directly for attack ads with no limits.

 

This case was about being able to run the ads period (free speech), not how much the ad cost. If the ads were free, the overturned law would have still banned them. I don't agree with that kind of limitation on political speech at all, and, apparently, neither did the SCOTUS.

[Jim]

I agree with what you say the case was about. But - the decision is much broader than that. While the case brought by the plaintiffs was not about money, the majority found it necessary (for some unknown reason) to address money. It's very clear. The decison lifts limits on financing of political ads. There used to be limits and now there are none.

[prole]

And back to the 'corporate personhood' discussion; should free speech not be afforded to organized groups of individuals, such as the non-profit in this case?

Yes, but the amount of money they spend in support of a candidate or issue during an election cycle should be limited.

 

Should incorporation come with a gag rule and if so, by what constitutional principle?

The only thing gagging here is your insistence that money equals speech. Limits on the amount an individual or corporation can spend in an election is the issue. Should there be any? If not, why should there be limits on contributing to a candidate directly or disclosure as to who contributed the money?

[tvashtarkatena]

And there is no reason why that issue can't be addressed in the legislature. Remember, this ruling overturned a poorly conceived and enacted law that was overly restrictive on actual political speech, not contributions. Again, if the anti-Hilary ad had been FREE (wonderfully possible in the age of $200 video cameras and YouTube), it would still have been banned by this law.

Edited February 5, 2010 by tvashtarkatena

[Jim]

And there is no reason why that issue can't be addressed in the legislature. Remember, this ruling overturned a poorly conceived and enacted law that was overly restrictive on actual political speech, not contributions. Again, if the anti-Hilary ad had been FREE (wonderfully possible in the age of $200 video cameras and YouTube), it would still have been banned by this law.

 

Oh yea, Congress is going to jump on this one. Again - I'm not agruing that there was an issue to resolve - I'm saying the outcome went way, way beyond what the court was being asked to resolve and the consequeces give additional power to moneyed inerests.

Edited February 5, 2010 by Jim

[tvashtarkatena]

Well, it seems that the SC has illuminated a pathway to reform and thus provided a focused issue we can write our congressmen about; ie, it's done its job.

 

After learning more about this issue, I strongly support the SC ruling in favor of less, rather than more, restricted political speech, as well as the message it has sent to the legislature regarding some much needed campaign finance reform.

[Jim]

That's clear - I hear ya. I just think the hope that Congress will grow a pair is naive and the public got 8D again. Any freedom of speech for the small guy will get drowned in the comparative tidal wave of corporate money and influence; adding to the current unbalance.

[tvashtarkatena]

Nothing in the ruling favored moneyed interests. The ruling did not differentiate between non-profit advocacy organizations such as the Sierra Club or the ACLU, and, say, big bad corporations like GE. That is an interpretation you folks are layering onto the ruling. I doubt any of you would be willing or able to describe the method by which it is decided which organizations get to run ads and which don't: the central point of this ruling. Fortunately, the court saw fit to uphold the fairness doctrine and the 1st amendment in this regard.

 

If you want to limit campaign financing, the pathway to legislative reform remains wide open. If you don't believe that is politically possible, that's a political problem, not a constitutional or judicial one.

[ivan]

The only thing gagging here is your insistence that money equals speech. Limits on the amount an individual or corporation can spend in an election is the issue. Should there be any? If not, why should there be limits on contributing to a candidate directly or disclosure as to who contributed the money?

but it takes money to speak! wether it be a bullhorn, a bus-ticket to reach the park where you plan on spewing free-crazy to the masses, the computer to type up your manifestoes on cc.com, whatever - to speak in the political sense requires money, and giving money to a cause your passionate about is speech too - it says "i love this shit X much"

 

 

[prole]

Well, it seems that the SC has illuminated a pathway to reform and thus provided a focused issue we can write our congressmen about; ie, it's done its job.

 

After learning more about this issue, I strongly support the SC ruling in favor of less, rather than more, restricted political speech, as well as the message it has sent to the legislature regarding some much needed campaign finance reform.

 

Illuminated a pathway? If anything, it's illuminated a way for corporations to press for further eliminations on restrictions to campaign finance. Once money equals speech and limits on "speech" are done away with, how would any legislative action placing limits on campaign contributions not be deemed unconstitutional? The questions above still stand: once this is a "free speech" issue, why should there be limits on contributing to a candidate directly at all or why should anyone have to disclosure who contributed the money?

[prole]

The only thing gagging here is your insistence that money equals speech. Limits on the amount an individual or corporation can spend in an election is the issue. Should there be any? If not, why should there be limits on contributing to a candidate directly or disclosure as to who contributed the money?

but it takes money to speak! wether it be a bullhorn, a bus-ticket to reach the park where you plan on spewing free-crazy to the masses, the computer to type up your manifestoes on cc.com, whatever - to speak in the political sense requires money, and giving money to a cause your passionate about is speech too - it says "i love this shit X much"

 

 

No shit Sherlock. And when one dollar equals one decibel the political discourse looks like corporate equivalent of a Ministry vs. Nine Inch Nails concert (yeah, the corporations are the bands) while the rest of us blow our vocal cords trying to be heard by the person standing right next to us. We need to pull the plug on the amps, not just say "okay kid, sure you still have the right, get on up there with your harmonica".

Edited February 5, 2010 by prole

[tvashtarkatena]

Well, it seems that the SC has illuminated a pathway to reform and thus provided a focused issue we can write our congressmen about; ie, it's done its job.

 

After learning more about this issue, I strongly support the SC ruling in favor of less, rather than more, restricted political speech, as well as the message it has sent to the legislature regarding some much needed campaign finance reform.

 

Illuminated a pathway? If anything, it's illuminated a way for corporations to press for further eliminations on restrictions to campaign finance. Once money equals speech and limits on "speech" are done away with, how would any legislative action placing limits on campaign contributions not be deemed unconstitutional? The questions above still stand: once this is a "free speech" issue, why should there be limits on contributing to a candidate directly at all or why should anyone have to disclosure who contributed the money?

 

You're choosing to wrap yourself around the axle of a comment (not insistence) I made introducing the arguable concept of money as a form of political speech (might I suggest rereading what my actual comments before rewriting them for me?); again, that wasn't the central issue decided here. If you want to chase that deflated ball down the street, go for it, but this case was about actual SPEECH, as in, SAYING SOMETHING, as in EXPRESSING AN OPINION, as in PEOPLE TALKING, not money as speech.

 

Nothing in this ruling prevents the legislature from enacting, say, finance limited, publicly funded campaigns, for example. You'll have to read the ruling to grok this (somehow, I don't think that's going to ever happen, though, because you've made up your mind that the SCOTUS is at the beck and call of big bad corporations (even though the ruling favored a small, good, non-profit corporation). There are a number of options outlined in the original analysis as well, of of which would not go against this ruling.

 

The media (including the blogosphere et al) has blown this ruling up to be much broader than it is, and some of you have swallowed that story without chewing and without actually going to the source to understand what actually occurred. I usually go to the source to understand stuff like this because I've found that media stories are about 95% drivel, and that's on a good day. Your world filtered by journalists, incentivized to maximize histrionics and entertainment value, and most of with little or no professional training at vetting fact from fiction. Good luck with that.

[Jim]

Nothing in the ruling favored moneyed interests.

 

If you want to limit campaign financing, the pathway to legislative reform remains wide open. If you don't believe that is politically possible, that's a political problem, not a constitutional or judicial one.

 

You have to be kidding. I think what you are saying is that McCain Feingold was too broad and limited speech - maybe. And that the ruling opens up speech for all, which is a good thing. But you're ignoring the direct - real world consequences.

 

And it's not a political problem that affects real reform - it's MONEY sloshing around the system problem.

[tvashtarkatena]

Also, it's important to remember that having a minimum threshold amount of money to run a successful campaign and get the message out is far more important than burying your opponent with tens of millions of dollars for things like TV ads, which more often than not provide no additional effectiveness and many times even backfire. There is a saturation point regarding the most expensive part of a campaign. SR 71 provides a classic example. Our side was way outgunned by the opposition moneywise, but a better organized, focused, and more honest message won the day. The other side' untruthful TV ad blitz, despite their high cost, turned off moderates and drove people to our side. As ads become cheaper to produce and run and more people get their information from low cost or free forms of media such as the internutz, this principle is truer than ever.

Edited February 5, 2010 by tvashtarkatena