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

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  •  Volokh agrees: (12+ / 0-)
    My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

    For people who don't want to read the whole decision, the key points are excerpted there, and worth reading.

    But a state can't just assert an exemption from federal constitutional law based on perceived unique circumstances (which is a good thing, because we'd have half the south trying to get out of civil rights laws, among other things.)  From what I've seen of the decision, they haven't distinguished it in a way that really gets out of the fundamental precept of Citizens United, that indirect political speech isn't easy to regulate.

    It's possible they could split some hairs over the issue of independent expenditures toward ballot initiatives, but even that's a bit of a tough argument after C.U.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Sat Dec 31, 2011 at 11:22:55 AM PST

    [ Parent ]

    •  It brings up a lot of (6+ / 0-)
      But a state can't just assert an exemption from federal constitutional law based on perceived unique circumstances (which is a good thing, because we'd have half the south trying to get out of civil rights laws, among other things.)

      uncomfortable thoughts. Right now, in the Prop. 8 case, a state is saying that it can change its constitution's equal protection guarantee to prevent part of the population from marrying. A lot of the argument is that California is already one of the most liberal states and already allows gay people to have every right associated with marriage, and that exception should make it less likely that it's in violation of the US Constitution.

      So, yeah. I do feel awkward.

      Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

      by indiemcemopants on Sat Dec 31, 2011 at 11:27:57 AM PST

      [ Parent ]

      •  The Prop 8 decision was different of course (1+ / 0-)
        Recommended by:
        VClib

        There, the voters followed the state constitution to rewrite our constitution to prevent same-sex marriage.

        That's not a big problem logically. If a super-majority of the Congress and a super-majority of the states want to, we could get rid of the First Amendment.

        Or, for that matter, habeas corpus. Perhaps one day a SCOTUS will remind the other branches that they should stop relying on the judiciary to ignore the constitution, since there is a legal way to amend it.

        •  But it wasn't a rewriting (0+ / 0-)

          it was an amendment (the state supreme court ruled on it and said it's an amendment not a revision.) And the issue is whether a state supreme court (or a state law) can provide less protections under the federal Constitution's Equal Protection Clause, and/or whether they can take rights away simply because of animus toward a minority group.

          The defendant-intervenors argued (in part, obviously) that the state already provides all the rights of marriage, so that exception means there is no violation of the federal Constitution, and that there's not really animus since it's just "the word" marriage.

          Simply put the issue is whether the US Constitution's Equal Protection Clause means that gay people are allowed to marry. If it does then that means California's amendment is not valid.

          The analogy is of course not perfect - in this case it's a state Supreme Court, and in the Prop. 8 case it's a federal court (because the state supreme court already upheld Prop. 8 as a legal amendment to the state constitution, and not an illegally implemented revision.) And there are other issues. But I don't think the analogy is too far off.

          Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

          by indiemcemopants on Sat Dec 31, 2011 at 02:29:24 PM PST

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          •  No, that's not quite the issue w Prop 8 (4+ / 0-)

            It's whether taking away marriage equality, once granted, furthered a sufficiently compelling state interest.

            A court can overturn Prop 8 without finding a freestanding national right to marriage equality.

            •  I was thinking they (1+ / 0-)
              Recommended by:
              Seamus D

              were arguing both of those things. At one point they mentioned a freestanding right, and even said that they want strict scrutiny for laws affecting sexual orientation.

              But of course you're right that it's about taking a way an already-existing state constitutional right (since their state supreme court had ruled that same sex marriage is legal before Prop 8 was passed.) And actually your argument is the likelier one to sway the Justices if it actually makes it to the Supreme Court and gets decided on the merits anyway. But I guess one can wish they'd decide for a freestanding right.

              Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

              by indiemcemopants on Sat Dec 31, 2011 at 02:35:55 PM PST

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              •  here's the thing (2+ / 0-)
                Recommended by:
                indiemcemopants, eglantine

                I don't know that there are five votes for the freestanding right from the current Supremes, but I think there may be 6 for the narrower ruling (given Romer).  

                •  Do you think that (0+ / 0-)

                  it'll even be heard on the merits? The standing issue seems to be a very easy way for them to avoid the question (and after the upcoming health care decision and the one on the Texas maps and the Arizona law, I don't feel very good they'd be willing to take up yet another 'controversial' issue.)

                  Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

                  by indiemcemopants on Sat Dec 31, 2011 at 02:41:05 PM PST

                  [ Parent ]

                  •  No. (2+ / 0-)
                    Recommended by:
                    indiemcemopants, VClib

                    Given that the California Supremes said they have standing, given its unanimous interpretation of CA law, they've got standing.

                    •  They didn't decide Article III standing. (0+ / 0-)

                      In fact, they specifically left open the question of whether the defendant/intervenors have suffered the kind of "particularized" injury they'd need to satisfy Article III standing.  So I don't think the California Supreme Court's decision conclusively establishes their standing under the federal constitution.

                      Do you disagree?

                      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                      by FogCityJohn on Sat Dec 31, 2011 at 06:10:34 PM PST

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                      •  I disagree, as do the parties & the 9th Cir (2+ / 0-)
                        Recommended by:
                        VClib, FogCityJohn

                        From the original 9th Cir order seeking an answer to the certified question:

                        The parties agree that “Proponents’ standing” – and therefore our ability to decide this appeal – “‘rises or falls’ on whether California law” affords them the interest or authority described in the previous section. Proponents’ Reply Br. at 8 (quoting Plaintiffs’ Br. 30–31).  It is not sufficiently clear to us, however, whether California law does so.  In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law....

                        If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State.

    •  Even if the US Sct does overturn (4+ / 0-)
      Recommended by:
      indiemcemopants, pico, TofG, Seamus D

      it still weighs in the balance of legislation/Constitutional amendment/future court decisions.  

      I believe CU was a 5-4 decision, so is weak precedent for future Congresses, conventions and courts.

      Greed's self-regulation is collapse. So is delusion's.

      by Publius2008 on Sat Dec 31, 2011 at 11:33:03 AM PST

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      •  True enough. The biggest problem with (2+ / 0-)
        Recommended by:
        indiemcemopants, Seamus D

        C.U. is that it was so broadly decided that it gives no room for Congress or the states to keep trying to find a good balance between the desire to regulate indirect political speech and the First Amendment's protections: SCOTUS basically said it's so difficult to do that no one can do it, the end.  That's a heck of a hole to dig oneself back out of.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Sat Dec 31, 2011 at 11:39:06 AM PST

        [ Parent ]

      •  IIRC regarding (3+ / 0-)
        Recommended by:
        pico, eglantine, Seamus D

        Citizens United, they had pretty much signaled that they were going to rule that way from early on in the case because of the fact that they wanted to rehear oral arguments on an issue that only vaguely touched on the original case.

        And then when they finally had an oral argument, the SG said that the government under the campaign finance law could potentially ban a book. Seriously. (Then when Kagan became SG, and her first oral argument was for that case, she admitted that the government's position had changed on the book ban issue and that it would not be allowed.)

        Or in other words, it seems like the conservatives were just on a mission from the outset. I have no idea if their mission could be overturned when we have 5 or 6 votes, but the fact is that it's less of a good constitutional law than it is just a part of the conservative agenda.

        That said though, this specific case isn't a good vehicle for overturning CU anyway.

        Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

        by indiemcemopants on Sat Dec 31, 2011 at 11:40:04 AM PST

        [ Parent ]

    •  state vs federal elections? (1+ / 0-)
      Recommended by:
      IreGyre

      I'm hoping it might stand because it didn't dispute "Citizens United" on federal elections but upheld Montana law on state elections.

      America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

      by cacamp on Sat Dec 31, 2011 at 11:35:44 AM PST

      [ Parent ]

    •  This is not a situation of a (3+ / 0-)
      Recommended by:
      pico, J M F, IreGyre
      state can't just assert an exemption from federal constitutional law based on perceived unique circumstances

      This is a question of whether Citizens United held that the 1st Amendment provides a per se (absolute) protection to corporations or whether there can be restrictions if they are supported by a compelling state interest. That, by the way, is standard 1st Amendment analysis.

      The MT court say that CI allows for laws to be upheld if they are supported by a compelling state interest. ("State" means government.) The Supreme Court will have to reiterate that position because it has never held that any Constitutional right is absolute. But then the question will be how high, in practice not just verbiage, the standard is.

      Further, affiant sayeth not.

      by Gary Norton on Sat Dec 31, 2011 at 11:38:06 AM PST

      [ Parent ]

      •  Right, but SCOTUS didn't just set the bar high (2+ / 0-)
        Recommended by:
        coffeetalk, VClib

        on the possibility of compelling state interest, they more or less eliminated it by saying it wasn't possible to regulate indirect political speech under the First Amendment.  Montana's trying to argue that its circumstances are unique, but those specifics don't seem to contradict or complicate SCOTUS' holding at all: the fundamental constitutional issue is still intact.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Sat Dec 31, 2011 at 11:46:40 AM PST

        [ Parent ]

      •  question from a non-lawyer: (2+ / 0-)
        Recommended by:
        anninla, Gary Norton

        one sentence that caught my eye in the opinion was

        The Court explains that Montana has a small population and enjoys political campaigns
        marked by person-to-person contact and a low cost of advertising compared to other
        states. Opinion, ¶ 30.

        Might that lead the SC to a decision where small states have greater protection from corporate money than large ones, just as the Voting Rights Act protects minority-majority districts only in certain states that were found to have been in egregious violation of voting laws? So that states like IA, MT, or NH could have protection, but not CA, NY, or TX?

        "The only thing we have to fear is fear itself."........ "The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." (yeah, same guy.)

        by sidnora on Sat Dec 31, 2011 at 11:56:38 AM PST

        [ Parent ]

    •  If they do that, then we OCCUPY. (0+ / 0-)
      and will reverse the Montana Supreme Court’s decision.

      This time we can let them know in advance, and give them an opportunity to back down gracefully.

      "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

      by ehrenfeucht games on Sat Dec 31, 2011 at 12:14:27 PM PST

      [ Parent ]

      •  Occupy what? (5+ / 0-)
        Recommended by:
        Adam B, mmacdDE, quiet in NC, VClib, pico

        Justices Roberts, Alito, Scalia, and Thomas are not going to be swayed by what Occupy thinks or says.  

        Justice Kennedy WROTE the CU decision, so he's not changing his mind.  

        The SCOTUS is set up so that the Justices do not answer to the views of the people directly.  If they did, Brown v. Board of Education (which was opposed by a majority of the citizens of this country at the time) would never have been decided.  

        A protest like Occupy can influence the legislative and executive branches.  The courts are not supposed to be influenced by  protests.  

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