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View Diary: How John Roberts orchestrated the Citizens United decision (220 comments)

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  •  And they aren't done yet (76+ / 0-)

    Just wait until June when the right wing lunatics on the court strike down healthcare reform.

    The right wingers on the Supreme Court don't give a damn about handing down fair rulings, they care about serving their corporate masters and playing petty right wing politics.

    "Load up on guns, bring your friends. It's fun to lose and to pretend" - Kurt Cobain

    by Jeff Y on Tue May 15, 2012 at 11:53:15 PM PDT

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    •  Agreed. I'm afraid they're just warming up. (18+ / 0-)

      The Republican motto: "There's been a lot of progress in this country over the last 75 years, and we've been against all of it."

      by Hillbilly Dem on Wed May 16, 2012 at 06:10:30 AM PDT

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    •  This highlights the reason it is so important that (34+ / 0-)

      we do not fail to get Obama re-elected, and that we regain the House and hold the Senate.
      There will probably be at least 2 new Justices in the next term.
      We have a long, long, hard fight ahead. Roberts et al will be around for a long time.
      If we win, all the millions spent by the plutocrats in this election cycle will have been wasted, and it will be a re-affirmation of our democracy.
      Maybe, just maybe, the Roberts cabal will be chastened.
      Maybe they'll be less "activist" going forward.

      I'd rather have a buntle afrota-me than a frottle a bunta-me.

      by David54 on Wed May 16, 2012 at 06:15:51 AM PDT

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      •  Obama is deeply flawed - bear with me here (9+ / 0-)

        The key to my argument is to understand what it means for the United States to be a republic.  A few months ago, attempting to block the forcible assumption of municipal governments by "emergency" managers appointed by the Republican governor of Michigan, Rep. John Conyers pointed to the clause of the U.S. Constitution that guarantees to the states a republican form of government. A few days ago, Armando pointed to the clause again, in his post, Occupy and the Constitution, Part 2, about Prof. Jack Balkin and the recent conference at Yale on a "living" interpretation of the Constitution. Armando quoted Balkin:

        The American Constitution is the framework for a democratic republic. A democratic republic, in turn, is system of government that is designed to be responsive to the people of the United States as a whole, and not to the wealthiest 1 percent.

        [...] A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter-- our Constitution

        If you begin to study this issue, you find, very quickly, that the founding fathers and mothers concluded, from their intense historical study of previous republics, most especially Rome, that the most important safeguard of a republic was a sense of public virtue within the population. When Benjamin Franklin responded to a lady's query on what form of government had been created at the end of Constitutional Convention, he replied, "A republic - if you can keep it." Franklin was pointing to the danger of public virtue being corrupted, which would lead to a loss of understanding about what a republic is, and how it must be protected from its two major enemies: 1) a standing army and 2) the rich - who Madison warned in Federalist "Number 10" tended to form political factions that undermine republican government.

        The two books I found that delve into this issue are Bernard Bailyn's The Ideological Origins of the American Revolution, and Gordon Wood's The Creation of the American Republic, 1776-1787. John F. Kasson does an excellent job of summarizing these two important works in his book, Civilizing the Machine: Technology and Republican Values in America, 1776-1900:

        The roots of republican ideology extended deep into English politics and the English libertarian tradition, Puritanism, Enlightenment rationalism, ancient history and philosophy, and common law – and those roots were strengthened rather than severed by being transplanted into the fertile soil of America. The notion of republicanism began with a conception of the relationships among power, liberty, and virtue. The balance among these elements, Americans’ reading and experience taught them, remained delicate and uneasy at best. Power, as they conceived it, whether wielded by an executive or by the people, was essentially aggressive, forever in danger of menacing its natural prey, liberty or right. To safeguard the boundaries between the two stood the fundamental principles and protections, the “constitution” of government. Yet this entire equilibrium depended upon the strictest rectitude both within government and among the people at large. To the eighteenth century mind republicanism denoted a political and moral condition of rare purity, one that had never been sustained by any major nation. It demanded extraordinary social restraint, what the age called “public virtue,” by which each individual would repress his personal desires for the greater good of the whole. Public virtue, in turn, flowed from men’s private virtues, so that each individual vice represented a potential threat to the republican order. Republicanism, like Puritanism before it, preached the importance of social service, industry, frugality, and restraint. Their opposing vices—selfishness, idleness, luxury, and licentiousness—were inimical to the public good, and if left unchecked, would lead to disorder, corruption, and ultimately tyranny. The foundation of a just republic consisted of a virtuous and harmonious society, whose members were bound together by mutual responsibility.
        The framers closely studied the Roman writers who had recorded the faults and ruin of the Roman republic. Among the most important of these was Sallust. The Table of Contents of Sallust's Discourses gives you a flavor what the framers were concerned about:
        DISCOURSE I Of Faction and Parties
        Sect I How easily the People are led into Faction and kept in it by their own Heat and Prejudices and the Arts of their Leaders how hard they are to be cured and with what Partiality and Injustice each Side treats the other
        Sect II How apt Parties are to err in the Choice of their Leaders How little they regard Truth and Morality when in Competition with Party The terrible Consequences of all this worthy Men decried and persecuted worthless and wicked Men popular and preferred v Liberty oppressed and expiring

        Sect IV How apt the World is to be deceived by Glare and Outside to admire prosperous Iniquity and to flight Merit in Disgrace Pub sic Spirit the Duty of all Men The Evils and Folly attending the Want of it

        DISCOURSE VI Of Public Corruption particularly that of the Romans
        Sect I The Interest of Virtue and of the Public every Man's Interest Sect

        Sect II The fatal Tendency of public Corruption The Public sometimes served by encouraging private Corruption Other Means of Corruption beside that of Money Corruption sometimes practiced by those who rail at it in some Instances by good Men who hate it

        The only real safeguard against corruption as it was understood then (not the way corruption is understood today, as the mere selling of favors and influence by government officials) was an educated public. Only an educated public could properly value the republic, and understand the dangers to the republic, and how to combat them. Only an educated public could spot those political leaders who had been corrupted and lost their sense of public virtue, and subject them to the censure and punishment requisite for preserving the republic. As Jefferson states, "An informed citizenry is the bulwark of a democracy."

        Now, we need to ask the question, does electronic means of communications lend itself to informing the citizenry? Well, yes and no. Certainly, there are lengthy documentaries that serve to inform; there may even be 30-second political ads that inform truthfully. But I believe that there is a major difference between electronic media and printed media: electronic media, most especially in the form of short radio and TV spots, are designed more to appeal to emotion than to reason. I believe that social scientists such as psychologists, sociologists, and linguists can marshal more than enough evidence to prove this - even in a court of law. Recall that one of the historic developments in U.S. jurisprudence was the Brandeis brief, a legal argument submitted to the Supreme Court by Louis Brandeis (before he was appointed to the Court), which relied more on sociological studies and statistics than on legal citations to make the argument that it was NOT unconstitutional for a state to restrict the number of hours a woman could work each week. (The issue was that working 50 or 60 or more hours a week had a negative effect on the "health, safety, morals, and general welfare of women.")

        Similar to Brandeis' important and pioneering use of social studies and statistics to buttress a legal argument, I believe that the scientific evidence can be marshaled to show that short radio and TV spots do more harm than good when weighed in the balance of whether the advance or retard the public virtue of the republic's citizens. And thus, political ads on TV and radio can be declared unconstitutional and be banned, just like cigarette commercials.

        So, if you've stayed with me this long, you're probably still wondering why I assert that Obama is deeply flawed. Under his administration, we are losing some of the most valuable sources of public information about our country: The Statistical Abstract of the United States, which has been a vital compilation of data since 1878. If an informed citizenry is a bulwark of democracy, then what does it say when one of the most important and unique sources of all types of information about our country is shut down? If you have not ever turned to a Statistical Abstract for information, I can honestly say you don't know what you've been missing. It is an extremely useful and important for statistical information on voting, government budgets, agricultural and industrial production, summaries of census data, transportation systems and trends, energy production, distribution and consumption, the armed forces, and much, much more. The President's reaction to the proposal to eliminate The Statistical Abstract should have been knee-jerk, immediate, and furious. As one observer put it:If Information Is Power, What Is Lack Of Information?

        A conservative is a scab for the oligarchy.

        by NBBooks on Wed May 16, 2012 at 08:39:24 AM PDT

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        •  I read through this, and I ask - do you mean only (1+ / 0-)
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          President Obama is deeply flawed, or do you really mean the government.  The reason I ask is because the actions of Republicans, to me, means they want the public as uneducated and docile as possible.  Yes, President Obama is the President of the country, but he's just one person in the whole government and there are some practical limits to what he can direct Congress to do, especially when the Republicans control the House and are blocking anything they don't agree with in the Senate.  The Republicans are happy with this, with the possible exception of those who would use the information from that to figure out new ways to make money.

          You can take the potshot at President Obama, but I think your point should be directed at the whole government, not just our current President.

          •  The government is not animate, it is comprised (5+ / 0-)
            Recommended by:
            BeeDeeS, Byrnt, CanyonWren, Wolf10, wsexson

            of people, and those people are flawed. I have been forced to conclude that President Obama does not quite comprehend this whole argument about what a republic is supposed to b. But then, who does? I forgot to begin by stating that Deputy Solictor General Malcolm Stewart could have avoided the "banning books" trap by developing this argument of electronic media doing more harm than good in advancing the understanding of citizens in a republic. Clearly, Stewart does not understand the argument - or did not think of it at the time he was being grilled by Roberts. So, I think it's not just President Obama that is flawed. It's almost everybody in positions of leadership - in government and out. I fully agree with Atrios last month when he commented on the incredible stupidity of economic austerity that both Democratic and Republican leaders are pursuing:

            Our system of producing elites is clearly broken. We are now producing horribly incompetent elites. People of the too incompetent to know they're incompetent variety. There's evil in there too, but I think the real problem is stupidity and incompetence.

            As for the Republicans, I have argued that their economic beliefs amount to sedition, using exactly the case of Citizens United: Citizens United – The Sedition of the Roberts 5. So there's stupidity and ignorance on both sides of the aisle. Evil, however, is almost entirely on the Republican side, imho.

            Which leads me to another observation about President Obama. In David Remnick's The Bridge: The Life and Rise of Barack Obama, by no means a hostile biography, the description of Obama's years at Harvard Law School make it clear that Obama treated conservatives and Republicans "fairly" and as legitimate participants in the political process. Well, we all did back then. But now we see what has emerged from the wrong-wing, and I think it is time to boldly declare that conservatives and Republicans are NOT egitimate participants in the political process because they are a fifth column for the creation and maintenance of new oligarchies that are fundamental threats to our republican system of government. I would be very surprised if President Obama and most Democratic Party leaders did not recoil in horror from this harsh judgement of  conservatives and Republicans. But as I have argued before,  conservatives and Republicans are pursuing the same policies and the road to ruin that the Southern slave-holding oligarchy did in the 1850s. If you accept that judgement of conservatives and Republicans, I think you can only conclude, so far, that President Obama is as flawed as James Buchanan.

            A conservative is a scab for the oligarchy.

            by NBBooks on Wed May 16, 2012 at 10:03:53 AM PDT

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            •  I don't see him as "deeply flawed". I do have (2+ / 0-)
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              wishingwell, subtropolis

              some disappointments in him, but I don't believe anyone can understand every point of every part of the Presidency.  There's much that he has to depend upon his advisors for, and if they fail him, he fails.  However, I feel he has done far more right than wrong; he has certainly been much better for America than McCain/Palin would have been.  Everyone has flaws, but I'm still in President Obama's camp and I'm still doing what I can to help him make up for those flaws (LTE, letters to, etc).

            •  Alas, Obama has tended to legitimate Republicans (0+ / 0-)

              in ways that his most avid supporters at this site would find execrable in anyone else.

              The frog jumped/ into the old pond/ plop! (Basho)

              by Wolf10 on Wed May 16, 2012 at 03:02:54 PM PDT

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              •  baloney (1+ / 0-)
                Recommended by:

                He has consistently taken the high road, and he has repeatedly affirmed that he wants to govern with the entire nation in mind. Contrast that with the other side. That FOXNews can nonetheless make that appear to "legitimate Republicans" is not a failing of the President.

                All things in the sky are pure to those who have no telescopes. – Charles Fort

                by subtropolis on Wed May 16, 2012 at 10:46:11 PM PDT

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            •  They're flawed because they're human. We all are. (0+ / 0-)

              ...aren't we?

              I'd rather have a buntle afrota-me than a frottle a bunta-me.

              by David54 on Wed May 16, 2012 at 06:02:32 PM PDT

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        •  That is crazy talk (0+ / 0-)
          Similar to Brandeis' important and pioneering use of social studies and statistics to buttress a legal argument, I believe that the scientific evidence can be marshaled to show that short radio and TV spots do more harm than good when weighed in the balance of whether the advance or retard the public virtue of the republic's citizens. And thus, political ads on TV and radio can be declared unconstitutional and be banned, just like cigarette commercials.
          •  Really? Then explain to me (1+ / 0-)
            Recommended by:

            how you decide hate crimes embody hate? What is the normative basis? And, tell me, does it mean anything at all that this is supposed to be a republic? Does the concept of public virtue have validity or not?

            Just mark my words. I've read a lot of history, and I think I recognize the path we're on. Are we always foredoomed to the same bloody ending? Or can we call an oligarchical fifth column exactly what it is and find the means within the corpus of law to defend the republic therefrom?

            About a year ago, Zephyr Teachout had a very interesting article on how the republican conception of corruption was eclipsed by free speech rights. From The Historical Roots of Citizens United v. FEC: How Anarchists and Academics Accidentally Created Corporate Speech Rights (pdf file):

   the 1874 case Trist v. Childs, the Supreme Court refused to enforce a contract to lobby, because paid lobbying was so fundamentally corrupt that to use the law to enforce such a contract would be to undermine the legitimacy of the government that enforced the law.11 Ten years later in Ex Parte Yarbrough, Justice Miller wrote eloquently about how any state has, as a constitutional, foundational element, the right and duty to fight against the twin threats of violence and corruption.12 The right to combat these evils, the Court held, need not be constitutionally grounded in order to be constitutional—such rights are fundamental and presumed in the very structure of a republican state.13 Neither of these cases was an outlier. They reflected a broad consensus that one of the fundamental goals of the American constitutional system was to protect against corruption.

            A conservative is a scab for the oligarchy.

            by NBBooks on Wed May 16, 2012 at 02:04:48 PM PDT

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            •  "Hate" crimes regard motive. (0+ / 0-)

              I have no idea what they have to do with banning speech.  

              •  There has to be some normative basis (0+ / 0-)

                for deciding what is hate. If there is, there is also a normative basis for deciding what is allowed as free speech. We do not, for example, allow free speech for military officers. Why? Because it is understood that the framers considered a standing army one of the greatest dangers to a republic. Therefore, military officers are not allowed to publicly criticize civilian authority. But what of rich people? At the time the Constitution was framed, it was understood that wealthy elites were as much a danger as military officers. Madison writes in Federalist Number 10 on the dangers of factions, and notes that factions most often arise based on economic interests. Why can we not limit the free speech of the wealthy in the same way we limit the free speech of military officers. I suggest the reason you are uncomfortable with the idea is because you have a historically inaccurate view of free speech as an absolute right. Zephyr Teachout's  article The Historical Roots of Citizens United v. FEC: How Anarchists and Academics Accidentally Created Corporate Speech Rights (pdf file) shows how the conception of free speech as an absolute right evolved, and discusses how the (republican) conception of corruption as a danger to the republic has suffered as a result. If nothing else, free speech versus corruption is a very interesting historical trade-off to ponder.  

                My position, of course, is that short spots on radio and TV have nothing to do with informing the citizenry, and are almost wholly intended to give the public a corrupted view of some political faction or other. I think a return to the original balance between corruption and free speech would allow us to prohibit political advertising on TV and radio. The impact on campaign finance would be, I believe, extremely beneficial, since it would remove the need for hundreds of millions of dollars for advertising, and force political campaigns to be based on street and community organizing.

                A conservative is a scab for the oligarchy.

                by NBBooks on Wed May 16, 2012 at 02:55:10 PM PDT

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          •  Cigarette ads weren't declared unconstitutional. (1+ / 0-)
            Recommended by:
            Adam B

            I'd rather have a buntle afrota-me than a frottle a bunta-me.

            by David54 on Wed May 16, 2012 at 06:03:41 PM PDT

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        •  I see. So our choices are Romney or Nader... (0+ / 0-)

          I'd rather have a buntle afrota-me than a frottle a bunta-me.

          by David54 on Wed May 16, 2012 at 06:01:30 PM PDT

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      •  You are right. What does that say for our system? (0+ / 0-)

        Err ... That sounds wrong... I mean, what does it say about our system, that the bottom line to American electoral politics boils down to electing the person who controls appointment to the Supreme Court? Presidents come and go but a SHIT Supreme Court ruling can stand for centuries.

        What does it say when you realize we voters don't actually elect the person who controls the appointments to the SC? What do you think when you recall Senators were not elected either, under the original Constitution structure? What do you feel when you remember voting rights belonged only to a minority of Americans?

        To me it says the Founding Fathers were not so keen on that idea of representative democracy after all. The older I get, the more advantage I see to parliamentary systems. John Roberts is the ugly posterboy for why American democracy must be dragged kicking and screaming into the 21st Century.

        •  of course the founding fathers weren't keen (0+ / 0-)

          on representative democracy -- that's why it took an amendment to the constitution so people could elect us senators, instead of state houses.

          the power elite in the early days of the us had a distrust of the mob (to put it mildly) & in some cases, a downright disgust for anyone who wasn't educated or a landowner, or both.

          that's why jim demint(ed) & his ilk want to get rid of universal suffrage & junk the constitution.  they think a good old-fashioned theocratic dictatorship would be just fine -- & they're working their asses off to make it happen.

      •  regain the House and hold the Senate (1+ / 0-)
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        That can't be repeated enough. The very people who are currently perverting democracy courtesy of Citizens United have probably already decided their best bet is on the regional races. What happened in 2010 was terrible; if they even just hold the House it'll be disaster enough, but if they take the Senate as well …

        All things in the sky are pure to those who have no telescopes. – Charles Fort

        by subtropolis on Wed May 16, 2012 at 10:38:38 PM PDT

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    •  The oral argument never mattered (30+ / 0-)

      Except of course the one between Roberts and the GOPs financial backers.  Remember George Bush was a total partisan and politicized everything. No way Roberts would have been nominated if he'd been a careful jurist

      •  This was Roberts' Quid Pro Quo... (11+ / 0-)

        ... his payback for having received the nomination for Chief Justice, which in itself I believe was Bush's quid pro quo for Roberts' help in Bush v. Gore.

        This is a disgusting perversion of Democracy... and, regrettably, TOTALLY predictable considering what the GOP has done to further the interest of its plutocratic patrons.

        The GOP's version of the golden rule is "WE who have the gold shall make the rules"

        For a better America, vote the GOP out of office whenever and wherever possible and as soon (and as often) as possible!

        by dagnome on Wed May 16, 2012 at 08:48:47 AM PDT

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        •  New Yorker article misses 2 Critical Key Points. (22+ / 0-)

          1.  Roberts INVITED this case before SCOTUS.  Citizens United, according to Stevens dissent, hadn't exhausted lower court processes.

          2.  Roberts and his 4 cohorts changed the scope of the Citizens United case as it appeared before the lower courts.

          Why?  Because they could, wanted to, and did.


          This diary examines these two points and Stevens' dissent:

          Roberts Invited Citizens United Before SCOTUS Because He Wanted To: Activism

          Justice Stevens writes, in his Citizens United dissent:

          ...the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court's invitation.

          This procedure is unusual and inadvisable for a court.

          Our colleagues' suggestion that "we are asked to reconsider Austin and, in effect, McConnell," ante, at 1, would be more accurate if rephrased to state that "we have asked ourselves" to reconsider those cases. (emphasis mine)

          Justice Stevens concludes, in his dissent:  
          Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
          Citizens United had not exhausted lower courts, an accepted pre-requisite for a case prior to being chosen by SCOTUS for review before the Court.

          Stevens writes:  

          It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed, and it is "only in the most exceptional cases" that we will consider issues outside the questions presented.
          Justice Steven's dissent states clearly that Citizens United failed to assert an "exceptional circumstance"
          The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any.

          That is unsurprising, for none exists.

          It's difficult to be happy knowing so many suffer. We must unite.

          by War on Error on Wed May 16, 2012 at 09:22:00 AM PDT

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