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July 05, 2012

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There is, I think, some legal tradition behind avoiding outside sources when hearing a case, I guess to avoid unduly biased influence. Judge John Jones, who decided the Kitzmiller v. Dover case on the teaching of evolution, gave this fascinating interview to PLoS Genetics

http://www.plosgenetics.org/article/info%3Adoi%2F10.1371%2Fjournal.pgen.1000297

in which, among other things, he stressed that he didn't do any outside research on the subject; the information he used to decide the case was supposed to come entirely from the expert testimony he got in court. (And, in fact, that testimony turned out to be enough that the opinion he wrote functioned as a rather good piece of popular-science exposition summarizing the "intelligent design" pseudo-controversy.)

"Again, I thought "principled conservatives" were against unelected judges extending their power, so this makes it sound like Roberts was being more fundamentally conservative than Scalia/Thomas/Alito/Kennedy"

That's what conservatives have claimed for years as their justification for opposing the expansion of civil rights to African Americans, and protection of the right of individuals to be free from having other people's religous practices forced on them as was the case in New Jersey when people like my parents could not purchase birthcontrol in the state.

But as conservative support for voter suppression laws show, the real conservative agenda is not to avoid judicial activism and uphold precedent--it's to marginalized Afreican American voters. And all across the country conservatives are finding various ways to make it harder to get birthcontrol.

If Roberts really cares about unelcted judges extending their power than he is one of very very few conservatives who is genuinely comitted to theat principle. For the rest judicial restraint was just a fig leaf to cover their opposition to the effects of court decisions. And now that there is an opportunity for a conservative majority to exercise a lack of judicial restaint and use Court authority to promote a political agenda, of course conservatives are going to expect all talk of judicail restraint to go down the memory hole!

It's just another example of how disiclined conservatives are to apply their so-called priciples to themselves.

I'm a bit surprised at you citing the NYT Examiner as evidence that the NT Times is not liberal. I took a quick look through the articles on its sidebar; the level of antisemitism is rather high, there. I don't know if it is characteristic of the site in general, but that was my impression.

And aside from that, take a look at this quote from the article you cited: "Within in the Times there exists the hierarchical divisions of labor and profit motive that are a problem for the entire economy."

Divisions of labor and profit motive are a problem? Unless I complete missed the point of my economics education, those are sort of the fundamental principles of a thriving economy. Now, maybe what this means is that the site is so far to the left that even a very liberal paper must seem conservative, but I think you need to find a better source for your claims about the NYT.

To me, this makes Justice Thomas look like an insecure *nut*, not a "principled conservative".

Call 'em as you see 'em doc. Good show.

....but I think you need to find a better source for your claims about the NYT.

See Eric Alterman's What Liberal Media?

Good point, Fuzzy Face. I was trying to find a link to one of the NYT's several articles about the woes of Wall Streeters trying to make it on a mere $300K after the crash, but gave up and basically took the first thing Google coughed up.

The other aspect of this affair which is deeply troubling (to me, at least), is the way in which members of the court appear to be indulging in anonymous media briefing against each other.

This doesn't seem to be confined to the Scalia/Thomas/Alito/Kennedy axis:
http://www.salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/

More evidence that the Justices are (becoming) politicians ?
Certainly not good for the Court.

There is also the hypothesis going around that Roberts wrote significant parts of the dissent that originally were intended to be the majority decision, so it does not refer to the majority decision because it preceeds it.
---
Another idea about Roberts' turn-around is that he realized that striking down the ACA, while being a short-term victory, would do so much damage to the court's reputation as 'neutral arbiter' that it would endanger the long-term project of undoing everything 'liberal' since the New Deal or the Civil War. Formally upholding the 'liberal' ACA (made by Heritage) while putting two poison pills in it* would on the other hand restore the appearance of neutrality (the conservative firestorm can only help there), keeping the blade sharp for the next assault on civil rights.

*the striking down of (de facto mandatory) Medicare expansion and the shifting of justification from the Commerce Clause to the right of federal taxation. The latter is of course not illegitimate per se but it opens the door for further reversals on seemingly settled cases of legislation based on the CC.

Shorter version: this may be a case of Roberts saying to his colleagues: 'You idiots are giving away the game and risk the whole project with your ideological instant gratification' while the other 'conservatives' see no need for pretense anymore.
This unfavorable reading would make the dissenters the more principled ones (in the sense of open Parteilichkeit).

"desperate" does not speak of weighty judicial reasoning

I don't buy this part of the argument. If you're a SC judge and another judge changes his mind in a way that you think is bad, then there's nothing wrong with being "desperate" to change his mind again. Desperation just means that you think these issues matter. There's nothing wrong with that.

To me, this makes Justice Thomas look like an insecure *nut*, not a "principled conservative".

Call 'em as you see 'em doc. Good show.

And suppose it turned out that Souter or Ginsburg have the same practice? And, BTW, when the liberal block votes predictably liberal, why is that not subject to the same scrutiny and analysis we see applied here?

And, FWIW, ACA did not pass muster under the Commerce Clause, although the liberal wing would have had it that way. It passed because, contrary to Obama's pitch and the language of the statute, the penalty was found to be a tax. A tax on failing to purchase a product. A tax on inactivity. A tax on existing.

Of all the faults of the progressive left, it's willingness to jettison principle in favor of expediency is its most glaring. The 'rule of law' is nothing more than a tool to be used when convenient and when it suits the argument.

Of all the faults of the progressive left, it's willingness to jettison principle in favor of expediency is its most glaring

Except that ideologically speaking, the liberal wing didn't have any abstract principle against an expansive use of the commerce clause (and, when it came to an insurance mandate, neither did Republicans until recently). If anything, it was Roberts who decided to jettison principle and ideology in order save the long-term legitimacy of the court and the conservative agenda.

And suppose it turned out that Souter or Ginsburg have the same practice?

Suppose my grandmother had wheels? Would she be a trolley car?

It passed because, contrary to Obama's pitch and the language of the statute, the penalty was found to be a tax. A tax on failing to purchase a product. A tax on inactivity. A tax on existing.

A tax on not paying your own friggin' medical bills and making other people pay them for you.

Of all the faults of the progressive left, it's willingness to jettison principle in favor of expediency is its most glaring. The 'rule of law' is nothing more than a tool to be used when convenient and when it suits the argument.

Remind me again which progressive leftists wrote the memos which allowed the Bush Administration to justify torturing prisoners?

Man, somebody here is BUTTHURT today.

McTx: And suppose it turned out that Souter or Ginsburg have the same practice? And, BTW, when the liberal block votes predictably liberal, why is that not subject to the same scrutiny and analysis we see applied here?

They don't go whining to the media about it?

Of all the faults of the progressive left, it's willingness to jettison principle in favor of expediency is its most glaring. The 'rule of law' is nothing more than a tool to be used when convenient and when it suits the argument.

You pick your poison. I'll take this over the fncking abject racism, sadism, jingoism, elitism, prejudice, and general lack of any sort of empathy exhibited by the "conservative right" in this country at the national level.

I have something about walking with wise men vs. fools in my head but can't quite place it.

If anything, it was Roberts who decided to jettison principle and ideology in order save the long-term legitimacy of the court and the conservative agenda.

Aside from the universal mind reading, of which this statement is emblematic, ruling against ACA might have diminished the court in liberal quarters, but elsewhere, not so much. Proof of this: Bush v Gore.

Courts are not in the popularity business. They decide the law, supposedly on how it's written and guided by precedent.

A tax on not paying your own friggin' medical bills and making other people pay them for you.

A perfect example of restating and mis-stating entirely the issue. It's a tax on people who don't want to buy health insurance that the left thinks they ought to buy for their own good and the good of others. And, it's not a tax, it's a penalty, by it's very wording.

In principle, there is no limit on what behaviors gov't can tax as a means of discouraging or encouraging. Too many football injuries? People drink too much, smoke too much, drown in swimming pools, get hurting rock climbing? Someone has too much money? Too fat, too thin, unhealthy diet? Tax it.


Remind me again which progressive leftists wrote the memos which allowed the Bush Administration to justify torturing prisoners?

Exactly. The progressive left was all about the rule of law when torture was the issue. When it comes to the Commerce Clause, the First Amendment, the Second Amendment, etc, well, not so much.

You pick your poison. I'll take this over the fncking abject racism, sadism, jingoism, elitism, prejudice, and general lack of any sort of empathy exhibited by the "conservative right" in this country at the national level.

Points for candor, Ugh. However, it is possible to act on principle and not be a racist or a jingoist. In fact, I'd say the former excludes the latter.

Courts are not in the popularity business. They decide the law, supposedly on how it's written and guided by precedent.

You have very eccentric views of the courts. For almost their entire history, they have been viewed as entities with varying amounts of legitimacy and subject to whatever forms of pressure due them in our system of checks and balances. I am precisely arguing that this is what Roberts had in mind, but you, who seem to think it impossible for a conservative to ever jettison principle, are confoundingly arguing otherwise, when it is clear that is exactly what he did.

ruling against ACA might have diminished the court in liberal quarters, but elsewhere, not so much. Proof of this: Bush v Gore.

Because conservatives never question the legitimacy of the courts? "Impeach Earl Warren"? Because liberal doubts of the courts' independence and legitimacy never have any effects? (You forgot court packing and the new deal) Your views are quite naive and rather historically narrow, when it seems precisely that Roberts figured, "I am not going to sacrifice the name of "The Roberts Court" on the altar of the right-wing lunacy of the conservative associate justices!

In principle, there is no limit on what behaviors gov't can tax as a means of discouraging or encouraging. Too many football injuries? People drink too much, smoke too much, drown in swimming pools, get hurting rock climbing? Someone has too much money? Too fat, too thin, unhealthy diet? Tax it.

But in law, not so much.
Roberts' opinion specifically states that there are limits on how far this power to tax may be taken - so in practice there are limits, which will undoubtedly be backed by five ninths of the court, though they remain to be litigated.

...and from a European perspective, taxing booze, cigarettes and gasoline is eminently sensible.

In principle, there is no limit on what behaviors gov't can tax as a means of discouraging or encouraging.

don't like it? change the law.

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

To me, this makes Justice Thomas look like an insecure *nut*, not a "principled conservative".

I don't see how this follows. Do you think that Thomas could find any useful legally instructive conversation in the news, that outweighs the chaff? If not, then no, I don't think any Supreme Court Justice should be expected to closely follow the news, as regards the case they're ruling on.

I guess that makes me an utter, insecure nut.

See Eric Alterman's What Liberal Media?

i suspect anyone who thinks the NYT is hopelessly liberal will be little persuaded by anything someone with Alterman's resume has to say.

don't like it? change the law.

Keep that in mind when a law is passed that you think runs afoul of the constitution, say a law limiting abortion rights. I suspect we'll be all about the rule of law and respect for precedent when the subject changes.

"I'm a bit surprised at you citing the NYT Examiner as evidence that the NT Times is not liberal. I took a quick look through the articles on its sidebar; the level of antisemitism is rather high, there."

Not to thread hijack--in fact, I'll go back to lurking after this--but I looked at the sidebar articles and it appears you are using the term "antisemitism" to mean "harsh criticism of Israel".

I suspect we'll be all about the rule of law and respect for precedent when the subject changes.

well ... as long as we're both going to admit that we're all full of shit and don't really care much for big lofty things like "the rule of law and respect for precedent" except as they help us achieve policy goals that we really like... it's a deal!

A tax on not paying your own friggin' medical bills and making other people pay them for you.

A perfect example of restating and mis-stating entirely the issue.

No, it's not.

It's a tax on people who don't want to buy health insurance that the left thinks they ought to buy for their own good

No.


Remind me again which progressive leftists wrote the memos which allowed the Bush Administration to justify torturing prisoners?

Exactly. The progressive left was all about the rule of law when torture was the issue. When it comes to the Commerce Clause, the First Amendment, the Second Amendment, etc, well, not so much.

Point ------------------------------->

Your Head

Conservatives do not give one (1) crap about the rule of law, ever. They care what they can get away with, as demonstrated by their stretching and in some cases simply ignoring the law to allow torturing prisoners and warrantless wiretaps, among other things.

And don't lecture me on commitment to the rule of law (or state's rights) regarding the Second Amendment, when it's your party trying to require states to honor out-of-state concealed carry permits, even if the holder would be otherwise ineligible to carry a concealed weapon in that state.

I don't see how this follows. Do you think that Thomas could find any useful legally instructive conversation in the news, that outweighs the chaff?

I'd say that if Thomas worked hard to really isolate himself from all outside sources of information, that might be fine. But given that he "avoids some publications altogether, such as The New York Times", that's not the case. It looks like he's perfectly happy imbibing conservative media but refuses to read anything that contradicts his ideological priors.

I mean, his wife is a tea party operative. Are we really to believe that they never talk about politics at home? Ever? Because if they do, it seems that an open minded person would find it beneficial to occasionally read stuff with a different perspective. Like, say, something in the NYT.

I would say to scratch "conservatives" and replace with "conservative politicians and lawmakers" in my post above, but as long as McK is going to go with "the progressive left," I see no reason to do so.

Anyway, dude, it's news to you that lawmakers talk one way about "the rule of law" and walk another, regardless of their party? Aren't you older than I am? I suggest you police your own team.

as long as we're both going to admit that we're all full of shit and don't really care much for big lofty things like "the rule of law and respect for precedent" except as they help us achieve policy goals that we really like... it's a deal!

I won't make that deal. Roe v Wade is the law, whether I agree with the reasoning or the outcome of the case. We're bound by it unless it's reversed or an amendment is passed overturning it. I deal with bad, but constitutional, law everyday. I am simply calling the progressive left out for it's hypocrisy and lack of principle.

Conservatives do not give one (1) crap about the rule of law, ever.

In other contexts, you have referred to this type of argument as tuo quoque. As for your specific examples, and not that this carries any weight with you, the legal argument in favor of torture was a fig leaf. As for warrantless wiretaps, I'll need an example of who is being tapped, but generally, a wiretap requires a warrant if the evidence to be gathered is going to be used for a criminal prosecution.

But, thanks for making my point. In your world, if skipping around the constitution is the only way to accomplish something *really worthwhile*, then that's what we will do going forward--torture, involuntary commerce, whatever. 'Necessity' is in the eye of the beholder.

In our bright, bright future, there will be no limits on what gov't can or cannot do, simply competing policies that the electorate will decide. You won't like the knife's edge that cuts against you.

And don't lecture me on commitment to the rule of law

Poor Phil, ever the victim. Find the lecture and quote it to me. Also, find anywhere where I self-identify as a Republican. Good luck with that.

I am simply calling the progressive left out for it's hypocrisy and lack of principle.

the "conservative" right has been likewise called-out.

that leaves us, where?

Out.

"I would say to scratch "conservatives" and replace with "conservative politicians and lawmakers" in my post above, but as long as McK is going to go with "the progressive left," I see no reason to do so."

That was well done, Phil. Thanks for that.

Here's one judge I agree with...

http://tpmdc.talkingpointsmemo.com/2012/07/reagan-appointed-judge-defends-roberts-says-gop-has-become-goofy.php?ref=fpnewsfeed
“I mean, what would you do if you were Roberts?” Posner said. “All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.”

In other contexts, you have referred to this type of argument as tuo quoque.

Well, yes, and I generally oppose it, but sometimes we got a mote/beam problem we gotta call attention to, pardner.

As for your specific examples, and not that this carries any weight with you, the legal argument in favor of torture was a fig leaf.

Indeed it was, and it had nothing to do with "the progressive left," so here we are, no?

As for warrantless wiretaps, I'll need an example of who is being tapped, but generally, a wiretap requires a warrant if the evidence to be gathered is going to be used for a criminal prosecution.

Did you sleep through the entire Bush administration? You know, the one where they were skirting getting FISA warrants for wiretaps, even though FISA was essentially a rubber stamp and almost never rejected warrant requests? And then they engaged in a whole bunch of sophistry and lies to justify it? You can't have missed it. It was in all the papers.

But, thanks for making my point. In your world, if skipping around the constitution is the only way to accomplish something *really worthwhile*,

I don't know who's world you're thinking of, but that isn't mine.

Poor Phil, ever the victim. Find the lecture and quote it to me. Also, find anywhere where I self-identify as a Republican. Good luck with that.

Please. I'm not the one who came in here all TEH PROGRESSIVE LEFT IS DESTROYING AMERICA CALL THE WAAAAAHMBULANCE, you are. If you aren't a Republican, good for you. No sane person should be. But don't pretend like conservativism has its hands clean when it comes to the stuff you're decrying here.

(BTW, then, can I take it then that you agree that Ohio, e.g., should not be required to honor a CCW permit from Florida, e.g., if the holder would be ineligible for such a permit under Ohio law?)

Well, yes, and I generally oppose it, but sometimes we got a mote/beam problem we gotta call attention to, pardner.

Right. It's ok to do unto others, but do not do unto me. That's kind of the larger point here.

And, to answer your last question: Yes, I agree.

"In principle, there is no limit on what behaviors gov't can tax as a means of discouraging or encouraging."

I was worried about this too, but the health care cases don't actually say that. Robert's majority opinion states that the Court will attempt to characterize Congressional tax/penalties appropriately based on their characteristics, not on their labels. A non-punitive tax is ok under the taxing power (but specifically NOT under the interstate commerce clause).

Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

This suggests limits to just cramming everything down the taxing power.

I was taxed just for existing for years before I buckled under the oppressive power of the state and engaged in a private financial transaction (acquiring a mortgage for the purpose of purchasing a primary residence) that relieved me of some of that burden, exchanging my freedom for a yard, a deck, air conditioning, and hardwood floors. Such is life on the road to serfdom.

And, FWIW, ACA did not pass muster under the Commerce Clause, although the liberal wing would have had it that way. It passed because, contrary to Obama's pitch and the language of the statute, the penalty was found to be a tax.

McK, correct me if I'm wrong but from what I've seen 8 or the 9 Justices did not consider it a tax. 4 opposed it outright. 4 supported it under the Commerce Clause. And the Chief Justice supported it, but for an entirely different reason. One which he could not, apparently, convince anyone else on the Court to buy into.

Doesn't that make it a bit over the top to say that the mandate was found to be a tax?

I don't think any Supreme Court Justice should be expected to closely follow the news, as regards the case they're ruling on.

When you find the straw man who agrees with the assertion that the Supremes should "closely follow the news as regards the case", burn him.

"Because conservatives never question the legitimacy of the courts?"

Of course they don't! Remember how quietly and peacefully conservatives have accepted their many, many losses as court after court ruled against them in their fight to prevent gay people from having equal rights under the law? Certainly the judge who originally ruled against Prop 8 in California didn't receive any death threats or have to wear a bullet proof vest because of the reaction of all the court-respecting conservatives out there.

The progressive left was all about the rule of law when torture was the issue. When it comes to the Commerce Clause, the First Amendment, the Second Amendment, etc, well, not so much.

You got me there, McT. I do tend to get more involved when someone is tortured to death, like, say, Dilawar of Yakubi, than when some discussion of the commerce clause occurs. Not to mention when we start worrying how a howitzer is like a muzzle loading black powder rifle.

But I should point out that these guys seem to be pretty consistent about their view of the 1st.

The liberal wing of the court is anything but consistent on the first Amendment. The semi consensus of the liberals even here is that citizens united should have been able to make and distribute their movie on Clinton, and that the majority just went too far in defending that right. Not so the dissenters on the Supreme Court: they stated that they wanted to uphold the lower court ruling which allowed the FEC the right to ban distribution of the political commentary movie around election time.

Obscenity is ok. Political speech near elections isn't.

And, of course, the same can be said of the Court's conservatives, who think that unlimited corporate spending on political campaigns is OK, but that it's not OK to claim that you received a military medal when you didn't, or to hold a sign that says "Bong Hits for Jesus."

Can we stop pretending that there's any wing of the Court that rules with absolutely pure, consistent results on anything at all?

(NB: lj's comment was about the ACLU, intended to address the distraction about the "progressive left" and their attitude about the rule of law. It was not about the liberal Justices on the Court.)

Phil's correct, McT's 'the progressive left' != "liberal wing of the court", at least in my understanding.

Tushnet's three part series (via LGM) is interesting reading, but flung accusations about what 'the progressive left' thinks, not so much.

Not so the dissenters on the Supreme Court: they stated that they wanted to uphold the lower court ruling which allowed the FEC the right to ban distribution of the political commentary movie around election time.

That's not an entirely accurate characterization of Stevens's dissent, nor of the lower court ruling. The lower court merely was following established Supreme Court precedent (McConnell v. FEC) which held that corporate financing of express advocacy was not protected by the First Amendment. The relevant election law didn't ban distribution. Rather "Section 203 prevents corporations and labor unions from funding electioneering communications out of their general treasury funds, unless the communication is made to its stockholders or members, to get out the vote, or to solicit donations for a segregated corporate fund for political purposes. This provision does not bar electioneering communications paid for out of a segregated fund that receives donations only from stockholders, executives and their families."

In other words, the point wasn't banning the movie. The point was that the funds that were used to make and distribute the movie couldn't be out of the corporation's general treasury funds. A separate fund (paid for by stockholders, executives and their families) could have been created by Citizens United, but it wasn't. The segregated funding requirement would merely ensure that the people who actually agreed with the electioneering would be the ones to fund it. By allowing corporate general funds to go towards electioneering, corporate executives are using corporate money in a way that many people (shareholders, employees, etc.) involved in a corporation may not approve of. The Supreme Court reversed its own precedents, and invalidated that funding distinction.

Oh, forgot to identify the quoted portion of my comment - it was from the decision of the District Court. The District Court was merely upholding the constitutionality of that provision, based on prior Supreme Court precedent, not banning distribution of the film. Had an unincorporated association of people funded the film's distribution, or had Citizen's United created a segregated fund to pay for the film's distribution, the film wouldn't have fallen under the corporate electioneering ban.

My recollection is that most of the commenters on this blog who were upset about the CU decision couldn't care less about the PPV movie, but were pissed about the broadness of the ruling, which opened the floodgates for corporate campaign finance. (And I know with great certainty that that was my position.)

A tax on inactivity.

Who doesn't use health care?

A tax on existing.

I don't expect I will be subject to the penalty. No one who doesn't make enough to file a federal tax return will, either. Nor will anyone who can't find insurance for less than 8% of their annual income. Don't I or any of these people exist?

My recollection is that most of the commenters on this blog who were upset about the CU decision couldn't care less about the PPV movie

That's correct, and that was the position of the liberal wing of the Supreme Court, as explained above. And as to those justices, the idea that they just toe the party line is simply false.

And, the Dahlia Lithwick essay, linked above, contains a link to a wonderful editorial from the New York Times, by William E. Forbath, a law and history professor at the University of Texas, describing the constitutional history of the distributive tradition. From that piece:

"[T]here is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than Madison was among its prominent expounders — in his draft of the Virginia Constitution, he included rights to free education and public land.

"Likewise, many framers of the Reconstruction amendments held that education and “40 acres and a mule” were constitutional essentials that Congress must provide to ex-slaves. They also held that equal rights and liberty for white workingmen required a fair distribution of initial endowments, including free homesteads and free elementary and secondary education, along with land-grant-funded state colleges."

Well worth reading in full.

hairshirthedontist,"My recollection is that most of the commenters on this blog who were upset about the CU decision couldn't care less about the PPV movie, but were pissed about the broadness of the ruling" isn't that what I said with "The semi consensus of the liberals even here is that citizens united should have been able to make and distribute their movie on Clinton, and that the majority just went too far in defending that right."

Sapient, Roberts' concurring opinion disposes pretty well Steven's idea that this could have been decided at just the 'non-profit treasury' level. Prior restraint on political speech is very disfavored, and generally can't be saved on hyper technical grounds because we think that making speakers prelitigate the hyper technical grounds is chilling of the free speech of those who don't have enough money to pre-litigate their speech.

I realize that your mileage will vary on that, but it sounds like a slam dunk to me. Now I'll agree that whether or not that should extend all the way to for profit corporations is up in the air, but the Stevens opinion appears to be perfectly willing to force non-profits to prelitigate the express advocacy issue every time it comes up, which would be every time any non-profit wants to talk about the stance of a particular candidate.

That isn't the standard we use for regular speech, and we shouldn't force it on to political speech which is after all the core of 1st amendment protected speech.

McKinneyTX:

I was hoping that you would give your opinion of the *article*, and specifically if you felt it made Thomas et al look good and Roberts look bad.

Specifically, this part:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
I took that to mean that Thomas (etc) don't read *anything* about the court during some times of year -- in addition to the usual judicial practice of not reading material about specific pending issues.

I also took it to mean that Thomas doesn't read the NYTimes *at all*, not because he thinks it's worthless in general, but because he doesn't want to be influenced by it.

Is my reading like yours? Or did you read the article differently?

OOPS! Sorry Seb, I read "should" as "shouln't" in your comment. So, never mind.

"shouldn't" even...

Prior restraint on political speech is very disfavored, and generally can't be saved on hyper technical grounds because we think that making speakers prelitigate the hyper technical grounds is chilling of the free speech of those who don't have enough money to pre-litigate their speech.

Not sure which part of Roberts's opinion you're talking about, Sebastian. And anyway, no one would deny a private human citizen's right to engage in political speech without prior restraint. The point is that corporations are not really private human citizens. They are statutory creations that sometimes represent an organization of individual people (and sometimes only represent one person). They are created for particular purposes, in order to limit their liability. Individual people cannot limit their liability unless they incorporate (or take advantage of some other statutory scheme). The trade-off used to be seen, before Citizens United, that a corporation, which can 1) live forever, and 2) have limited liability, is subject to more restrictions than an individual since, of course, they're not really human - their "personhood" was a legal fiction meant to allow them to own property, buy, sell and do other stuff that the state corporation statutes allow - all so that they can do business or achieve their corporate purpose. That, combined with the idea that money is speech, rather than that money facilitates speech, leads to the gross inequality in opportunity of expression (based on wealth) that Citizens United represents.


The point is that non profits organized around political messaging should almost certainly have the same rights as individual members.

Just a shot in the dark here as to what may have motivated Chief Justice Roberts to decide not to gut the PPACA:

Several provisions of the Act broaden access to health insurance coverage for those whom insurers would not otherwise cover. Insured persons tend to live longer than uninsured persons.

Perhaps Roberts had an epiphany and realized that being "pro-life" involves more than mere blastocystophilia.

I wonder. Did any self-styled "pro-life" groups submit amicus briefs in support of the provisions that broaden access to insurance coverage?

"The point is that non profits organized around political messaging should almost certainly have the same rights as individual members."

Exactly: Archer Daniels Midland is being used as an excuse here to gag National Rifle Association.

Further, there's no good constitutional distinction to be drawn between ADM and the NYT; Both are (Theoretically, in the case of the NYT.) for profit corporations engaging in corporate acts of speech and press. One owns printing presses, the other generally finds it more convenient to rent them, but this is not a constitutional distinction.

The alternatives to the CU decision were seriously bad from a 1st amendment perspective: Either accept that the government could censor almost all political speech, including essentially every last newspaper, magazine, or book publisher in the country, or officially humor the corporate media's claim that the 1st amendment protects the business of publishing newspapers, rather than everybody's use of printing presses.

The point is that non profits organized around political messaging should almost certainly have the same rights as individual members.

Why? If the individual members have that right, why should it somehow be amplified (duplicated) by the corporation? That statement keeps being made, but nobody will explain exactly why a corporation gets additional rights than the people who are associated with it. This is especially true since it's entirely possible that a corporation doesn't even fairly represent the views of the people associated with it. It's become a monster.

Exactly: Archer Daniels Midland is being used as an excuse here to gag National Rifle Association.

Further, there's no good constitutional distinction to be drawn between ADM and the NYT;

Nobody's being gagged. Every Archer Daniels Midland executive, employee and stockholder (who is an American citizen) has the rights that an American citizen has in the electoral process. As does every NRA member. And I didn't draw a distinction between corporations. People who are working for the NYT have constitutional rights, including the right to conduct their press business. Where's the problem? Who is being gagged? Why does the NYT as a corporation need an additional right?

The point is that non profits organized around political messaging should almost certainly have the same rights as individual members.

Not on the left. The fact that anonymous nonprofits (NAACP) were essential to the 60's civil rights movement may be acknowledged, but those times have come and gone and the social utility, and thus the constitutional protection that was once afforded, should no longer exist.

Now, adherents of views antithetical to more legitimate views are using the same tactic. There being no acceptable social utility to the views advanced, the protections should be withdrawn.

No longer should an individual who needs or desires anonymity to exercise free speech be allowed to do so. Nor should individuals of modest means be allowed pool their efforts and act as a corporate body because others, not of modest means, are doing so as well and their message is all lies, lies, lies.

Bad rich people are hiding behind the constitution to advance their agenda. So, let's reinterpret the constitution.

McCain/Feingold is perfectly pointless if it does not result in any speech or printed matter being stopped, it's a law dictating when speech isn't permitted! Isn't that the complaint about the CU decision, all the ways it prevents the government from silencing speech? Aren't all the horribles in that parade instances of speech or publishing?

And, of course, it does result in censorship, or would if upheld: If a hundred people individually can't afford to run an advertisement, and you make it illegal for them to get together to pay for it, the advertisement doesn't get run. If all the employees of the NYT individually get to exercise their rights, but can not cooperate to do so, a newspaper doesn't get published.

It's not a matter of extra rights, but of not losing the rights you have if you get together with somebody else to accomplish something.

There's no getting around it: The government asserted in the CU case the power to censor political speech, and properly so, because that's all McCain/Feingold was about: Censoring political speech, shutting people up when somebody might be listening. And the Court properly reacted to that assertion by saying, "No, you can't!", rather than, "We won't let you in this one particular instance! But go on threatening people..."

What are you talking about, McKinney? Of course people should be able to associate and pool their money and buy things, including the opportunity to "speak". They just don't get to be immune from suit.

How was "anonymity" important to the achievements of the NAACP? Give me just one example, please, rather than just spewing forth. How in any way was immunity from suit or corporate structure important to the goals of the NAACP? When were the NAACP's rights championed rather than the rights of its members and beneficiaries?

Brett, tautologies as usual.

How is immunity from suit important? This a joke? If an organization doesn't have that immunity from suit, then anybody in the organization does anything in the organization's name to draw a lawsuit, everybody in the organization can have their personal assets attacked.

To put this clearly: The government offers it's capacity for force to private individuals to attack others. "Lawsuits".

It then offers to individuals some degree of immunity from these attacks, (Which it enabled in the first place!) if you organize on the government's own terms.

If you organize on the government's own terms, the government claims the right to censor any speech you got together to engage in.

If you get together on terms which the government doesn't assert leave you open to censorship, you can be attacked by other citizens via the government.

Under these circumstances the only large organizations which are viable are those which have taken up the government's offer of immunity to government mediated attacks.

Which is why there isn't a single newspaper or publishing house in the entire country which isn't a corporation. You can scarcely survive, let alone compete, if you lay yourself open to lawsuits in the governments' own courts.

Oh, it matters a great deal.

McKinney:

You're a lawyer and I'm not, so I ask in all sincerity: can a corporation own property that belongs to the corporation but NOT to its stockholders?

Also: can a corporate charter be as simple as "XYZ Corp is established for the purpose of using stockholders' capital in any way that its CEO deems appropriate?"

I freely admit that these are the sort of questions with which one might begin the cross-examination of a hostile witness. You're not on the stand, of course, so you can just ignore them. If you do answer them, I have follow-ups.

--TP

Brett, there's great utility in a business being incorporated, and for limited liability for business reasons. Business involves investment and risk, and it makes sense to isolate an investment to bear that risk. That's the point of incorporating, so that assets not invested towards a business can be safe. Not-for-profits are the same: you don't want someone to trip and fall in your lobby and have your personal assets on the line for the law suit.

It's also perfectly appropriate to pool money and organize to support a cause. That was allowed prior to Citizens United. It was just that it had to be a separately identified advocacy fund rather than from the general corporate treasury. Of course, none of the corporate zealots here will recognize that all of the pooling and associating that people wanted to do was perfectly okay. It was even okay behind the corporate shield. You all keep saying "Banned!" but nothing was banned. There was just a requirement that corporations do something in a way that ensured that the people who were pooling their money were actually the people who were supporting the electioneering.

The fact that anonymous nonprofits (NAACP) were essential to the 60's civil rights movement may be acknowledged

Actually, that's an interesting point, because many members of the NAACP were anonymous in the Deep South during the early 60's. (one who wasn't is here). This page details the legal assaults that were made against them and these assaults basically removed the NAACP from the leadership of the civil rights movement in the Deep South. The result was that less centralized operations, with fewer targetable assets, such as the Southern Christian Leadership Council, stepped into the void. Not sure what lesson to draw from that, but I'm pretty sure it won't be the one Brett draws from it.

Of course, if you want to say that Medgar Evers and David Bossie are basically cut from the same cloth, you are welcome to make that argument. I look forward to your arguments for their congruence.

McKT wrote: "Bad rich people are hiding behind the constitution to advance their agenda. So, let's reinterpret the constitution."

I know some good rich people. Harold Simmons and Karl Rove are not among them.

Another wag wrote:

"Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.”
― Adam Smith

Regarding reinterpreting the Constitution, is the minority's opinion in the Obamacare mandate decision an interpretation, a reinterpretation, or an interpretation of a precedent of a reinterpretation of John Jay's, Alexander Hamilton's, and John Adams' Federalist Papers interpretation of the Constitution?

If the Constitution means precisely and literally what it says, then why does everyone, excepting Brett Bellmore apparently, have an interpretation?

As Ben Franklin said, when asked what he and the other Founders had wrought: "Lady, speak to the hand. Where's my interpreter?"

The word "anonymous" bothers me, too. If the NAACP was anonymous, how come we knew who they were. I mean, most of us.

My racist grandfather (otherwise a good man) thought HE know exactly who they were: anonymous agents of the international Communist conspiracy ...... the KGB in black face.

As to the idea that liberals aren't going to like it when a majority of conservative justices eventually force their reinterpretations actively, I'm already there. Next year, when affirmative action in college admissions and the heart of the Voting Rights Act are struck down, and the Defense of Marriage Act is upheld, I'm going to like it about as much as Sam Adams enjoyed laundering the King of England's dirty linen with his tongue in 1775.

Finally, I'm for this constitutional compromise between proponents of torture on the Right and proponents of Obamacare and the mandate on the Left: What say we permit torture of suspected al Qaeda operatives, as long as we also provide them with colonoscopies and force them to pay an insurance premium, and on the other side of the compromise, Dick Cheney agrees to purchase an insurance policy covering his medical care, and also agrees to let us waterboard him during whatever other procedures I pay for to keep him alive.

Post-finally, given the many, many hundreds of dollars I pay in the private individual market for healthcare coverage, with the ever-looming threat (until Obamacare) of cancellation and eventual unaffordability if I wasn't healthy as a horse, I'm now torn between relief when the doctor says I'm good to go, and demanding he look a little closer and find something ... anything ..., preferably expensive, to treat, just so I'm getting my money's worth.

Lest anyone chime in with "yeah, but no one's forcing you to purchase insurance!", whaddaya, f*cking nuts?

Thanks, lj, for these links.

This front page article from the New York Times today is interesting:

"American Electric Power, one of the country’s largest utilities, gave $1 million last November to the Founding Fund, a new tax-exempt group that intends to raise most of its money from corporations and push for limited government.

"The giant insurer Aetna directed more than $3 million last year to the American Action Network, a Republican-leaning nonprofit organization that has spent millions of dollars attacking lawmakers who voted for President Obama’s health care bill — even as Aetna’s president publicly voiced support for the legislation."

So what choice do I have, as a power consumer, to boycott my local utility, so that my payments don't go to the Republican limited government people? What choice would I have if my employer used Aetna for insurance not to support the Republican anti-ACA initiative? None. This is absolute crap.

"This is absolute crap"

Yup.

Some splitting of the hairs on the history of absolute crap, from a conservative now advising Mitt Romney:

http://www.forbes.com/sites/aroy/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/

Further, this tax versus penalty debate is utter crap as well. The only reason the cowardly Democrats and cowardly Obama called this thing a penalty was because the word "T#x" is now number eight on George Carlin's list of seven prohibited naughty words in full-of-crap America, after decades of anti-tax propaganda by the usual suspects.

Fine. At some point, I hope, liberals are going to become fed up with taxes too. Not the marginal rates, no. The first effing dollar of taxes, which conservatives seem to be comfortable with, at all levels of Republican government. Theft is theft ... from the first dollar to the last.

See, Sebastian (with whom I agree on his proposal to accomplish healthcare reform by allowing everyone into Medicare; unfortunately, that's too easy for demagogues of the usual stripes to tolerate) said this in previous post on healthcare: "For the most part, everyone gets taxed and the money goes into a government pool. That pool of money becomes the government's money."

That last might be believed by Sebastian, and me, and sapient, and MckT, but it is not believed, thanks to the right-wing wurlitzer, by the majority of Americans of the Republican persuasion.

No, as Neil Cavuto on FOX Business News (one small crippled example) repeated ad nauseum during the last big tax go-around, and the one before that: "It's our money. Give it back. It's not the government's money."

So when that time comes that liberals, like John Brown, become fed up with all taxes and the entire effing whining machine, remember that the fast and furious gun-running NRA has been arming us too.

I want it all back. In arrears.

A preview of the awful things that will transpire as the country has Romneycare forced down its gullet:

http://www.balloon-juice.com/2012/06/29/divorce-healthcare-shock-open-thread-scandal/

Epistemic closure is a pre-existing condition which can be cured by a simple procedure: opening the via an epistemicdectomy.

It's an out-patient service involving high explosives and local anesthesia.

An elected Republican sadist reacting, mistakenly as it turns out, to the news that folks with pre-existing conditions will no longer be murdered by our Rube Goldberg healthcare system, well, until al Qaeda wins the Senate and the White House:

http://www.huffingtonpost.com/2012/06/29/jean-schmidt-reacts-health-care-ruling_n_1638335.html

Republican one-celled creature Mike Pence, who died some time back from the total closure of the epistemic duct, which led to a fatal back-up of bile and a blackening of the heart's chambers, compared the Supreme Court's ruling to the 9/11 terrorist attack.

No wonder Justice Roberts looked queasy and a bit grim in the days leading up to the penalty, I mean tax, I mean penalty, I mean tax decision.

Elected Republican, right-wing blog, and FOX and CNN reaction to their mistaken notion that Obamacare had been overturned by the Supreme Court:

http://www.youtube.com/watch?v=EDkQZVJshgc

Also: can a corporate charter be as simple as "XYZ Corp is established for the purpose of using stockholders' capital in any way that its CEO deems appropriate?"

Corporations are often formed for the pursuit of any lawful business or enterprise. So, yes, subject to removal by the board, the CEO runs the shop.

Of course, if you want to say that Medgar Evers and David Bossie are basically cut from the same cloth, you are welcome to make that argument. I look forward to your arguments for their congruence.

The congruence lies in the fact that they both enjoy the same constitutional protections irrespective of their views.

Past tense for Medgar Evers. Which is sort of the point.

"You all keep saying "Banned!" but nothing was banned."

Banned isn't the operative term. The normally used term is that free speech is 'chilled' which is considered a bad thing, or 'abridged' which is the Constitutional term. Lots of things can 'chill' or 'abridge' free speech before we get to 'banned'. See about half of the obscenity cases: things weren't 'banned' they were regulated out of existence in a highly targeted and very speech chilling way. See also the Court's various discussions of why 'vague' speech restrictions aren't allowable--it is because the fear of litigation over a vague standard chills speech. Of course McCain-Feingold also banned quite a bit of speech, but focusing on 'banned' alone is trying to ignore quite a bit that is unconstitutional.

"Why? If the individual members have that right, why should it somehow be amplified (duplicated) by the corporation? That statement keeps being made, but nobody will explain exactly why a corporation gets additional rights than the people who are associated with it."

Because as you repeatedly point out, using a press can be expensive. I don't know about you, but personally I can't afford an ad in the NYT. But if I pooled money with like minded people, say with the ACLU, maybe I could. Now you seem to think that I should just pool it without any safeguards.

Maybe a couple hundred of us should just give all the money to one guy and let him spend it. That of course might run afoul of campaign laws on individual spending. Oops. Speech would get chilled. Also how would we enforce how it gets spent? It would be tough. Would each of us individually get a contract with him? A hundred contracts for one item of speech? Sounds burdensome, I bet speech would get chilled. Even if we just needed all the people to sign one contract it would be a big pain. And we would have to do it for each major instance, ongoing associations would be incredibly difficult. That sounds like it is abridging speech.

You seem to be irked with limited liability in corporations. If we don't like the hundreds of individual contracts for each speech expenditure, maybe the ACLU should be a partnership instead of a corporation. That would probably work really well. You could get 500 people together for a partnership with ACLU-like aims. And when it turned out that one of them gets in a drunk driving accident while associated with ACLU business, or molests a little girl while her mother brought her to an ACLU sponsored rally, guess who has UNLIMITED personal liability for 100% of their assets? Every individual in the partnership!! It would suck to lose your house because you wanted to support the ACLU. It would also suck to be kept from supporting the ACLU because they are paranoid and you sort of seem like the child molester guy.

That might chill speech.

Also, the NYT is a corporation. It spends money on speech. (And no, there isn't a special class of people called 'the press' who get special protections. The freedom of the press is the freedom to USE communication tools). If they can publish on political topics 30 days before an election other people can too.

"So what choice do I have, as a power consumer, to boycott my local utility, so that my payments don't go to the Republican limited government people?"

You don't have much choice. I wonder if there might be a problem with government mandated monopolies lurking somewhere in that question, but since libertarian ideas are uniformly stupid I wouldn't worry about it.

"Past tense for Medgar Evers. Which is sort of the point."

I'll take my free speech with the pith intact.

David Bossie.

I don't recall the word "liar" in the First Amendment. Lucky for him speech has been interpreted expansively.

But if I pooled money with like minded people, say with the ACLU, maybe I could. Now you seem to think that I should just pool it without any safeguards.

I don't know about US media but over here ads in the press irrespective of their nature have to be marked by the responsible party (or the final responsibility lies with the publisher). No publishing without someone officially taking responsibility (the V.i.S.d.P.).
As for political ads in connection with elections: If you are on the ballot you have a right to a certain amount of airtime free of charge (on TV and radio), the only way to deny you that is to prove in court that your ad violates criminal law. And despite what you may read about German political censorship, there have been very few cases of courts actually banning ads (and those few were direct calls to violence). We lack the US South but in the area of the ex-GDR we have a certain problem with Neonazis that take their clues from US RW militias and are not above the occasional assassination attempt against their enemies (and very rarely leftist extremists Molotowing back).

McT, I'm not really (or I try not to be) someone who demands that people should know things that I know, so please don't take this the wrong way. But as a Southerner, (insofar as Texas is part of the South), Medgar Evers is a name that you should know.

And even if it was just a momentary lapse, to talk about the NAACP without knowing who Medgar Evers was will get you in a lot of trouble.

Sebastian, you ignored a good bit of what I said.

As to the "chilling effect", sure, that's what the majority said, although I don't buy it. But, in any case, there was no ban, as some of the comments here have claimed. (As to the question of the chilling effect, there are plenty of time, place and manner restrictions on speech in many realms. The statute in question was a time, place and manner restriction. It's similar to election laws that prohibit electioneering within 20 feet of the polling place.)

And, no, I'm not irked by the principle of corporations having limited liability. I'm irked by the idea that they have limited liability, eternal life, and the same constitutional rights as a human. As I stated, I understand the utility of limited liability - I've been a principal in corporations myself.

I used to donate frequently to the ACLU, and still donate to many non-profits. I do so that the staff members who are paid to do the work of the organization can get a paycheck. They have the Constitutional right to speak, as do I. They don't need to invoke corporate constitutional personhood to speak on my behalf about issues which I support their efforts to speak about. I have no problem with their invoking their corporate status to protect themselves against personal liability for car accidents. The segregation of assets is what corporation law is about, not monopolizing the political process. I'm surprised that anyone could see what this is doing to our democracy and be okay with the fact that it has become a war of wealth.

I never argued that the NYT should have special status. It's staff and shareholders operate the corporation as a press, and those people and staff have a First Amendment right to do so. I reject the fact that the corporation is the entity that has the constitutional right. I don't reject the proposition that the NYT corporation has the right to own a building or an insurance policy.

Capisce? I have the right to speak. I have the right to pursue my individual right to speak through a corporation. The corporation doesn't have the right. (At least that's how I see things. Obviously, it's not the way the court sees things.)

I don't know about you, but personally I can't afford an ad in the NYT.

It's funny, because generally conservatives, when confronted with the fact that certain people cannot afford certain non-necessary things, respond with, "Tough crap, try being wealthy next time around, or do without."

I keep my speech chilled to precisely 66.6 degrees F. in order to ward off evil spirits and to serve it, like my rare bouts of revenge...cold. So obviously, if corporations are free to go on wild political goose chases with the corporate swag, then unions should be able to spend like drunken sailors on the candidates of their choice without asking for 'prior consent' of their members or those whom they represent. Fair is fair. That the Supremes have put their thumbs firmly on the scales in favor of corporations is a supremely embarrassing political act right up there with Bush v. Gore.

http://www.columbialawreview.org/assets/pdfs/112/4/Sachs.pdf>A link for Sapient and Sebastian to consider

Phil, ummmm ok.

Sapient, I don't understand what you're saying about the ACLU. What distinction are you trying to make between ACLU 'speech' and "I do so that the staff members who are paid to do the work of the organization can get a paycheck."

Are you imagining that individual ACLU employees pay for ad buys with their personal paycheck money? Are you suggesting that when making mailings informing people of this or that government violation and asking for action, that money should come out of their personal paychecks or it ought not be protectable by the First Amendment?

How would that work? Individuals pay for all their communications? The corporation can pay for the phone lines, but they can't be on the clock when making calls???

I feel like you're forcing me to strawman by having me argue against a seemingly ridiculous position that you can't actually hold.

Do you actually believe the above would be a better way to do things? (I supose the employees of the ACLU could get enormous salries in the multi-millions, and we could hope they spend it on good stuff....)

And even if it was just a momentary lapse, to talk about the NAACP without knowing who Medgar Evers was will get you in a lot of trouble.

I know who Medgar Evers is. You were asking for congruence between Evers and Bossie. I must be missing something.

My comment was a joke, Sebastian. I should've gone with my original, rejected punchline, which was "Have you considered investing in a rice cooker?"

I think there are differences between the NAACP and Exxon. Like, one is chartered for profit.

Trying to make distinctions directly based on non-profit status may not work; isn't the national Chamber Of Commerce a non-profit? But I don't see a problem with restricting for-profit corporations diverting money to electioneering.

In some sense Exxon's job is to make money within the existing markets and regulations. As a corporate entity it should be agnostic about what the regulations are and who creates them. Shareholders who would like regulation shifted one way or the other (for noble or baser reasons) could form a non-profit to advance candidates with those views.

How would that work? Individuals pay for all their communications? The corporation can pay for the phone lines, but they can't be on the clock when making calls???

It could work exactly as the Federal Election laws said it could work: when I contribute money to the ACLU, it could go into a designated, segregated fund for political advocacy. (Since the ACLU is all about political advocacy, and says so, that fund would probably be the mainstay of its operations.) Anyway, the money would be traceable from my donation, stemming from my intention to be a part of a political advocacy organization, to the end result of political advocacy. Whereas my payment of a utility bill does not in any way represent my intent to advocate for Republican politicians. Get it?

I think that past contingent's comment draws a useful distinction between profit and not-for-profit organizations. The trouble is that not-for-profit organizations can still conceal their intentions (such as the Chamber of Commerce, which I happen to know that many small business people think it's smart to join as a "networking" tool, but really don't realize how right-wing the organization's advocacy is). I would prefer designated, segregated, targeted accounts for political advocacy so that the people contributing are clear on where the money is going. I don't think that's a restraint on speech.

I see a rather large problem with restricting for-profit corporations from diverting money to electioneering: Newspapers are for-profit corporations, and a great deal of what they do easily qualifies as "electioneering", even if you set aside the parts openly labeled "editorial".

There really isn't any basis for differently regulating Exxon and the NYT ventures into publishing. Both are corporations engaged in using the printing press, and allied technologies. Both clearly have political preferences, and tailor what they print to further those preferences.

Either use of "the press" is protected for corporations, in which case it's protected as much for Exxon as the NYT, or it's not protected for corporations, in which case it's not protected for the NYT any more than Exxon. And do you want to live in THAT country?

Maybe you want to live in a country where the government gets to pick and chose which corporations' use of the printing press is protected, and which can endorse candidates without having the law land on them like a ton of bricks? Maybe even you want the ones allowed to endorse candidates to do so under the knowledge they could be shifted over into the other category at any time, for any reason?

No, let's protect all corporations' use of the press, rather than giving in to press censorship.

McT, Medgar Evers ability to enjoy anything, let alone constitutional protections of his speech, was taken away from him. So drawing an equivalence between the NAACP in the Deep South with Citizen's United is really something I think you would have thought about twice.

When David Bossie is assassinated in his driveway, I'll consider the anonymity provided under Citizens United to be fully violated and the circle ...... on the way to being partially closed.

That last, given that Redrum liar and cheat David Bossie is one millionth of the man Evers was.

McT, Medgar Evers ability to enjoy anything, let alone constitutional protections of his speech, was taken away from him. So drawing an equivalence between the NAACP in the Deep South with Citizen's United is really something I think you would have thought about twice.

I understand that Medgar Evers was assassinated. We must be talking past each other. I am addressing the constitutional issue of free speech, anonymity and corporate political speech. Corporations engaged in political activity served the country well and in a manner approved by the left way back when. Now, with corporations sending a different message, the left wants the rules to change. The difference is content, what someone is saying. The principle is the same, which goes back to my point that principle gives way to expediency when it collides with a policy preference.

McT, the NAACP had to go to the Supreme Court to get those protections, precisely because of things like the Medgar Evers assassination. Your comments suggest that you believe that the challenges that David Bossie faces are similar to the challenges the NAACP faced. That's why I think you need to maybe rethink your position. If you believe that because the NAACP fought for it, that means that in a very different time and under very different circumstances (like, say, the 30 day window before an election) Citizen's United should be able to avail itself of the same privileges, privileges that Evers died in front of his family's eyes for, surely you must realize how pathetic that sounds.

Your comments suggest that you believe that the challenges that David Bossie faces are similar to the challenges the NAACP faced. That's why I think you need to maybe rethink your position.

If you took that from my comments, I wasn't clear. Obviously. The only point I am making is that corporations give anonymity to people who might want to advance a view but are afraid of retaliation of whatever kind and from whichever quarter. So, restricting corporate speech is, in my view, unconstitutional and is generally a bad idea, and whether things were different then, or whether the NAACP is worthy and Bossie is not are beside the point. I don't care who exercises their right to speech, or when, before, during or after an election. I care a lot when someone wants to limit that right. So, if it's pathetic to argue that everyone gets the same rights as the NAACP, then I guess I'm pathetic.

Something lost here is, ISTM, the difference between corporate anonymity and individual anonymity, and I think it's the former that's driving a lot of the "left" objects to these days.

It's one thing for individuals to want anonymity in their views, after all they might be killed for them. But quite another for corporations to want such anonymity in "their" views, which, if made public, can only ultimately hurt their bottom line/donations.

Further, a difference between the NYTimes expressing its views vs. Exxon, is that if you want to find out what the NYTimes "thinks" -- either directly via the Editorials, or indirectly via who they choose to publish in the Op-Eds and the "slant" of their news coverage -- on any particular subject, you can do so on a daily basis for a small price.

Whereas Exxon goes to great lengths (I assume) to cover up its tracks when it pushes one "political" issue or another. Why? Because they risk alienating a substantial portion of their customer base. See, e.g., all the corporations that bailed out of ALEC once their participation became known. Is Exxon going to come right out and endorse Obama or Romney? Of course not. But the NYTimes does.

So, my proposal would be this: you are only allowed a single level of organizational/corporate anonymity. If an individual is a member of the NAACP or shareholder in Exxon or the NYTimes, you get anonymity. But if Exxon or the NYTimes wishes to express a view on a subject, they have to do so either directly, as the NYTimes currently does, or their donation to another organization doing the same would have to be publicly disclosed as such (I'd also deny corporations a tax deduction for such donations, but that's a different topic).

Not sure I see a constitutional issue with that.

I don't think the law is so blind that it could never distinguish the NYT from Exxon. One possibility is to give for-profit corporations a choice of charters:

  1. limited liability but only for media activities, or
  2. limited liability for all lawful purposes, with separation of electioneering funds

"Media activities" sounds vague, but I'm making a blog comment, not a final policy proposal. Press shield laws (requiring a subpoena rather than a search warrant, frex) already require this determination in ~28 states.

The fun test of any of these proposals is not so much Rupert Murdoch as William Randolph Hearst. I think Ugh's proposal could work there but I need to think more.

past contingent - I have had thoughts along similar lines, mainly only allowing membership organizations, with members solely comprised of individuals who must pay a fee annually and have an equal vote in affairs of the organization, to pool funds for political purposes, but that also runs into issues of definition.

I agree with past contingent and Ugh (thanks, Ugh, especially for your point differentiating corporate from personal anonymity), and appreciate any effort to restructure the law so as to lawfully stop unlimited corporate money from being part of the political process.

However (and we've covered this ground before, I realize), I think it should be kept in mind that there is no Constitutional right to incorporate. So whatever shelter a person has to find anonymity in the corporate structure, thank goodness there are other means since a state could repeal its corporation laws tomorrow.

State corporation laws are based on a model corporation act. Although I'll point to provisions in Virginia's corporation code, most state acts are similar:

§ 13.1-602. Reservation of power to amend or repeal.

The General Assembly shall have power to amend or repeal all or part of this Act at any time and all domestic and foreign corporations subject to this Act shall be governed by the amendment or repeal.

What this means is that a corporation, a creature of statute, is completely subject to the whims of the legislature. How this entity is equivalent to a "person" who has fundamental rights under the Constitution is beyond me. All anyone has to do to deprive a corporation of its Constitutional right to free speech is to pull its charter. And that fact is (or should be) known by everyone playing from the get go.

All anyone has to do to deprive a corporation of its Constitutional right to free speech is to pull its charter. And that fact is (or should be) known by everyone playing from the get go.

Not exactly. By pullng a charter, you take away the corporation's existence. What remains is an unincorporated association, i.e. a bunch of people doing something together.

The chances of any state legislature repealing their corporation code are zero. Sebastian wrote on this some time ago: the corporate form is essential, as a practical matter, to our economy. Not just ours, pretty much the whole world.

McTx: The chances of any state legislature repealing their corporation code are zero.

Well sure. But what are the chances of a state amending its corporation code to require all expenditures on "political activities" to be publicly disclosed? Or making such expenditures non-deductible? Or prohibiting them outright? Or requiring certain ownership information be public so the state doesn't act as a U.S. based tax haven?

I mean, I guess the chances of most of those happening are also close to zero; but I'm not sure we're debating the practical realities here, but what would be Constitutional should it take place. I don't see anything unconstitutional about repealing state corporate statutes, especially if sapient is correct (I assume so) and everyone is on notice that they could be amended or repealed at anytime.

If that's the case, then I don't see how amending a state corporate statute to provide flat out that a corporate entity has no free speech rights would be unconstitutional. And if that's the case, I don't see why the federal government couldn't use its monetary leverage (or, the "Bribery Clause" as noted law professor John Yoo once called it) to effectively force states to make that change.

But as you note this is all likely theoretical, as since we now have the corporate form and the resultant concentration of wealth, it will not let itself be legislated out of existence (which for some reason reminds me of this, now dated, story, to wit "A pair of otherwise distinguished physicists have suggested that the hypothesized Higgs boson, which physicists hope to produce with the collider, might be so abhorrent to nature that its creation would ripple backward through time and stop the collider before it could make one, like a time traveler who goes back in time to kill his grandfather.")

Limited liability corporations are everywhere, and have been for a long time. Not all of them take the full form of a 2012 Delaware corporation, however. Let's run back over the reasoning:

  • corporations are people
  • people have the First Amendment right to politcial speech
  • money is speech
  • limited liability is essential to modern firms
  • ...giving managers wide latitude to manage corporations on the behalf of owners
  • Therefore, managers of corporation can spend their shareholder's assets freely in campaigns.

sapient points out that, in principle, this chain can be severed by the charter death penalty. I don't think Delaware would do so, and so we run into that pesky federalism/race-to-bottom pattern. Given the need for coordinated state action anyway, it seems easier to go the amendment route than this path.

Backing up a step, the higher level of sapient's message is that corporations are created things, not laws of nature, and Citizens United and the chained SC rulings do not dictate that the present law and circumstances governing corporate political speech are immutable.

But what are the chances of a state amending its corporation code to require all expenditures on "political activities" to be publicly disclosed?

I think this was left intact by CU. I don't see a constitutional problem with this kind of disclosure.

Or making such expenditures non-deductible?

I am pretty sure these are not deductible already.

Or prohibiting them outright?

This probably goes too far. Lot's of corps give money to Planned Parenthood, NAACP as well as NRA.

I don't see how amending a state corporate statute to provide flat out that a corporate entity has no free speech rights would be unconstitutional.

The 1st Amendment reads "Congress shall make no law . . . abridging the freedom of speech, or of the press, . . .". It's not limited to *people*.

The 1st Amendment reads "Congress shall make no law . . . abridging the freedom of speech, or of the press, . . ."

But we all know, especially lawyers, that the First Amendment is not absolute. We've read a gazillion cases about time, place and manner restrictions being upheld, and about balancing First Amendment rights with other rights. So it's simply not accurate to pretend that the words include every possible thing. And since throughout the history of the United States, corporations have had been held to have more limited Constitutional rights than human beings, the Citizens United case was a departure from settled Constitutional law in favor of people who want an oligarchy.

The Constitution does not say that one is entitled to the legal status of a limited liability corporation while exercising these rights.

It instead says the converse, most clearly of late.

I may think CU is wrongly decided, but it's the Constitution we have. I'm not aware of an inalienable right to incorporate stemming from, say, freedom of assembly. But that part of the 1st seems like it'll come up in any challenge to a CU patch-up.

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Whatnot


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