Some of it is that the Court had to overturn precedent, but... this was not a particularly venerable precedent and it was only one in a broader body of case law. Some of it is the process — relisting, ordering new briefing, etc.... Some--and I suspect a lot — of it is recency bias — the most recent case is the most important case and the one to praise or criticize....Another theory: Criticism of that case merged nicely with the pervasive liberal rhetoric scaring us about the power and influence of corporations.
May 24, 2012
"Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law?"
Asks Howard Wasserman at PrawfsBlawg (via Instapundit):
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Private corporations, also known as "Businesses", are bad, up until the point they give generously to democrats.
Free speech is bad, unless you are singing the glorious virtues of the democrat party.
Because it was useful to use it as a proxy for an attack on political opponents. "They liked the decision, therefore, if the decision is bad, what they like is bad, so you should dislike them."
The transitive property! No matter how the Affordable Care Act case gets decided, you will see this... in epic proportions from the losing side's more vocal and angry sectors.
...especially as the bit of McCain-Feingold that CU overturned seems so jaw-droppingly unconstitutional, at least to me. Here was the government banning speech because of its political content -- the very essence of the 1st amendment. WTF?
Paco: I agree. The case was lost when the government lawyer admitted that, yes, deciding in the opposite direction would let the government ban books. At that point, it was just deciding the scale of loss.
1. Can someone please answer this:
If the 1st amendment doesn't apply to corporations, because they are not persons, why does the 4th amendment? It seems to me that, if a corporation were under investigation for food stamp fraud, the people who are upset about CU, would be arguing that the USDA could seize computers, records, anything, without a warrant.
2. And this:
Jeffy Toobin, in the New Yorker,
"Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment."
I don't watch TV. I reject Jeffy's assertion that "commercials are unavoidable." Furthermore, I thought that the liberal position, from the porn wars, was that video and magazines had just as much 1st amendment protection as books. In 1791 when the BoR was adopted, newspapers were high tech. I guess because it says press and doesn't say, thirty second spot, that it doesn't apply.
Thanks.
I thinks it's become obvious that liberals loathe private enterprise. I agree that this is simply a proxy for that loathing.
Poor Toobin. Congress also has no reason, and no justification, to ban any speech under the First Amendment. In fact, we're quite clear on the whole "shall make no law" part. In fact, they use "abridging," not "banning" or "preventing," even merely interfering with/reducing in scope free speech is something Congress shall make no law about.
These are the easy parts of the Constitution Toobin -- you don't even need to emanate any penumbras to get this.
Because it's a perfect Alinsky target.
Free speech proponents can't compromise the principle, which allows the demagogues to demagogue the class issue ad infinitum.
By and large, feeling good about an idea is more important to liberals than actually doing something. Speech is about ideas and can make you feel bad about things precious to liberals and good about things they oppose. I believe this is at least one reason many liberals hate free speech.
The other reasons, shared with conservatives, is control/power and not wanting to be embarrassed for their hypocrisy. (This latter is arguably the more important reason for the opposition of Citizens United amongst incumbents.)
People often forget who the "Citizens United" were. Yes, they were a corporation, although much smaller than, for example, CBS or the New York Times. And they weren't an evil for-profit corporation, like NBC or CNN. So what's the point of all the opposition to this decision? Do people want the NYT, CBS et al to come groveling to the government for permission to speak? If corporations like Citizens United have no right to opine, then let's shut down the editorial pages of all the nation's major newspapers - every one of which is organized as a corporation.
"Do people want the NYT, CBS et al to come groveling to the government for permission to speak? If corporations like Citizens United have no right to opine, then let's shut down the editorial pages of all the nation's major newspapers - every one of which is organized as a corporation."
-- The counter argument, I have heard, is that the press is different from corporations, and therefore, has additional protections compared to private individuals. Also, that what the press does isn't electioneering/promoting candidates, it is merely reporting facts, with the editorial section being an incidental part of their work.
Now, I'm not sure I buy it. But that's the counter argument. (Well, that and "Shut up.")
Here's the most useful passage from Kennedy's majority opinion in Citizens United:
"While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts’ own lawful authority. Substantial questions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux....
"Courts, too, are bound by the First Amendment . We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all to interpret a law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, 'must give the benefit of any doubt to protecting rather than stifling speech.'"
In short, the Constitution protects speech, and these distinctions based on the source of the speech miss the point.
"The counter argument, I have heard, is that the press is different from corporations, and therefore, has additional protections compared to private individuals."
If only it were true that media outlets were different than other corporation, but I think we've long sense been disabused of that.
Some fun examples:
---In the mid-to-late 2000s, The Cult of the Missing White Woman made money, just like the McRib makes money.
---In 2002-2003, pushing the acronym "WMD" to the point of household name status made money, just like IPhones make money.
---In 2005, the Terry Schiavo caterwauling made money, just like M&Ms make money.
---In 2008 ovaries and pigmentation made money just like an amazon link makes money. In 2010 the Tea Party made money just like LeBron jerseys make money.
Sales and ratings obliterate all other considerations with the four or five corporations that own the vast majority of our television and print media. The idea that it is concerned with ideology one way or the other is fairly silly--except for the ideology of Profit over All Else, to which we can count on it invariably adhering, however much we may see feintings in t'other direction.
Here's the most useful passage from Kennedy's majority opinion
What Kennedy is saying here seems blindingly obvious to me. Blindingly fuck-obvious, even.
"Also, that what the press does isn't electioneering/promoting candidates, it is merely reporting facts, with the editorial section being an incidental part of their work."
With a little bit of cut-and-paste:
"Also, that what Halliburton does isn't electioneering/promoting candidates, it is merely supplying oilfield equipment, with the political action committee being an incidental part of their work."
And the difference is what, exactly?
why does the 4th amendment?
Oh, that's fun. What about the 3rd? Surely Hollywood couldn't object to all their little production companies being ordered to house small military detachments.
Much of the whole point was that non-corps (unions and NGOs) could be influential entities but should have no competition - a simple, naked attempt to get one side's money out of politics.
Don't like corporations?
The answer is easy.
Don't work for them.
Don't buy their products.
"And the difference is what, exactly?"
-- Why, one of them produces -newspapers- and calls themselves the -press-.
(Well, that and "Shut up.")
Yes, in the end that's the argument. And the goal.
The crux of the war for men's minds and hearts has always been speech.
The printing press enablingspeech to circulate in broadsides and pamphlets created the USA. Quill pens copying one at a time were powerless while Ben Franklin was powerful.
200 years earlier the printing press had created the Protestant Reformation.
So in power monopolists have always smashed, locked up and other wise murdered all printer's presses and pressmen they can.
Ergo: the Fist Amendment seemed like Common Sense redux in 1782.
Tyrants will always react with hate to a Citizens United decision's affirmation of free speech which can lead to political reforms from free me who communicated ideas.
The recent insanity was how long laws establishing Political Contribution limits were pretended to be virtuous while they was always 100% un-constitutional on their face.
"Citizens United" is kind of catchy. You do not need to know what it was about. Details are hard.
I've hated corporations ever since they put Mr. Fezziwig out of business.
Once, in a class, I sat next to a lady (a full-bird Colonel in the Reserves, no less!) who was complaining and snarking on the Citizens' United ruling, that corporation aren't people, how stupid that was, greedy corporations just rip people off to make money, yada, yada, yada.
So I asked her: What did that Citizens' United corporation produce? What business sector or industry was it in?
She just made incoherent noises for a while.
Personally, I've always thought more information was a good thing.
Even partisan information.
Even lies, sometimes.
Because it tells me something about the people who are lying.
Why do liberals argue in favor of reducing information for the citizen/voter?
This is one of those cases where the question is the answer, isn't it?
Citizens United was cited by a Federal Court Judge in a recent decision to overturn two provisions of Act 10 in Wisconsin. So it protects the free speech of Unions as well as Corporations.
So it protects the free speech of Unions as well as Corporations.
More speech is always better than controlled speech.
"Criticism of that case merged nicely with the pervasive liberal rhetoric scaring us about the power and influence of corporations."
Yes, but just as much by lefty hatred for the justices composing the majority. So astonishingly shortsighted.
What is really strange about the outrage here is that political lefties used to be the strongest advocates for an expansive interpretation of First Amendment freedoms. The key cases from the '60s through the '80s often involved the NAACP as the party claiming First Amendment protection (e.g. NAACP v. Button, NAACP v. Claiborne Hardware), or anti-war protesters (e.g. Watts v. US, Hess v. Indiana). This was also the ACLU's core issue for a long time.
Going back a bit further, the political team that most needed (but didn't get) First Amendment protection was the lefties. Justice Holmes came up with the 'clear and present danger' test in a trio of cases in 1919, all involving prosecutions of leading socialists for advocating socialism (Schenk v. US, Debs v. US, and Abrams v. US). That pattern continued up to the infamous decision in Dennis v. US (1951), in which a communist was convicted of advocating the overthrow of the Govt by advocating communism. It was a dismal era in which the First Amendment offered almost no protection for politically subversive speech. The only real victory for lefty political speech during that era was Stromberg v. California (1931), where (for the first time) the Court used the First Amendment to strike down a state statute on grounds of vagueness. (California had prohibited the display of red flags for political purposes.)
The First Amendment is under attack again today, as the Govt tries to use criminal statutes prohibiting threats or harrassment to stifle speech criticizing Governmental actors, or that strike prosecutors as menacing in an un-PC way. It could use all the help it can get. Too bad the lefties have largely abandoned the cause for pathetically wrongheaded reasons.
"the pervasive liberal rhetoric scaring us about the power and influence of corporations" which would dilute the power and influence of the MSM that are already in the liberal's backpocket.
They don't much like Tweetees and bloggers either. That's why they keep trying to pass those anti-internet laws. One day when we are not watching, they might succeed.
One of the other great canards is that Citizens United gave rise to Super PACS. It didn't. Super PACS were the product of a Cirucit Court of Appeals decision, SpeechNow.org v. FEC.
And in practice, while Citizens United dealt strictly with "corporate" (as in corporations of all kinds including for-profits, non-profits, unions, etc.) electioneering, what we see with SuperPACs is that they are getting very little coroporate money; it is almost all "individual" money, which wasn't even a subject of Citizens United.
From anyting other than a emotional, anti-capitalistic viewpoint, it seems almost ridiculous to draft a proposed constitutional amendment to say corporations are not protected as persons under the Constitution, instead of drafting one to say that money (or even more narrowly, election oriented money) is not speech for purposes of the 1st Amendment.
Sales and ratings obliterate all other considerations with the four or five corporations that own the vast majority of our television and print media. The idea that it is concerned with ideology one way or the other is fairly silly--
Sure. That must be why their "mistakes" are always baised in favor of the Left.
---Fen, you mean like beating the "WMD threat" into the public consciousness?
---or how about the virtual amnesia about the Iraq war since. the pretense that the people promoting war with Iran come in unbiaseed and with a clean slate?
---Or how about when they convinced most everybody, in 2008, that the only alternative to TARP was financial armageddon?
War sells. Until it doesn't sell anymore, then you stop talking about it. Armageddons sell, and missing white women sell.
The "Look! shiny object!" phenomenon is not constrained to any single ideology, sadly. If it was, it would be easier to unravel.
Jeffery Toobin highlighted near the end of his article these two lines from John Paul Stevens dissent--
“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”
Stevens then wrote “It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
At best the conservative majority on the court were imprudently sliding down the Slippery Slope.
At worse they are corporatist whores.
Is there logic to the majority's argument? Sure, just as there is logic to the argument made by gun nuts that in order to protect 2nd amendment rights you have to allow people to freely own bazookas. It is simple-minded slippery slope argumentation that ends up being a bigger threat to what they are trying to be protect. If allowing people to own bazookas as a matter of right was allowed, the majority would quickly turn against the 2nd amendment.
There is no sign that corporate speech is being dangerously squelched and in turn having a negative effect on our society and politics. In fact the opposite is true.
The conservative majority on the court acted extremely imprudently. Unless, they are truly corporate whores. (And I believe that the conservatives on the court are not stupid.) In that case they will probably be more successful beyond their expectations.
But, there is a danger that; as Citizen United is expanded, Republicans take their new majorities and further engage in Democrat voter suppression, and they continue to further suppress the money and support from already beleaguered labor unions; our political landscape might be radically changed.
We are headed into a new era were one party will further dominate because of structural reasons, not because they have won the battle of ideas.
This will lead to a new level of cynicism and potential political unrest that has not been experienced before in this country.
But the die has been cast. So, lets sit back and see.
Another theory: Criticism of that case merged nicely with the pervasive liberal rhetoric scaring us about the power and influence of corporations.
... corporations that aren't unions or left-wing nonprofits, that is.
(I'm with Paco; McCain-Feingold was a disgrace, and the whole thing deserved to be thrown out.)
"There is no sign that corporate speech is being dangerously squelched"
From Wikipedia:
"The nonprofit corporation Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts... The lower court held that §203 of [McCain-Feingold] applied and prohibited Citizens United from advertising the film ... in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries."
Speech, squelched, because of its political content.
Jay Retread said: There is no sign that corporate speech is being dangerously squelched and in turn having a negative effect on our society and politics.
This (in the pre-Cit U world) was absolutely untrue. The corporation called Citizens United's speach was being dangerously squelched. They wished to put out a movie stating their point of view. The government told them that they could not. This is the very definition of squelching.
Does stopping speech about politicians have a negative effect on politics and society? If you don't believe that, you're living in the wrong country.
Paco, do you believe corporations should be allowed to spend as much as they want how ever they want on our elections?
Bonus question, if yes, do you believe this is going to lead to smaller, more limited government?
BTW, Ted Olson in arguing before the court made the case for a narrow ruling. The conservatives on the court instead decided to up end our political system.
Lets see the consequences now. We won't have to wait too long.
Lyssa,
You are welcome to answer the question I posed to Paco.
BTW, Citizen United could have gone out and raised money in an acceptable way. They had the resources to do so.
Citizen United (which is being used here as a symbol of the broader attack on our political system) will lead to corruption and deeper cynicism that will shake the foundations of our fading democracy.
And once again, small government conservatives are going to be surprised what they helped to unleash.
Do I believe U.S. citizens have the constitutional right to spend as much as they want how ever they want on our elections? Yeah, as long as they're not using the money to hire hit men or otherwise breaking laws.
I'm not necessarily happy about that, mind you. I think that the amounts of money that get spent in elections is obscene. I think the fact that elected officials spend so much of their time whoring for funds is obscene. But you're not going to fix that by passing blatantly unconstitutional laws.
"The Constitution is not a suicide pact."
That certainly is a handy aphorism to trot out when you want to do something unconstitutional.
Thank you for that answer Paco.
If the wealthiest individuals (much less corporations) are allowed to over whelm our political system with unlimited amounts of cash, will you blame the majority of the Americans who then reach the conclusion that our political system is a shame and is rigged to benefit the wealthiest few?
Paco, do you not see the need to balance the one with the other? Is there no room for prudence here?
Jay Retread said...
Paco, do you believe corporations should be allowed to spend as much as they want how ever they want on our elections?
Why not? Unions do. The sole purpose of a portion of union dues goes to influencing politics.
Bonus question, if yes, do you believe this is going to lead to smaller, more limited government?
Yes. The vast majority of corporation do not depend on government for their revenue.
BTW, Ted Olson in arguing before the court made the case for a narrow ruling. The conservatives on the court instead decided to up end our political system.
Lets see the consequences now. We won't have to wait too long.
"If the wealthiest individuals (much less corporations) are allowed to over whelm our political system with unlimited amounts of cash, will you blame the majority of the Americans who then reach the conclusion that our political system is a shame and is rigged to benefit the wealthiest few?"
This is, I assume, your nightmare scenario, and as such it is tailored to the specific things you fear most. I would argue that the wealthy -- and much more importantly, the well-connected -- have already done a considerable amount of stealthy system-rigging (anybody here think John Corzine is going to see the inside of a jail cell anytime soon?), and that laws like McCain-Feingold take away our rights without substantially doing anything to reduce the pernicious influences that already exist in American politics.
If the wealthiest individuals (much less corporations) are allowed to over whelm our political system with unlimited amounts of cash, will you blame the majority of the Americans who then reach the conclusion that our political system is a shame and is rigged to benefit the wealthiest few?
Do you think "money = win"?
If so, prove it.
All money does is allow the dissemination of information.
The more information, the better.
Why are you in favor of limiting information dissemination to only liberal channels?
Oh, put that way, I guess I can understand your purely selfish and dishonest intent now.
Nathan Alexander wrote
"Do you think "money = win"? If so, prove it."
Why do you think the media, and campaigns themselves, report the raising of campaign cash so closely? It is often the dominant story in a campaign.
You are either naive or an idiot if you don't recognize that there is a close correlation between money and winning in American elections.
But keep on deluding yourself.
Look all,
The die is cast. We are going to find out over the next decade or two what the suppression of unions and Democratic voters and the elevation of corporate campaign cash and the consolidation of media under corporate control will mean for our political system.
I believe a vast number of people will come to see what it already is. Both parties are under the effective control of corporations and the wealthiest individuals. And Paco you are right, there is something to be learned from the case of John Corzine.
The Democratic Party for many years now has been trying to compete with Republicans for corporate cash. Well, the few have won (thanks in large part to the Supreme Court) and the Democrats are now going to be starved.
My prediction, President Obama will lose. The Democratic Party will not be able to compete in the coming years. Republicans will go even further to suppress Democratic votes and further undermine already ailing labor unions. Corporate cash will flow even more lopsided to Republicans.
The Democratic Party will continue to exist to be the Washington Bullets to the Republican Globetrotters.
I also predict that true limited government conservatives will come to understand that they also turned out to be big losers with the new political paradigm.
But the die is cast. Lets sit back and see.
Jay: Why do you want to prevent College Democrats and Republicans from holding events during an election year?
Why do you want to prevent Fahrenheit 9/11 from having been produced -- oh wait, that got an exception. Never mind.
Why do you only want rich individuals, like Bloomberg, to be able to engage in public, political speech, while denying that right to groups of the poor?
Those are things that will happen if Citizens United is found the other way. I would not be able to ever have a voice, as I would need to combine my efforts with other like minded people into a company, corporation or other government regulated entity. The Koch Brothers could simply drop all their money and advertise as individuals and avoid the ruling. Why do you want to empower them and disenfranchise me? Why is their speech more free than the speech of many?
Matthew,
The court could have created a narrow ruling in Citizen United. Ted Olson, who represented Citizen United argued for that outcome. Instead, the "conservatives" on the court went way beyond that.
Once again Matthew "do you believe corporations should be allowed to spend as much as they want, how ever they want, to try to influence U.S. elections?
"Matthew,
The court could have created a narrow ruling in Citizen United. Ted Olson, who represented Citizen United argued for that outcome. Instead, the "conservatives" on the court went way beyond that.
Once again Matthew "do you believe corporations should be allowed to spend as much as they want, how ever they want, to try to influence U.S. elections?"
-- Roberts offered that as an initial opinion, but he was threatened with a politicized dissenting opinion. So, he agreed to go back and hear a longer, more detailed case.
Also, remember, the government's lawyer said allowing CU to be banned/delayed/whatever meant the government could call for banning books with political messages.
Defend that.
They should be allowed to spend money to "influence elections," by which I do not include bribery and outright dishonest actions with the perfectly legal (and protected) actions of speech. I am sure, though, you intend to consider the two things one in the same.
Matthew wrote
"Also, remember, the government's lawyer said allowing CU to be banned/delayed/whatever meant the government could call for banning books with political messages."
That was a stupid thing to say. Just like saying that the disallowing the unfettered ownership of bazookas threatens the ownership of hunting rifles.
It might be theoretically logical, but it has no basis in reality.
Jay Retread,
The die is cast indeed. There is no turning back, no more fauz concrete jungle society for us. The real thing is on its way. Within a span of maybe one generation, we have seen the science fiction genre shift to documentary status.
Heh. "Austerity." With a big ole side of "Family Values" and "Freedom Fries."
Matthew wrote
"(Corporations) should be allowed to spend money to "influence elections," by which I do not include bribery and outright dishonest actions with the perfectly legal (and protected) actions of speech."
Fine. That die has been cast. We are going to see our political system further over-run with corporate and the wealthiest individuals cash.
Bring it on.
I predict a vast majority of Americans are going to become even more cynical and see our system of government to be rigged to benefit the wealthiest few. I also predict it will not lead to a smaller, more limited government.
Do you disagree with this?
Do you disagree with this?
Let's huddle back in nine years and I'll let you know. Do you think Obama will try to win back the White House in 2016?
"Do you disagree with this?"
Yes. If the U.S. is a dystopian hellhole ten years from now, I doubt that Citizens United will have been the cause.
If the U.S. is a dystopian hellhole ten years from now, I doubt that Citizens United will have been the cause.
Agreed. It'll be all those damned skin jobs running around. Remember the score; if you're not cop, you're little people.
Personally, I suspect you and Harrogate have been watching Blade Runner and Robocop too much.
"That was a stupid thing to say."
-- It is an even stupider thing to support a decision that would force someone to say that.
"We are going to see our political system further over-run with corporate and the wealthiest individuals cash."
-- It wasn't my guy who decided to opt out of public financing and shoot for raising a cool billion. In fact, last time around, it was my guy who spent money from his limited warchest to cut an ad congratulating the other guy -- and my guy wrote McCain-Feingold (in all its flawed glory), as opposed to, you know, letting lobbyists run an administration. If you are afraid of corporations infesting our politics... why did you vote for the guy who, from the word 'Go' signaled he was for sale?
"I predict a vast majority of Americans are going to become even more cynical and see our system of government to be rigged to benefit the wealthiest few. I also predict it will not lead to a smaller, more limited government."
-- If you don't want it to be rigged for the wealthiest few, why do you support a decision that disempowers the many from combining resources to take on the wealthiest few? Remember, if corporations are disallowed this, rich individuals -- like Bloomberg's anti-second amendment ad during the Super Bowl -- can still pay out of pocket, since they would thread the needle and be "people" not "corporations." Why do you hate the poor?
Vote for is the wrong word, I think "support" is more generic and accurate.
"Cosporations are people," is an actual tag for this post. And it seems unironically intended. Christ on a crumb heap.
Why is it aimed at CU?
Because after Obama blew up four decades of Democratic talking points on public financing they had to find another way to complain about the evils of money in elections.
"Why pick on Citizens" ?
Are you sure you have a JD ?
..
This is the case law that enabled all the asshattery that is what we call "campaigning".
..
I can see the argument for 'corporations are people,'
However :
Corporations are NOT Lawmakers.
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