Skip to main content

View Diary: MONTANA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (288 comments)

Comment Preferences

  •  Thanks. Great news. Will read (31+ / 0-)

    the opinion to get a fuller understanding of how they deal with Citizens United. Appreciate the heads up.

    Further, affiant sayeth not.

    by Gary Norton on Sat Dec 31, 2011 at 10:42:55 AM PST

    •  Corporations are a legal creation - unlike people. (84+ / 0-)

      The basic logic of Citizens United, drawing an equivalence between humans and corporations has always been deeply flawed.  The meta-rationale for fundamental civil rights is grounded in the idea that God (or nature) imbued people with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness (as codified in our Constitution and the Bill of Rights).  The reason government can't mess with these rights is supposed to be that these rights flow from God or nature, and thus can't be legitimately curtailed by mere people.

      Corporations are an entirely different matter.  Corporations are entirely human-created, by governments and their legal systems.  Corporations aren't "people" because God or nature made it so.  Corporations are "people" because various legal systems (some democratic, some authoritarian, some dictatorial) chose to make it so.  

      Unlike God or nature, what governments create (like corporate law) governments can change.  Conversely, humans can't legitimately change creations of God or nature (like fundamental human rights).

      This is not a complicated concept, and it is fundamental to a basic understanding of the basis for fundamental rights, both philosophically and legally.  Citizens United, like Bush v. Gore, was just a predetermined political result in search of a rationale by an activist conservative Supreme Court.  The good news about that is that the legal rationale for Citizens United is frightfully weak, and like Dred Scott, its just a matter of time before a more intellectually honest bunch of Supremes overtimes it.  Hopefully it won't take (like Dred Scott) 60 years for it to happen.

      Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

      by The Knute on Sat Dec 31, 2011 at 11:07:08 AM PST

      [ Parent ]

      •  It, too, think Citizen's United was wrongly decide (19+ / 0-)

        but that is not the point now. The question is whether this case presents a basis to limit CI's applicability. Having just read the opinion, I think it does, which I discuss below.

        Further, affiant sayeth not.

        by Gary Norton on Sat Dec 31, 2011 at 11:18:14 AM PST

        [ Parent ]

        •  "I" not "It" ya dummy/ (1+ / 0-)
          Recommended by:
          Seneca Doane

          Further, affiant sayeth not.

          by Gary Norton on Sat Dec 31, 2011 at 11:47:18 AM PST

          [ Parent ]

        •  The Supreme court majority knew exactly what it (13+ / 0-)

          was doing as it upheld unlimited spending in electoral contests and struck down any sort of fairness rules that placed limits on campaign advertising spending.  It wanted to reserve the rule of the wealthy players, the corporations and surrogates over any individual of ordinary means. This was an intentional sweeping away of the ordinary citizen typical of the millions and millions of people with modest means ability to compete, to exchange on a level playing field.

          Just as they did in Bush v. Gore, intervened to stop a Florida recount and jump to a conclusion to end the process on their own partisan terms, they also said "this B v G decision is no precedent, a one time fix for a troublesome process." The Citizens United case was also a fix, by the millionaires on the court for their other millionaire and billionaire friends  so they could wage effectively outside amounts of influence in and over the electoral process with their excessive reach and control now enshrined in law.

          There have been many, many years where the SCOTUS has sided with the slaveowner, apartheid, with the financial industry and the magnates of banking and commerce to keep in check the ordinary citizen.

          We were forced to fight a civil war over unresolved and troubling questions of feudalism of which slavery was a legal part , not a mistake but a historical practice that we could not get rid of even forty or fifty years after many countries in the world had done so.  The largest impact decisions were unusual  and rare moments after decades of sloth and keeping the lid on urgently desired reforms and rights.

          I believe when the state case is taken up, the Supreme Court  will reach, crafting  a decison that validates CU in stripping limits for the Federal offices contested in Montana and will cripple or severely limit the applicability of the precedent and Montana's law.  They have every incentive to do so.  This is about control, not about some mythical "fairness" standard.

          If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever.... well, you will be run off in 20 minutes., you will leave town having wasted your effort 6/18/11.

          by BeeDeeS on Sat Dec 31, 2011 at 05:23:07 PM PST

          [ Parent ]

      •  Speech Is Not a Freedom of the People. (7+ / 0-)

        Not in the Bill of Rights.

        Bearing arms is a right "of the people." Being secure from unreasonable search and seizure is a right "of the people."

        In the 1st Amendment though it's the speech itself that possesses the freedom. It's not freedom of "the peoples' " speech or freedom "of the people to speak," it's "freedom of speech."

        Keeping the content unrestricted means it doesn't matter where the content came from. That's got to be coloring the so-called logic SCOTUS applied.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sat Dec 31, 2011 at 11:28:35 AM PST

        [ Parent ]

        •  That's exactly the reasoning of CU (6+ / 0-)

          that the First Amendment's restriction on Congress does not depend on what is the source of the speech.  The majority expressly recognized that corporations are not "natural persons" (contrary to a pervasive myth that they said corporations are people) but held that the First Amendment was not limited to speech (which includes books, magazines, movies, etc.) put out by "natural persons."  

          If the First Amendment mentioned some rights of "people" similar to those other amendments, the outcome might have been different.  

          •  "...(T)he outcome might have been different." I.. (17+ / 0-)

            ...doubt it.  The particular rationalization on which the decision was based would have had to be different.  But as with many recent SCOTUS decisions (e.g, B. v. G), the reasoning is chosen to fit the result that these hypocrites want.  

            A man? A prisoner! A cage? Iron! Did Noriega care? No, sir! Panama!

            by Obama Amabo on Sat Dec 31, 2011 at 12:05:29 PM PST

            [ Parent ]

          •  However (8+ / 0-)

            However, if political contributions are a form of speech, this sets up an inequality based on one's financial status.  In other words, one person can afford $2000 worth of freedom.  Another person who cannot afford the $2000, but only $20 is at a disadvantage.  

            This whole concept including "corporate personhood" is just bizarre.  

            I'd love to know how this all fits into "equal protection under the law" when one's financial status makes one unequal.  

            Republican presidential candidate Newt Gingrich: I'm loving it.

            by NyteByrd1954 on Sat Dec 31, 2011 at 02:33:36 PM PST

            [ Parent ]

            •  So? (6+ / 0-)

              You also might not be able to afford the same caliber attorney or rifle as me either.

            •  NyteB - that does not make it unconstitutional (2+ / 0-)
              Recommended by:
              Lujane, NWTerriD

              In Valeo v Buckley (1976) the SCOTUS decided that money spent by an individual on his own campaign, or as an individual advocate, was a protected free speech right. The fact that not everyone has the ability to advocate  to the same level, because of their financial status, isn't a compelling constitutional argument and has been rejected by the Court.

              Here is an example of the issue that the Court struggles with: I own a newspaper, protected by the First Amendment, and you are a candidate for office. Every day I can run negative, damaging, stories about you on my front page and editorials supporting your opponent. Should you not be able to buy as many ads as you can afford, using any media available to you, to balance my First Amendment freedom of the press?

              "let's talk about that"

              by VClib on Sat Dec 31, 2011 at 05:37:42 PM PST

              [ Parent ]

              •  Media ownership (0+ / 0-)

                is or at least was a prerequisite to running for office, in Latin America when I lived there.

                My Dad installed the Presses 8-)).

                Who else was going to toot your horn for you.

                I see that as distinct from allowing "Citizen Corp" funding campaigns, while they want to deprive the labor unions of the same right and privilege, with "written agreement only" political contribution nonsense.

                As a shareholder, until AMR completes bankruptcy, I resent the support the company gave to politicians without asking me. Of course I didn't hold millions of shares either.

                Maybe that kind of decision should be made and required based on being a person rather than the amount of stock held?

                •  CU does not allow ANY "campaign funding" (0+ / 0-)

                  It only allows unlimited expenditures by unions and corporations for independent expenditures that must be independent of and cannot be coordinated with a candidate's campaign. I don't believe that unions should have to ask its members before it makes political contributions nor should shareholders need to approve political expenditures. I think the case the GOP is trying to make is that political expenditures by unions is a material item while direct expenses for advocacy by corporations, while they may be significant dollar amounts, are immaterial as a percent of total corporate expenses. There is no basis from a legal or accounting perspective why shareholders should be asked for permission to spend several million for political purposes when shareholder approval isn't needed for specific expenses that can cost hundreds of millions.

                  "let's talk about that"

                  by VClib on Sun Jan 01, 2012 at 02:25:14 PM PST

                  [ Parent ]

          •  in which case the answer is to revise the 14th... (4+ / 0-)

            .... Amendment, to state that the rights enumerated in the Constitution are the rights of natural persons only.  

            This should be at or near the top of OWS' agenda for 2012.

            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

            by G2geek on Sat Dec 31, 2011 at 08:42:26 PM PST

            [ Parent ]

            •  In which case the government could seize (1+ / 0-)
              Recommended by:
              coffeetalk

              the property of corporations without due process or shut down the NYT any time they pissed off a politician.

              Great idea.

              •  no more so than today; here's how: (0+ / 0-)

                The core legal rights of a corporation are:

                1)  To buy, own, and sell property in its own name, and

                2)  To sue and be sued in its own name.

                Those rights can be preserved and others selectively granted, such as due process of law, without leading to the present scenario of unlimited "corporate speech."  

                The entire concept of "legal personhood" applied to corporations, is a semantic category violation.  It blurs the fundamental distinction between a "person" and a "thing," which in turn is based on the distinction between a living object and a nonliving object, as defined in biology.  

                I have no problem with corporations existing as "legal entities," or "legal objects," that have specific enumerated rights.  Those rights would prevent abuses such as the shutdown of the NYT for pissing off a politician.  And the limits on those rights would prevent abuses that are not hypothetical but clear and present.

                "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                by G2geek on Sun Jan 01, 2012 at 09:42:57 PM PST

                [ Parent ]

                •  That may be what you want (1+ / 0-)
                  Recommended by:
                  coffeetalk

                  but it would require a whole slew of Constitutional Amendments because there is no support for this distinction in the US Constitution.

                  You would also remain with the fundamental issue that your regime would allow GE (owner of NBC) to spend unlimited money campaigning against politicians that voted against its interests but would not allow similar rights to companies such as United Technologies (another conglomerate that happens not to own a media company.)

                  •  only one; and your good arguement. (2+ / 0-)
                    Recommended by:
                    ozsea1, BMarshall

                    One word.

                    Insert the word "natural" before "persons" in the 14th amendment, and it's done.  The rest evolves by case law.

                    So about your good arguement.

                    Admittedly you raise a serious issue with respect to media corporations as contrasted to non-media corporations.  So let's take that one piece at a time:

                    First, separate carriers from content.  This gets the telcos and broadband providers back to the "content-neutral" stance that existed during the days of telecom regulation.  They can sell off their content divisions to become separate corporations, with regulation preventing interlocking directorates.  

                    Next, regulate cable TV under the same FCC provisions that apply to over-the-air TV and radio.  Bring back the Fairness Doctrine and to that add a Local Content doctrine.  

                    (As for "it'll never happen," tell it to the black man in the White House.  Never say "never.")

                    Now what we have left are "pure" content corporations: from the traditional print & broadcast media to the new creations of cyberspace from dKos to Netflix to "social (surveillance) media."   Those are the "pure case" in favor of your arguement that media corporations are somehow substantially different to other types of corporations.

                    And the way I would address that issue is as follows:

                    The rights of speech and press inhere in the "natural persons" of the corporations' shareholders.  The shareholders in turn can choose not only a corporation's management in the financial sense, but also in the editorial sense.  When the shareholders of the NY Times choose a CEO to serve as Publisher and Editor in Chief, that is exactly what they are doing.  The same case applies to every other media corporation: the shareholders are exercising de-facto (though indirect) editorial control.  

                    The difference between a media corporation and something else such as United Technologies, is that the media corporation's product is media.  If the shareholders of UT wanted to be in the media business, they could invest accordingly; and to the extent that they do not, then clearly they do not wish to be in the media business.

                    We will still have to contend with the issue of who controls the media corporations.  And one way to deal with that might be a form of regulation that splits "preferred stock" (first in line for dividends, but has no vote for Board positions) from "common stock" (has a vote but is second in line for profit) and allows each natural person to hold only one share of the common stock: thus a system of "one person / one vote" replaces "one dollar / one vote."  This would enable enormous numbers of ordinary people to acquire stock in their choice of media corporations, and exercise a vote that affects their editorial positions.  

                    Whether or not any of this ever happens remains to be seen.

                    But further increase in the power of plutocracy might eventually become so onerous as to trigger a revolution, and after that, it's anybody's guess.  

                    "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                    by G2geek on Sun Jan 01, 2012 at 11:52:19 PM PST

                    [ Parent ]

                    •  You don't know much law, right? (0+ / 0-)
                      Insert the word "natural" before "persons" in the 14th amendment, and it's done.  The rest evolves by case law.

                      Um... not really.

                      It means that corporations have no rights under state law except those guaranteed by state constitutions.

                      So, for example, a state can take the property of a corporation without due process and there would be no recourse.

                      You also still have not explained why GE should be allowed to use its ownership of NBC to advocate for policies / politicians it supports but UT should not be able to counter just because it does not own a media company.

                      BTW, how do you define a media company?  Can any company just rent some presses in the six months leading up to election day?

                      •  Your opinion, only (1+ / 0-)
                        Recommended by:
                        G2geek

                        as is G2geek's; and, as the cards lay, he has the better hand.

                        And as for the implicit ad hom in your comment subject line:. it adds nothing to the merits of your argument.

                        Nothing.

                        "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

                        by ozsea1 on Mon Jan 02, 2012 at 12:37:04 AM PST

                        [ Parent ]

                        •  Except my opinion is based on what the 14th (0+ / 0-)

                          Amendment actually does.

                          If you add "natural" there so the 14th Amendment only applies to rights of natural persons then obviously it does not apply to corporations so corporations would not be able to assert their rights against states in federal court.

                          Is this even remotely non-obvious?

                          •  You just blew off what G2 offered (1+ / 0-)
                            Recommended by:
                            G2geek

                            to address your concerns.

                            So to answer your question, yes, it is remotely obvious that it's your non-persuasive opinion only, and no, that doesn't make it a fact.

                            "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

                            by ozsea1 on Mon Jan 02, 2012 at 01:07:01 AM PST

                            [ Parent ]

                          •  G2 offered nothing to address my concerns (0+ / 0-)

                            that amending the 14th Amendment as he suggests would not do what he thinks.

                          •  here, have a byte or three: (2+ / 0-)
                            Recommended by:
                            BMarshall, ozsea1

                            Any arbitrary confiscation of corporate property will immediately produce a strong enough market reaction to put a stop to it.  And I did say "evolving case law."  

                            Further, corporation law, that enables the creation of corporations in the first place, can be amended to include rights of due process.  

                            Beyond that, confiscation of corporate property without due process is confiscation of the collective property of the shareholders, so they have "natural person" stakes in this.

                            As for non-media corporations, and the rest of that: how'bout you go back and read what I actually wrote?

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:52:33 AM PST

                            [ Parent ]

                          •  So it seems you agree on the (0+ / 0-)

                            point that states would be able to confiscate corporate assets.

                            Beyond that, confiscation of corporate property without due process is confiscation of the collective property of the shareholders, so they have "natural person" stakes in this.

                            Nonsense.

                            Try to go to court to sue as a shareholder of a company if you think the government has illegally taken corporate assets.  You have no standing - only the company does.

                            As for non-media corporations, and the rest of that: how'bout you go back and read what I actually wrote?

                            I did.  It was silly.

                            Owners of GE have chosen to invest in a media company.  So?  Connection to why GE has speech rights but UT does not?

                            Or if UT responds by buying political ads then haven't the investors in UT chosen to invest in a company that speaks on political topics during elections?

                            No difference.

                          •  if the company has standing, there is no issue. (1+ / 0-)
                            Recommended by:
                            ozsea1

                            If under your fictional scenario, the company has no legal standing, then the legal standing reverts back to the shareholders and their lawful representatives in the form of the Board of Directors.

                            As for speech rights, NuCor produces steel and Lehigh produces portland cement.  If you want to invest in a steel company, buy NuCor shares but don't complain that they aren't producing cement.  

                            Methinks thou does protest too much.  Ever hear the phrase "the paralysis of analysis"...?

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 04:39:02 AM PST

                            [ Parent ]

                          •  How do you get that? (0+ / 0-)
                            If under your fictional scenario, the company has no legal standing, then the legal standing reverts back to the shareholders and their lawful representatives in the form of the Board of Directors.

                            How does that happen?  I mean I agree it would be nice... but how exactly is it supposed to happen under the law?

                            As for speech rights, NuCor produces steel and Lehigh produces portland cement.  If you want to invest in a steel company, buy NuCor shares but don't complain that they aren't producing cement.  

                            Say I wan to invest in a steel company that also buys political ads?

                          •  like this: (1+ / 0-)
                            Recommended by:
                            ozsea1

                            Property is owned by a legal entity of one kind or another.

                            Under my scheme, corporations retain the rights to:

                            Exist,
                            buy, own, and sell property,
                            sue & be sued in their own name,
                            and due process of law.

                            However if government wants to assert a right to confiscate corporate property without due process, they are infringing the rights of the shareholders to due process before being deprived of their property interest in the shares of the company, which are valued in part according to the assets of the company.  So in effect that becomes a taking from the shareholders without due process.

                            The right of due process inheres in the existence of a legal entity, whether the corporation or any of its shareholders.  (The shareholders are natural persons but every natural person is also a legal entity in that s/he has inherent legal rights and obligations.)  Denial of due process to the corporation is effectively denial of due process to its shareholders.  

                            Sheesh, how many different ways to I have to explain this one?

                            Re. "Say I want to invest in a steel company that also buys political ads?"

                            Say I want to invest in an American company that produces rotary dial telephones!  What then, eh?  Cortelco is the last American manufacturer of telephones and they stopped producing rotary dial phones in 2006; this I know because I have two from the very last batch (I'm a PBX engineer).

                            Or, say I want to invest in a company that produces antigravity devices, what then?  

                            To quote a 1960s song, "You can't always get what you want."  

                            One more thing: I would also do away with the ability to form a corporation "to pursue any legal purpose," and bring back the requirement for specificity in corporate charters, limiting them to specific and related fields of commerce.  For example, "to produce steel," or "to produce aircraft," or "to produce and broadcast television programs."  This will immediately do away with conglomerates that have unrelated far-flung interests all of which are incapable of being managed by someone with expertise in any subset of them, and thereby end up being managed by generic management types who know nothing about everything.

                            Limited liability is a privilege, not a right.  It can be subject to limitations.  If you'd rather have pure laissez-faire, go visit Somalia and write a diary if you can get back here in one piece.

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 06:39:43 AM PST

                            [ Parent ]

                          •  I understand your scheme (0+ / 0-)

                            But how do you think that changing one word in the 14th Amendment would somehow magically make it happen?

                            Re. "Say I want to invest in a steel company that also buys political ads?"

                            Say I want to invest in an American company that produces rotary dial telephones!  What then, eh?  Cortelco is the last American manufacturer of telephones and they stopped producing rotary dial phones in 2006; this I know because I have two from the very last batch (I'm a PBX engineer).

                            But you still have not explained why it's OK to have a company that owns NBC but not a company that does a newspaper or buys television time from independent stations just during elections.

                          •  originally, corporate charters spelled out... (0+ / 0-)

                            .... the field of business that the corporation planned to enter.

                            For example "a corporation to build and operate a railroad between X and Y..." or  ".... to produce steel..." or whatever.

                            Limited liability protection was considered extraordinary and was conferred for a specific purpose that required the accumulation of a large amount of capital, beyond the scope of what could be obtained in other forms of business ventures.

                            That has since morphed disastrously into the idea that a corporate charter can be "for any legal purpose" and have indefinite existence in any number of unrelated fields.  That's one of the root sources of the present plutocracy, and it has to G-O.  

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 07:23:47 PM PST

                            [ Parent ]

                          •  So you mean no conglomerates? (0+ / 0-)

                            GE has to split up?

                            But how do we define the lines?

                            Can NBC own Internet properties?  Cable?  Television production?  Television stations? Magazines?  Radio stations?  Ad sales?

                            Or is it just responsible for programming and has to outsource everything else?

                          •  thanks; and see my further reply below:-) n/t (1+ / 0-)
                            Recommended by:
                            ozsea1

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:53:02 AM PST

                            [ Parent ]

                          •  or rather, above: "here, have a byte or three." nt (1+ / 0-)
                            Recommended by:
                            ozsea1

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:54:04 AM PST

                            [ Parent ]

                      •  ad-hom: you lose. (0+ / 0-)

                        I won't even dignify your rhetorical question with a response.

                        "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                        by G2geek on Mon Jan 02, 2012 at 02:55:22 AM PST

                        [ Parent ]

              •  I think you are confusing corporations and (0+ / 0-)

                the shareholders of corporations.  The shareholders  ulitmately are "natural people" (humans).  Corporations are inanimate constructs of law, not "natural people."

                The issue of taking corporate property is a taking from the shareholders (natural people), which is covered by the Constitution (5th Amendment)

                To quote:

                No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

                I have bolded the word "person."

                It is a principle of legal construction of the meaning of a word in a document is that the same word means the same thing whem used repeatedly.  Here "Person" can ONLY mean "natural person"  because a corporation can't serve in the militia, and can't be "put in jeopardy of life or limb," and can't be deprived of "life, liberty."

                So I have a BIG problem with some of our ORIGINALIST Justices of the Supreme Court holding that because corporations as "persons" for puposes of contract law, they ALSO become "persons" (as in "natural persons") as regards the 5th Amendment, or the 1st Amendment.

                And the First Amendment says:

                Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                When is the last time you saw a corporation in church?

                Again, "the right of the people peaceably to assemble" deals with HUMANS, not with disembodied COPORATIONS.  How do you "assemble" a bunch of corporations (not the owners of the corporations, and not the representatives of the corporations, the corporations themselves)?  Do you pile up their certificates of incorporation on a table?

                CU is a politically motivated opinion that runs counter even to the stated positions of several Justices who voted in the majority.  

                "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

                by BornDuringWWII on Mon Jan 02, 2012 at 04:05:03 AM PST

                [ Parent ]

          •  This is so interesting (0+ / 0-)

            The rationale for CI moves to a more ethereal level of abstraction than I had realized. It's not the conceptual entity "corporation" that has rights, it's the abstract concept "speech" that has rights. The Constitution is refigured to protect ideal abstractions, rather than people, regardless of the preamble.

            What would Chris Hedges do?

            by Red Bean on Sun Jan 01, 2012 at 12:05:11 PM PST

            [ Parent ]

            •  Not exactly. (1+ / 0-)
              Recommended by:
              VClib

              It's a limit on the power of Congress --  the First Amendment begins,  "Congress shall make no law . . . "  

              It's the same for the freedom of the press.  It's not "people" who have the right of freedom of the press.  Newspapers are not "people."  They ACT through people (just as corporations ACT through people).  But the New York Times is not a person -- it is, in fact, a corporation.  And Congress cannot enact laws restricting what the New York Times says in its papers.  

              If the First Amendment were only restricted to "people," then Congress could restrict what the New York Times prints.   What the SCOTUS held is that  the First Amendment is a restriction on the power of Congress, regardless of whether the book, or newspaper, or magazine, or movie is paid for by a person or a group of people who organize themselves as a club, a partnership, a union, or a corporation  

              •  I understand the logic of (3+ / 0-)
                Recommended by:
                Iron Spider, ozsea1, BMarshall

                the argument based on a literal interpretation of the language. The consequence of this literalist view is that if Congress cannot makes laws restricting speech then it is an ideal conception of the abstraction "speech" that is protected rather than the rights of people.

                What value ought to be protected? A pure notion of speech, which coincidentally happens to benefit the oligarchs? Or a functional, evidence-based application of rights, that limits the ability of the wealthy to manipulate opinion in elections through electronic media, an issue beyond the imagining of the founders when they wrote the phrase the Court decides to interpret in so fundamentalist a fashion.

                The Constitution isn't the writ of a Holy Being requiring an unchangeable devotion to phrases that may in fact owe their origins to literary considerations to begin with.

                What would Chris Hedges do?

                by Red Bean on Sun Jan 01, 2012 at 02:31:28 PM PST

                [ Parent ]

              •  Some speech CAN be limited even under (0+ / 0-)

                the First Amendment.

                The unabridged speech that the First Amendment is talking about is "POLITICAL SPEECH" as in "King George is an IDIOT" which might have gotten you punished before 1776.

                Certain other kinds of speech CAN be regulated (and abridged), including hate speech, slander and libel, and commercial speech (advertising).

                The classic example of limited right to speak is that you can be punished for screaming "Fire" in a crowded theater if there is no fire because of the damage that you cause.

                Although the First Amendment does not allow CENSORSHIP IN ADVANCE ("Congress shall make no law ... abriging ... freedom of the press"), there are laws that limit what you can publish without penalty, but they are only enforced AFTER you publish, and not before you publish.

                "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

                by BornDuringWWII on Mon Jan 02, 2012 at 04:20:25 AM PST

                [ Parent ]

        •  but (2+ / 0-)
          Recommended by:
          Seamus D, jimreyn

          but networks routinely block what can be aired and what cant in way of ads.  So I never understood that the networks are above the constitution, yet the right to free and fair elections are not.

          Money isnt speech, because money by itself does not grant speech, it just allows a POSSIBILITY of purchasing of distribution channel for a specific amount of time, and ONLY if the monetary arrangement and content is deemed suitable by a particular owner of a distribution channel.

          The scotus is so full or warped logic and bullshit on that Citizens united ruling, its not even funny.

          Bad is never good until worse happens

          by dark daze on Sat Dec 31, 2011 at 01:56:05 PM PST

          [ Parent ]

          •  The difference is that networks (8+ / 0-)

            are not the government.  The First Amendment is a restriction on GOVERNMENT.  Private entities are not bound by the First Amendment.  An employer, for example, does not have to allow "free speech" at the workplace.

            That's kind of an oversimplification, but it's important to remember that free speech is not really a "right" that you have in all circumstances.  Instead, the First Amendment is a restriction on what the government can do.  

            •  More precisely, restrictions on what the (1+ / 0-)
              Recommended by:
              ozsea1

              Government cannot do.

              Cannot restrict (free political) speech.

              Cannot impose cruel or unusual punishment.

              It's why the Bill of Rights has so many "cannot"s in it.

              * * *
              I like paying taxes...with them, I buy Civilization
              * * *
              "A great democracy must be progressive or it will soon cease to be a great democracy."
              THEODORE ROOSEVELT

              by Angie in WA State on Sat Dec 31, 2011 at 11:54:46 PM PST

              [ Parent ]

            •  this is right out of Civics 101 (0+ / 0-)

              and although it is an oversimplification, as you stated; I must agree.

              However, as long as the two overarching perceptions persist that:

              1) SCOTUS leans 5-4 Republican preference

              2) SCOTUS overreached in CU, i.e." judicial activism"

              then the debates will continue.

              We may not always agree, but please do keep us advised.

              "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

              by ozsea1 on Mon Jan 02, 2012 at 12:51:33 AM PST

              [ Parent ]

            •  and why arent (0+ / 0-)

              private companies bound to allow for freedom of speech?  simple, because the government says so. So I hardly see this as a separate issue.

              Private business cant break certain constitutional rights, but it can infringe on others?  bullshit.

              Also networks are regulated by the government, they operate on public airwaves. Why cant the networks show porn then?  

              Bad is never good until worse happens

              by dark daze on Tue Jan 03, 2012 at 10:24:08 AM PST

              [ Parent ]

        •  The issue is limitation on government power (8+ / 0-)

          Free speech IS a right, just like the right to bear arms.  

          People have a "right" to say what they want, and the Constitution prohibits the government from illegitimate limits on that ability (stipulating to exceptions like yelling "fire" in a crowded theater or publishing troop movements during times of war).

          People have a "right" to bear arms, and the Constitution prohibits the government from illegitimate limits on the ability to "bear arms as part of a well regulated militia" (stipulating to exceptions like owning nuclear arms or cruise missiles, or convicted felons owning guns).

          People have a right to be secure in their homes, and the Constitution prohibits the government from illegitimate limits on that security -- some (like me) would say "privacy" (stipulating to exceptions like a warrant finding probable cause that a crime has been committed, or exigent circumstances, such as the belief that a crime is currently underway).

          These rights are known as "negative rights," and have to do with enumerating things the government CAN'T do to limit the rights of the people.  The Bill of Rights is entirely made up of "negative rights."

          These civil liberties can be contrasted with "positive rights," which are affirmative claims individuals have on the government or each others that requires specific actions (as opposed to negative rights that generally only require government inaction).  These rights include things like a right to education, a right to medical care, a right to a job, a right to not starve, etc.  These positive rights require actions on the part of others in order for your rights to be fulfilled, and are predictably much more controversial than negative rights.  In fact, Republicans and those on the right side of the political spectrum often argue that affirmative rights don't exist at all (unless, of course, you happen to be a corporation).  :-)

          Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

          by The Knute on Sat Dec 31, 2011 at 02:22:57 PM PST

          [ Parent ]

          •  but (0+ / 0-)

            whose rights were incorporated under the 14th amendment?  If the 1st is only a limitation on congress, and not a fundamental right, then it doesn't qualify to be incorporated and applicable against the states.

            If you don't watch out, your job will become one Americans won't do.

            by happymisanthropy on Sat Dec 31, 2011 at 06:40:01 PM PST

            [ Parent ]

            •  The 14th amendment is a unique case (2+ / 0-)
              Recommended by:
              Lujane, madcitysailor

              The Civil War amendments (including the 14th) made it explicit that all rights under the Constitution were applicable to all people, regardless of race.

              In addition, the 14th amendment explicitly made the constitutional limitations on federal power enumerated in the Bill of Rights applicable to the states as well (particularly equal protection and due process under the law).  

              Most (if not all) state constitutions have freedom of speech guarantees that mirror the 1st amendment, but I think most people prior to the Civil War and the 14th amendment would have agreed that the U.S. Constitution did not limit the ability of the states to limit free speech -- it would have been up to the specific wording of a state's constitution to do that.

              Afterward, most took the view that both the U.S. Constitution (through the 14th amendment) and the state constitutions provided those protections.

              Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

              by The Knute on Sat Dec 31, 2011 at 07:08:26 PM PST

              [ Parent ]

              •  asdf (0+ / 0-)
                1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

                The other four articles don't seem relevant, so I wonder where you're finding explicit protections for someone other than "persons," "citizens," "person," or "person."

                In addition, the 14th amendment explicitly made the constitutional limitations on federal power enumerated in the Bill of Rights applicable to the states as well (particularly equal protection and due process under the law).  

                If that's true, why do we have "selective incorporation" instead of "comprehensive incorporation?"

                If you don't watch out, your job will become one Americans won't do.

                by happymisanthropy on Sat Dec 31, 2011 at 07:31:21 PM PST

                [ Parent ]

                •  I'm not sure of the point you're trying to make (0+ / 0-)

                  1.  I'm not finding protections for someone other than "persons" or "citizens."  Only people should have constitutional rights.

                  2.  Selective incorporation has to do with the standards, or "tests," that are applied in determining the applicability of the 14th amendment to specific state or local actions.  Comprehensive incorporation would have made the 10th amendment and state constitutions largely irrelevant, so different tests were created (rational basis, heightened scrutiny, and strict scrutiny) to determine whether the 14th amendment could be employed to trump state action.  In the vast majority of cases federal intervention was/is unnecessary, and these tests allow for some subtlety in making that determination.

                  Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

                  by The Knute on Sat Dec 31, 2011 at 08:17:28 PM PST

                  [ Parent ]

                  •  No, the supreme court (0+ / 0-)

                    has never held that the entire bill of rights applies to the states.  For example, the second amendment was not until McDonald a couple years ago.

                    I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

                    by happymisanthropy on Sat Dec 31, 2011 at 09:46:22 PM PST

                    [ Parent ]

                    •  But That's What I'm Saying -- I Think (0+ / 0-)

                      The Court has only made that move (incorporating federal constitutional requirements on the states through the 14th amendment) in limited situations, with a very high burden of proof on the federal government (actually, it's a low standard of proof required by the states to avoid incorporation).

                      Unless it's a matter that involves racial discrimination, because of the unique history there, and the specific purpose for which the 14th amendment was adopted. Then, the state must pass "strict scrutiny" to avoid incorporation.  This is the "compelling state interest without narrower available remedies" test.

                      If the state is addressing an issue for which the federal government has defined a right as fundamental, or has constructed specific statutory protections (as in gender, age, or handicapped discrimination), then the Court applies the "heightened scrutiny" test.  This is the "legitimate state interest without narrower available remedies" test.

                      Absent that, states must only demonstrate a "rational basis" for limitations in citizens' non-incorporated federal rights in order to pass constitutional muster.

                      This is an easy standard to meet in some circumstances, but more difficult in others.  For example, the 8th amendment prohibitions against cruel and unusual punishment have basically been applied to the states through the 8th and 14th amendments, because there's not much of a rational basis for punishing convicts in cruel or unusual ways.

                      Every once in a while, the Court decides that an issue has risen to the level where incorporation is required to curtail unjustified state abridgment of citizens' fundamental or statutorily defined rights.

                      The Griswold/Roe privacy line of cases ultimately used the 14th amendment (among other things) to bootstrap a penumbral fundamental federal "right to privacy" that curtailed states' ability to outlaw both contraception AND abortion.

                      Title IX resulted in statutory protections for women in sports programs that requires the application of the "heightened scrutiny" standard to justify states treating men and women differently in the funding of school athletics programs.  This basically represented the incorporation of the equal protection clause of the 14th amendment on states regarding decisions on funding of school sports programs. The states inability to meet that standard (justifying differential funding) resulted in a number of successful lawsuits that transformed HS and college sports opportunities for women.

                      Several years ago the Court ruled in a Texas case that there was no "rational basis" justifying criminal penalties for "sodomy," so state sodomy laws were stricken down nationwide.

                      Same thing with the recent establishment of the 2nd amendment as a fundamental right, which triggered the heightened scrutiny test and resulted in limiting the ability of states and localities to implement strict gun control laws.

                      I really think we're saying pretty much the same thing here.  The 14th amendment creates numerous conflicts with 10th and 9th amendment rights, and as a consequence the Court, rather than effectively wipe out the 10th amendment, has  been pretty selective in those rights for which it's identified a need to incorporate and thus limit state action through the 14th amendment.

                      Still, it depends on the circumstances and the ability of the states, when challenged, to justify their rationale for imposing limits on the rights of their citizens.

                      Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

                      by The Knute on Sat Dec 31, 2011 at 10:34:13 PM PST

                      [ Parent ]

        •  however the case can be made that... (3+ / 0-)
          Recommended by:
          jimreyn, IreGyre, Iron Spider

          .... speech doesn't create itself: it comes from someone who is speaking.  This is empirically and logically obviously true.  (Or find me an example of speech creating itself from the void, through some kind of "spontaneous generation," and I'll admit my error in reasoning!)

          Given the entirety of the rest of the Constitution, it's clear that these rights are reserved to "the people," which is plural of "the person," and opens the door to the issue of defining who or what is or is not a "person."  

          "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Sat Dec 31, 2011 at 08:45:37 PM PST

          [ Parent ]

      •  Thank you for this beautifully lucid explanation (12+ / 0-)

        of the difference between people and corporations in the context of your Constitution.  Srsly.  No snark.  Many people, like me, can have a gut feeling that something is wrong but lack the ability to explain why clearly.  

        We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

        by Observerinvancouver on Sat Dec 31, 2011 at 12:21:28 PM PST

        [ Parent ]

      •  great analysis! (0+ / 0-)

        Thanks!  (care to develop this into a diary?)

      •  Compelling government interest.... (0+ / 0-)

        ...if there is any compelling government interest, it is maintaining the integrity of government and allowing contributions or expenditures up to a certain reasonably restricted amount.

        Restricting amounts of corporate contributions (whether direct or independent) to the amount of an individual, and banning sock puppet corporations, is the least-restrictive alternative to banning all corporate contributions.

        9-11 changed everything? Well, Katrina changed it back.

        by varro on Sat Dec 31, 2011 at 03:31:39 PM PST

        [ Parent ]

        •  varro - corps cannot contribute to campaigns (0+ / 0-)

          Corporations cannot contribute to the campaign of any candidates for federal office. The Tillman Act (1907) prohibited corporations from making campaign contributions and is still in full force and effect. The Tillman Act was not an issue in Citizens Untied and the CU decision did not effect the Tillman restriction. Contributions by corporations to candidates campaign funds are NOT allowed.

          "let's talk about that"

          by VClib on Sat Dec 31, 2011 at 05:43:23 PM PST

          [ Parent ]

          •  As we keep splitting hairs (0+ / 0-)

            The ship of state sinks...

            Sounds like a discussion by sovereign citizens.

            Essentially what is required is to circumscribe the influence of the Golden Rule, AKA He who has the Gold makes the Rules.

            •  j7915 - in any event we should get the facts right (0+ / 0-)

              There are important policy issues to discuss regarding campaign finance, but we should have that discussion based on accurate facts. For some reason as it relates to Citizens United nearly all the diaries, and many of the comments, (with some notable exceptions like Adam B) have serious errors of fact regarding the actual decision and what specific impact CU has on campaign finance restrictions.

              "let's talk about that"

              by VClib on Sun Jan 01, 2012 at 02:15:28 PM PST

              [ Parent ]

          •  The Tillman Act (1907) (0+ / 0-)

            in the real world is honored in the breach than reality.

            From Shakespeare's Hamlet, 1602:

            HAMLET:    Ay, marry, is't:
            But to my mind, though I am native here
            And to the manner born, it is a custom
            More honour'd in the breach than the observance

            "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

            by ozsea1 on Mon Jan 02, 2012 at 12:57:59 AM PST

            [ Parent ]

      •  Equating corporations to individual humans (2+ / 0-)
        Recommended by:
        The Knute, IreGyre

        ...is contrary to "E Pluribus Unum."

        It is an imposter.

        It will be exposed.

        "Corruptio Optimi Pessima" (Corruption of the best is the worst)

        by zenox on Sat Dec 31, 2011 at 06:09:38 PM PST

        [ Parent ]

        •  "E Pluribus Unum" means "From many, one" (0+ / 0-)

          It's about bringing the many states together to form one country.

          I have no idea what you think it has to do with corporations vs. people.

          •  Er...a lot. (0+ / 0-)

            To understand my meaning you must first see the symbolic and the symmetrical essence of our "reality." From many, one, also means from one, many. In other words, all for one, one for all. If it was not symmetrical, let say, if it was only from many, one, then "many states together form one country"would be the end of it. But there is that other half: from one country, many states. Sounds a bit topsy turvy I know but you can comprehend it with the effort. Think in 360 degrees, not 180.

            The nation then is not made out of groups (corporations) but from individual citizens (each unique and equal to the whole of the nation).

            "Citizens united" is an imposter.

            "Corruptio Optimi Pessima" (Corruption of the best is the worst)

            by zenox on Mon Jan 02, 2012 at 06:19:31 AM PST

            [ Parent ]

            •  But the phrase isn't From One Many (0+ / 0-)

              It is From Many One.

              Therefore your basic premise is incorrect.

              •  The difference between my point of view (0+ / 0-)

                ...and yours dear friend is simply that you see a "half moon" as a half planet, rejecting the existence of the dark side (the other half), 'cause you cannot see it. The moon of course is always a full sphere, whether we can see it as a whole or not.

                So, "From many, one" has its other half: "From one, many."

                It is up to you to "see" the full phrase, of course.

                To understand "E Pluribus Unum" thus takes "whole" vision, not half.

                -Citizens United is an imposter.

                Best

                "Corruptio Optimi Pessima" (Corruption of the best is the worst)

                by zenox on Mon Jan 02, 2012 at 12:22:27 PM PST

                [ Parent ]

      •  Brilliant synopsis: turn that into a diary. (0+ / 0-)

        That's the best rendering of the arguement I've run across on dKos since forever-ago.   Needs to become a diary.  

        "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

        by G2geek on Sat Dec 31, 2011 at 08:38:10 PM PST

        [ Parent ]

        •  Agreed (1+ / 0-)
          Recommended by:
          G2geek

          and had I read this diary yesterday, I would've added my tip to the 84 others.

          "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

          by ozsea1 on Mon Jan 02, 2012 at 01:01:44 AM PST

          [ Parent ]

    •  While I am happy with the result (1+ / 0-)
      Recommended by:
      tbirchard

      (and I've only read of it what appears above) I tend to think that it will be overturned on appeal on Dormant Commerce Clause grounds, because it would prevent corporations from engaging in national advertising campaigns that would enter into Montana and would thus unduly burden free speech.  So the question is: what if all states did it?  Then it would probably have to be all right, right?  So where is the dividing line between one state and 50?

      Regardless, I like this being in play -- and if they want to reverse their earlier stupidity, now they have a good vehicle.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

      by Seneca Doane on Sat Dec 31, 2011 at 06:39:33 PM PST

      [ Parent ]

      •  This decision only concerns (2+ / 0-)
        Recommended by:
        VClib, coffeetalk

        Independent expenditures on Montana state races.

        No way the decision stands.  Could be 9-0 summary reversal.

        •  What's your expected basis for the reversal (0+ / 0-)

          other than a citation to Citizens United (which I realize might be all there is)?

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

          by Seneca Doane on Sat Dec 31, 2011 at 07:43:17 PM PST

          [ Parent ]

            •  Yes -- but not all that's appropriate (0+ / 0-)

              This is action under Montana's own constitution, dealing with intrastate issues.  Even if they're saying "you can't take away rights in state constitution that are granted in the federal constitution," it would be wise to explain that as opposed to leaving over the possibility that they are, for example, doing a Dormant Commerce Clause analysis rather than telling the states that their decision engulfs the field.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

              by Seneca Doane on Sat Dec 31, 2011 at 09:23:41 PM PST

              [ Parent ]

              •  huh? (1+ / 0-)
                Recommended by:
                VClib

                Decision, p7:

                The District  Court specifically did not address whether § 13-35-227, MCA, violated the Montana Constitution, and further noted that the decision had “no effect on direct corporate contributions to candidates or to any existing or future disclosure laws that might be enacted.”  Those aspects of Montana law are therefore not at issue in this case.  
                •  Oh -- so the same case comes up again (1+ / 0-)
                  Recommended by:
                  Adam B

                  under the state Constitution.  OK, then!  Laissez le bon temps roullez!

                  Kudos for having read the decision, Adam, when I simply relied on the summary in the diary.  I'm so glad that I didn't offer this as formal legal advice.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                  by Seneca Doane on Sun Jan 01, 2012 at 11:49:04 AM PST

                  [ Parent ]

                  •  State const'n can't provide less speech rights... (2+ / 0-)
                    Recommended by:
                    VClib, Wham Bam

                    ... than federal.

                    •  One might think so ... (0+ / 0-)

                      or one might think that this may provide a good opportunity for the Citizen's United majority to review and reconsider and revise what it has wrought.  I think that your thinking on how settled this issue is is, from your perspective, wishful.

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                      by Seneca Doane on Sun Jan 01, 2012 at 01:27:54 PM PST

                      [ Parent ]

                      •  via Rick Hasen (3+ / 0-)
                        Recommended by:
                        Seneca Doane, VClib, SoCalSal

                        ElectionlawBlog:

                        How did the Montana Supreme Court try to get around the holding of Citizens United?  It took SCOTUS’s statement that independent spending cannot corrupt and pointed to evidence that such spending has in fact corrupted in Montana.

                        ... [T]he statement in CU that independent spending cannot corrupt is a fiction.  As I explained in this Michigan Law Review piece on the case, the statement both defies common sense and is in direct tension with the Court’s holding in Caperton v. Massey.  As I argue in this piece, if the Court were being honest in Citizens United, it would have said something like:  We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.

                        But the Court didn’t say that, because it would have faced even greater criticism than it already has.  So it dressed up its value judgment (no corruption “implied in law”) as a factual statement.

                        The Montana Supreme Court called SCOTUS on this.  And when SCOTUS reverses, the disingenousness of this aspect of CU will be on full display for all.

                      •  SD - it isn't settled forever (1+ / 0-)
                        Recommended by:
                        Adam B

                        but it's settled for now. Your idea that in reviewing the Montana decision the majority will reverse themselves on CU is wishful thinking. Somewhere in this thread people are speculating that the reversal will be 9-0, which I think is much more likely than any short term change in CU.

                        "let's talk about that"

                        by VClib on Sun Jan 01, 2012 at 06:30:54 PM PST

                        [ Parent ]

                      •  Unlikely. The Supreme Court does not take kindly (1+ / 0-)
                        Recommended by:
                        coffeetalk

                        to blatant attempts by state courts to ignore its rulings.

                        •  That really depends whether there is a basis (0+ / 0-)

                          for distinguishing the earlier ruling, doesn't it?  And that small selection from Rick Hasen that Adam presents above suggests one way that there might well be.

                          Democrats must
                          Earn the trust
                          Of the 99% --
                          That's our intent!

                          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                          by Seneca Doane on Sun Jan 01, 2012 at 10:56:49 PM PST

                          [ Parent ]

      •  We already have separate fed/state election laws (1+ / 0-)
        Recommended by:
        Seneca Doane

        The Montana decision doesn't affect the applicability of Citizens United to presidential elections conducted in Montana.  The federal rules still apply.

        The Montana decision does affect local and state elections in Montana.  Since there is no interstate component to Montana intrastate elections, the Commerce Clause shouldn't be applicable.

        Not saying the current SCOTUS won't say whatever they have to to strike down the Montana decision -- but the Commerce Clause shouldn't apply to entirely local/state elections in Montana.

        Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

        by The Knute on Sat Dec 31, 2011 at 07:16:11 PM PST

        [ Parent ]

        •  Depends if they're interstate, doesn't it? (0+ / 0-)

          Can Montana regulate spending on its local elections by groups outside the state that takes place in, say, Lovell, Wyoming and is directed towards Billings?  What about powerful AM radio ads emanating from Calgary, Alberta aimed at northwestern Montana?  Doesn't this transcend state regulatory power?

          Adam B and I disagree on the merits of regulating this form of speech, but we agree that doing it constitutionally would be damn hard.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

          by Seneca Doane on Sat Dec 31, 2011 at 07:42:18 PM PST

          [ Parent ]

          •  I Think They Make This Distinction Now (1+ / 0-)
            Recommended by:
            Seneca Doane

            Political consultants have to comply with different rules governing state and local elections all the time now.  Large consulting firms sometimes have campaigns going in 10-15 states, all with different financing, expenditure, and reporting rules.  Compliance is a big part of their job now.  For example, media buys in MA for NH elections have to adapt to NH election rules, even though the buy is technically interstate commerce.

            And besides, this only has to do with election fundraising, rather than the commercial expenditure of funds across state lines.

            I wouldn't put anything past the current SCOTUS, but I can't see any basis for using the Commerce Clause here.

            More likely, I think, is that SCOTUS will try to say that the remedy (banning corporate contributions completely) is overly broad to achieve the state interest of minimizing corruption, not squeezing out the little guy, etc.  They could argue that corporation contribution limits, disclosure rules, etc., are more narrowly tailored remedies that could achieve the same ends, without unnecessarily limiting "corporations 1st amendment rights."

            Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

            by The Knute on Sat Dec 31, 2011 at 09:24:14 PM PST

            [ Parent ]

      •  Not dormant commerce. 1st Amendment. (0+ / 0-)

        This decision blatantly contradicts CU.  The Supreme Court will slap it down - not even a close call.

    •  I'm from Montana (0+ / 0-)

      and I haven't really heard anything about this story in the local presses, but I'd really appreciate it if Obama's federal Government agents stop raiding our locally approved marijuana outlets.

      Montana voters approved medical marijuana and i think that vote should be respected.

      He kind of promised to stop doing that...

      -9.50/-7.59 - "Why are the missiles called peace-keepers when they're aimed to kill?" -Tracy Chapman

      by Situational Lefty on Sun Jan 01, 2012 at 01:11:47 AM PST

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site