ADDED: "doo buh TAHN tay: The attitude of the Montana Supreme Court towards Citizens United."
ALSO: Here's some detail about that Montana case, from George Will.
Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law, passed when copper and other corporations supposedly held sway, that bans all corporate political spending. The state’s Supreme Court refused to do this, citing Montana’s supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations’ failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court.
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18 comments:
Could the Montana decision be an occasion for the SCOTUS to re-consider the logically weak incorporation doctrine?
Althouse, there is a full George Will Op-Ed today on Montana FWIW
"Could the Montana decision be an occasion for the SCOTUS to re-consider the logically weak incorporation doctrine?"
You mean the doctrine that the First Amendment applies to the states via the Fourteenth Amendment?!
(Or do you mean the notion that free speech is protected even if the source of the speech is an incorporated entity?)
Sorry; I sacrificed clarity in the interest of brevity. I meant your first item: "the doctrine that the First Amendment applies to the states via the Fourteenth Amendment".
It's best to make sure no one holds political sway except for your own chosen ideology. Fair is fair after all.
Bob, I agree that incorporation is a logically weak argument, but you're talking about an unimaginable change in a huge portion of constitutional law, including how we as a nation consider almost all of our individual rights. Never gonna happen (and, if it did, I would expect that we'd see an Amendment stating incorporation pretty quickly).
Lyssa, it does seem unimaginable. But this case is interesting. Incorporation supports both classically liberal and modern liberal causes. It's something of a wedge issue. And the logical invalidity of incorporation is a problem for strict constructionists.
So...imagine that Ginsberg et al., desiring overturning Citizens United and other First-Amendment-hostile laws, could band together with strict constructionists like Scalia and Thomas. Might they consider upending the whole thing? This seems like the ticket!
Not that I really want to see it happen. I just wish that judges who pretend to be logical and philosophical would actually do so.
...also, your solution, "we'd see an Amendment stating incorporation pretty quickly", is the way the Constitution is supposed to work. I agree with you that that would happen.
"Sorry; I sacrificed clarity in the interest of brevity. I meant your first item: "the doctrine that the First Amendment applies to the states via the Fourteenth Amendment"."
It wasn't that it was unclear. It was that it's so beyond the pale that I looked for something more likely that you might have meant to say.
Maybe some day the law will change like that, but from the perspective of today... it seems unimaginable.
The closest thing I can think of is the argument that the Establishment Clause isn't incorporated (which Justice Thomas says). I don't think we're anywhere near even that argument getting anywhere.
The idea that free speech would be left to the states? Crazy!
"So...imagine that Ginsberg et al., desiring overturning Citizens United and other First-Amendment-hostile laws, could band together with strict constructionists like Scalia and Thomas. Might they consider upending the whole thing? This seems like the ticket!"
It's an interesting fantasy. I agree that liberals have lost the enthusiasm for First Amendment rights... and that was once their favorite right... back in the 50s and 60s...
It started getting in their way in the 1980s.
I think it would be rather difficult to draft an amendment stating the incorporation doctrine, given that (IIRC) not every provision of the first eight amendments has been incorporated.
wv: 34 urequebs. I don't know what they are, but I didn't order any.
George Will crosses back and forth, on a daily or more often basis, over the line between "wise stalwart" and "idiotic fuddy-duddy." Unfortunately he doesn't know a fraction as much about law as he thinks he knows, and he's almost always on the wrong side of the line when he writes about legal subjects.
Nothing in Citizens United would prevent any state, if it so chose, from abolishing the corporate form of existence altogether.
If a state chooses to permit people doing business within its boundaries and jurisdiction through incorporated entities, however, it may not -- by purportedly attempting to regulate terms of corporate existence and maintenance -- infringe on the Free Speech rights (under the First Amendment to the U.S. Constitution) of such person or people when they're speaking through the corporate business they've used the mechanisms prescribed by state law to create.
Let me hazard a guess that the MT Supreme Court is predominetly composed of liberal democrats. This appears to be another Gore vs Bush where a state Supreme Court ignores the obvious violations of the US Constitution and makes shit up.
Beldar makes an interesting point (as an intellectual exercise) but in reality no state would ever abolish the corporate entity status. Citizen's United will stand. There is no method to distinguish between 'good' corporate speech and 'bad' corporate speech. Is Greenpeace's speech more legitimate than Exxon's? Is Harvard's more legitimate than a private university's speech? Are the copper mining unions speech more legitimate that the copper mining companies speech? The left is just angered because the game is no longer tilted in their favor, they have no real principles.
Contra Beldar, it would make no difference if Montana abolished the corporate form. The reality is that most of the entities doing the political ads are not incorporated locally (Delaware is the usual venue). Any that had been formed in Montana could easily re-incorporate in Delaware (or elsewhere). Corporations created under the laws of other states would still have rights under Citizens United, and there would be nothing Montana could do to prevent them from exercising those rights.
Citizens is about FREE SPEECH. If Corporations cannot buy political ads (it's NOT about political DONATIONS), the Newspaper Corporations cannot offer political opinions either--- and there is the crux of the Leftwing uproar, The Newspapers almost always lean left, and feature full page "opinion" about candidates--- they don't want competition. Thus they lie--- typical--- and when caught in the lie-- they double down.
""Sorry; I sacrificed clarity in the interest of brevity. I meant your first item: "the doctrine that the First Amendment applies to the states via the Fourteenth Amendment"."
It wasn't that it was unclear. It was that it's so beyond the pale that I looked for something more likely that you might have meant to say.
Maybe some day the law will change like that, but from the perspective of today... it seems unimaginable.
The closest thing I can think of is the argument that the Establishment Clause isn't incorporated (which Justice Thomas says). I don't think we're anywhere near even that argument getting anywhere.
The idea that free speech would be left to the states? Crazy!"
Come now "law prof". You would think a "law prof" would know how to answer this. The 14A did not add any new privileges or immunities, just guaranteed what citizens already had. Thus the Montana Corporations have a perfect 14A argument that their 1st Amendment right is being violated. They don't gain the right by the 14A, it is merely guaranteed by it. Natural rights are given by god, not the 14A or the government. Duh!!! You, who don't even know what a natural born Citizen is (or are too cowardly to say), like many others of your ilk, are poisoning young minds. No wonder lawyers are such a despicable lot.
By the way my case against Obama, and the SOS of Fla., gets a hearing on Monday, June 18. Not that it's news to your blog or anything.
"The object of the fourteenth amendment in respect of citizenship was to preserve equality of rights and to prevent discrimination as between citizens, but not to radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people". In re Kemmler, 136 U.S. 436 , 10 Sup. Ct. Rep. 930, McPherson v. Blacker, 146 US 1, 39.
"We decided in Minor v. Happersett, 21 Wall. 162, that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that that amendment does not add to these privileges and immunities, but simply furnishes an additional guaranty for the protection of such as the citizen already has;" 146 US 1, 38
Ann Althouse said...
" "So...imagine that Ginsberg et al., desiring overturning Citizens United and other First-Amendment-hostile laws, could band together with strict constructionists like Scalia and Thomas. Might they consider upending the whole thing? This seems like the ticket!"
It's an interesting fantasy. I agree that liberals have lost the enthusiasm for First Amendment rights... and that was once their favorite right... back in the 50s and 60s...
It started getting in their way in the 1980s."
The Left loves free speech until someone disagrees w/ them.
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