05 February 2012

I Hate You, Diana Ross!

Newt and Mitty have proved that Triage would be a waste of time and effort. I really wanted to build that thing, but SuperPAC money makes such an application irrelevant. SuperPACs are "prohibited" from co-ordinating with campaigns, and vice versa, thus rendering control impossible. Thanks a lot, Supremes.


Einhverfr said...

One thing to keep in mind here is that the 1st Amendment jurisprudence that we have is largely a response to government abuses, and the Citizens United case illustrates this quite clearly. If you don't believe me, please listen to the oral argument. Malcolm Stewart lost that case for the government at oral argument by suggesting that the government could ban books in the run up to an election.

In an ideal world, the FEC would not have gone after Citizens United, recognizing expressive value of the full-length film as within the First Amendment's protection. If they did and the government had to defend such an action, they would not have adopted a view that because books are usually published by corporations, they can be banned.

To her credit, Kagan tried *hard* (at rehearing) to undo the damage SG Stewart caused, but it really was too little too late, even prompting Roberts to ask "are you just giving up?"

So the DoJ (under Obama, tbh) put the Supremes in a bad position, where they had to draw an uncomfortable line. Given the arguments presented at oral argument and in their briefs, I think they did the best they could.

Also note that the decision was 5-4, but the dissent didn't want to draw a different line. The dissent wanted to argue that the case was moot and wait for a different case without deciding anything.

But more to the point, there's no reason why we allow corporate contributions to campaigns at all. Why are we making a big deal about super-PAC's when at least they are out in the open, and when we aren't even banning corporate contributions to campaigns? It seems to me banning corporate contributions should be the first stop on the agenda, but alas, it says something about our corrupt system that it is not even done.

Robert Young said...

My objection wasn't that a Right Wing court took the 1886 ruling (not part of a decision, by the way, only an assertion on the side) and further damaged democracy; which is obvious. This court would have ruled the same no matter the facts of a particular case.

No, my objection is that an application like Triage is pointless when most (I expect) funds for campaigns is dispersed through multitudes of SuperPACs which shouldn't be (and would be difficult to) managed by party apparatchiks. A Rand-ian point of view, in fact.

Einhverfr said...

Robert: Do you think the FEC could have banned any use of corporate funds to print Obama's books in the run-up to the 2008 election, provided that the statute was amended to cover books? That's in essence what SG Stewart argued in Citizens United (and it's exactly why it became a Constitutional question).

Could a labor union may Obama to speak while he is seeking re-election?

Now if you say that either or both of these are protected then I would ask you where you draw the line. Can you draw the line between a movie like "Hillary" and a 30 sec ad? Can you draw the line between a movie and a book (and thus throw Fahrenheit 911 under the bus)? As I say, we got Citizens United because of abuses by the Bush administration (both, btw, against Fahrenheit 911 and Hillary: The Movie) that were carried further in court by the Obama administration.

The court was left in a bad position. They didn't want to give the government rights to censor the sorts of content that's so expensive to produce that only content companies can do so, but that didn't leave them much choice.

It's really no different than the gradual realization that if you allow the government to ban something like A Communist Manifesto, that we undercut the very protections that guarantee free participation by natural persons in politics.

Robert Young said...

Rights of citizens is specifically not the issue. The "rights" of corporate entities (labeled as "citizens" quite arbitrarily by the Court) is.

In the 19th century, abuse of power (public or private) was solved (so many still believe) by Americans "lighting out for Indian territory", to quote Huck Finn; i.e. if you don't like what government is doing, head across the mountains where they ain't any. We don't have that luxury any longer, if we ever really did. We have to become more civilized, not more Social Darwinist. If we don't we'll just end up proving Soros is right.

As there is no Constitutional support for allowing corporations to do as they please, only prior Court assertions, as citizens we have the expectation that the Court will disallow naked aggression by corporations against the people. Just because the Koch brothers can spend millions, and convince pencil necks that all of our country's problems will go away if we just kill off welfare queens, doesn't mean it should be permitted. Zealotry for a US of A that didn't actually exist in the early 19th century is no excuse for abuse of power. If allowed to continue, the US of A will be no different from the Russian Oligarchy, once asserted to be a democracy. Yeah, right.

The Right Wing hates everything European, but Europe gets elections right. Minimal funding, minimal campaign periods, maximum parties. What they also get very right, and is true in only a handful of places here ( http://www.instantrunoffvoting.us/runoffelections.html ), is that the ultimate winner must have a majority. They do this with a run off process. It guarantees, among other things, that minority parties matter in a positive way. With a two party, winner take all process we end up with minority control. Dubya, for example.

In the end, one has to choose: democracy or Darwinism; take your pick.

Einhverfr said...

Well, I don't really disagree with your points above. The problem though is that the court is *going* to push back when the government argues that banning books is Constitutional, and not only are they going to, but they should.

Really, you have to go listen to the oral argument. Please do so before concluding it was just a right-wing conspiracy.

Justice Kennedy in fact very clearly switched his position during the oral arguments when SG Stewart said that banning books would be Constitutional, and even Soutor was pretty hostile to the government at that point.

Really, to understand Citizens United, you really have to listen to the first oral argument hearing (the one in early 2009). The justices tried hard to find a line that would be judicially defensible that would allow the statute to stand and they got no help whatsoever from the DoJ. Even Breyer expressed concern about the Constitutionality of the statute at some point, saying that there might be forms of content that could only be made available through corporations and that those must be protected. Ginsberg asked whether Fahrenheit 9/11 could be banned in the run-up to an election to the extent the statute permitted (something the FEC under Bush had done).

Even the justices in the dissent didn't like where they were put. They just didn't want to address the issues in this case and wait for another one.

Einhverfr said...

BTW, this is not the only case decided due to executive overreach in arguments. In United States v. Antoine Jones, the Supreme Court unanimously held that the GPS surveillance of Mr Jones was a search, departing from previous precedents. They did so because the government tried hard to minimize the impact of the 4th Amendment generally. Justice Sotomayor even wrote in her concurrence that a large amount of 4th Amendment case law needed to be reconsidered (and good for her!)....

Again in Hosana Tabor, the court unanimously held that antidiscrimination law, including retaliation lawsuits for discrimination complaints could not be applied to ministers of churches in part because the EEOC argued that even if discrimination complaints couldn't go anywhere, retaliation complaints served an important state interest.

I am expecting Sackett v. EPA to be a similarly resounding defeat for the government again because they argued that there is no judicial recourse to administrative compliance orders. It isn't even clear that Breyer will side with the government. The Sackett's may will lose on remand (and should if they are in violation of the clean water act) but their victory before the Supreme Court will be a victory for us all.