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Justices of the Montana Supreme Court
Justices of the Montana Supreme Court
The Montana Supreme Court, let's be clear, did not quite overturn Citizens United last week. Its 5-2 decision did uphold a ban in Montana state races on corporations funding independent expenditure ads, but the benefits of this decision will be extremely short-lived.

First off, what happened here? The Montana law in question states that "a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." In other words, just like the federal law pre-Citizens United, no direct contributions to candidates, and (the issue here) no independent spending on their behalves.

So why did five Montana Supreme Court justices not see this as an open-and-shut case? What makes Montana different? According to the majority, it’s Montana’s unique history:

[T]he Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century. (Montana became a state in 1889.) Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations. These disputes had profound long-term impacts on the entire State, including issues regarding the judiciary, the location of the state capitol, the procedure for election of U.S. Senators, and the ownership and control of virtually all media outlets in the State.

Examples of well-financed corruption abound. In the fight over mineral rights between entrepreneur F. Augustus Heinze and the Anaconda Company, then controlled by Standard Oil, Heinze managed to control the two State judges in Butte, who routinely decided cases in his favor. K. Ross Toole, Montana, An Uncommon Land, 196-99 (Univ. of Okla. Press 1959) the Butte judges denied being bribed, but one of them admitted that Anaconda representatives had offered him $250,000 cash to sign an affidavit that Heinze had bribed him. Toole, Montana, An Uncommon Land, 204.

In response to the legal conflicts with Heinze, in 1903 Anaconda/Standard closed down all its industrial and mining operations (but not the many newspapers it controlled), throwing 4/5 of the labor force of Montana out of work. Toole, Montana, An Uncommon Land, 206. Its price for sending its employees back to work was that the Governor call a special session of the Legislature to enact a measure that would allow Anaconda to avoid having to litigate in front of the Butte judges. The Governor and Legislature capitulated and the statute survives. [...]

The State of Montana was still contending with corporate domination even in the mid-20th century. For example, the Anaconda Company maintained controlling ownership of all but one of Montana’s major newspapers until 1959.

This historical understanding is crucial to understanding the particular problems Montana faces with outside corporate influence:
History professor Dr. Harry Fritz, in his affidavit presented in the District Court, affirmed that the “dangers of corporate influence remain in Montana” because the resources upon which its economy depends in turn depend upon distant markets. He affirmed: “What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work ‘in the essential interest of outsiders with local interests a very secondary consideration.’” While specific corporate interests come and go in Montana, they are always present. Montana’s mineral wealth, for example, has historically been exported from the State, and that is still true today.
The problem, however, is that the Citizens United majority already considered these arguments and rejected them. Basically, Justice Kennedy + 4 argued, independent speech doesn’t corrupt, and even if it did, well, that’s too bad:

Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States. [...] [W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. [...]
When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.
And that’s the real problem with Citizens United. It’s not that it equates corporations with natural persons. It’s that it fails to appreciate the Founders’ deep concern with corruption as evidenced in the constitutional structure, and isn’t interested in any facts demonstrating that this concern can supersede the First Amendment interests at stake.

Which leads us to Judge Nelson’s dissenting opinion, which quite frankly is one of the best judicial opinions I’ve ever had the good fortune to be able to highlight for you. I regard it as great because he appreciates the limits of his judicial role, yet doesn't shy away from stating his views. As to the majority’s reasoning, these concluding paragraphs summarize his views well:

In sum, what has happened here is essentially this: The Supreme Court in Citizens United (and in White) rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute [...]

I am not persuaded that Montana’s experience with corruption is as “unique” as the Attorney General and this Court posit. Each state has its own corruption horror stories and has battled political and election corruption at one time or another. Even a casual examination of the daily newspaper or the evening news proves that battling political corruption is ongoing; like painting the Golden Gate Bridge, when you reach one end, you start over at the other.

In other words, Citizens United is the law, and we’re all stuck with it until the Supreme Court says otherwise … oh, but by the way, Judge Nelson explains, it’s a really lousy decision:
While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business [...]

[I]t defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections. [...]

Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.


So, what happens next? I anticipate that the plaintiffs here will seek a stay of the effect of this decision from the Supreme Court Justice responsible for the 9th Circuit—Justice Kennedy—and seek certiorari to review the decision swiftly. (They have 90 days.)  And, given Citizens United, this may be a 9-0 summary reversal; at a minimum, there’s no way anyone in that majority changes his mind.

Originally posted to Adam B on Wed Jan 04, 2012 at 08:27 AM PST.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

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Comment Preferences

  •  tips, recs, and the best thing ever said about MT (83+ / 0-)

    David Letterman, on his first post-9/11 show:

    I'll tell you about a thing that happened last night. There's a town in Montana by the name of Choteau. It's about a hundred miles south of the Canadian border. And I know a little something about this town. It's 1,600 people. 1,600 people. And it's an ag-business community, which means farming and ranching. And Montana's been in the middle of a drought for... I don't know... three years? And if you've got no rain, you can't grow anything. And if you can't grow anything, you can't farm, and if you can't grow anything, you can't ranch, because the cattle don't have anything to eat, and that's the way life is in a small town. 1,600 people.

    Last night at the high school auditorium in Choteau, Montana, they had a rally (home of the Bulldogs, by the way)... they had a rally for New York City. And not just a rally for New York City, but a rally to raise money... to raise money for New York City. And if that doesn't tell you everything you need to know about the... the spirit of the United States, then I can't help you. I'm sorry.

    •  My super-duper BFF Dahlia Lithwick adds more (3+ / 0-)

      Link:

      There’s a lot to love in both the majority opinion and Nelson’s heartfelt dissent. But as Eugene Volokh notes, the opinion practically begs to be overturned at the Supreme Court. (Dissenting Justice Nelson agrees and even says the court will summarily reverse it.) But whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban. Thus Western Tradition Partnership, the lead plaintiff in the case, merits extra special scorn from the court for circulating a fundraising brochure that said, “If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.” The majority openly accuses WTP of being responsible for “a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.” The Montana majority, in other words, knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label.

      More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”

      And that may be the very best part of this week’s Iowa/Montana/Citizens United smash-up. You see, Montana elects its Supreme Court justices. And while I still oppose judicial elections for all my old high-minded philosophical reasons, I can’t help but relish the idea that their decision to politely decline to follow Citizens United wasn’t merely a rebuke to the checked-outedness of five members of the U.S. Supreme Court. It was also an early judicial campaign ad. An elected court that knows a bit about the corrupting influence of big money on judicial elections running against the idea of big money corrupting elections. It’s kind of poetic, really.

      •  Don't be so hasty... (3+ / 0-)
        Recommended by:
        wilderness voice, TKO333, brein

        The BEST part of this decision (and dissent) is that it recognizes Citizens United, and then rejects it, based on arguments not (fully) presented in the original case.  These justices have, effectively, reopened arguments and challenge SCOTUS to repudiate them.  If SCOTUS simply rejects their decision they brand themselves as partisan hacks and will go down in history as such.  They HAVE TO defend their decision, or they'll be labelled lightweights; intellectual hypocrites. NOTHING is more important to a Supreme Court Justice than their legacy.

        So SCOTUS will have to have a full hearing on this case, which will allow (at least) Kennedy the ability to change his decision and leave local election rules to local - and better informed - courts.

        The Founding Fathers were a bunch of East Coast liberals

        by ImaJoeBob on Thu Jan 05, 2012 at 11:56:59 PM PST

        [ Parent ]

  •  The Speech Is What Possesses the Freedom, Seems (1+ / 0-)
    Recommended by:
    Ed in Montana

    to this layman's eyes, so it's not especially important to the rightwing where it comes from.

    They're not saying it's bad to chill corporations they're saying it's bad to chill speech. Or constrain the amount of the speech.

    Looking at the way they word these discussions I don't see how limiting corporate personhood can make any difference in this issue.

    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 Wed Jan 04, 2012 at 08:37:31 AM PST

    •  the concept of "corporate personhood" (7+ / 0-)

      Doesn't come up at all in any opinion in Citizens United No one questions that corporations have free speech rights; the question is "how much?".

    •  CU had nothing to do with "corporate personhood" (2+ / 0-)
      Recommended by:
      johnny wurster, VClib

      Which is why all these calls for "ending corporate personhood" will do nothing to change the law set out in that decision.  

      Remember the First Amendment is not a right given to persons.  It says -- as you noted -- that the Government can't restrain speech:  "Congress shall make no law . . .  abridging the freedom of speech."  The CU majority held that means essentially "no matter where the speech comes from," whether it comes from "natural persons" (in the words of the Court) or from associations or groups of persons (which includes corporations, unions, political parties, partnerships, whatever).  

      •  Ah, but it is (7+ / 0-)

        Once you say the association or group of person holds the right independently of the individuals engaging in speech, then you indeed are in the world of corporate personhood. Should a campaign ad paid for by a corporation be treated as political speech by the corporation, or as a series of commercial transactions at the end of which paid actors exercise their right to speak for money and paid television stations exercise their right to broadcast the ad? To call it political speech by a corporation is indeed to treat the corporation as a "speaker" instead of as a legal fiction that can act only through its agents.

      •  It expanded 'corporate personhood' fiction (1+ / 0-)
        Recommended by:
        Eric Nelson

        and how it interacts with federal laws attempting to regulate campaign finance for the public good, so it's not really accurate to say CU has nothing to do with that legal fiction.

        Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

        by Into The Woods on Wed Jan 04, 2012 at 01:28:59 PM PST

        [ Parent ]

        •  Justice Stevens on "personhood" in C.U. (2+ / 0-)
          Recommended by:
          TexDem, Into The Woods

          Justice Stevens

          The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets … that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” 494 U. S., at 658–659. Unlike voters in U. S. elections, corporations may be foreign controlled. [snip]
          It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.
          - emphasis added

          So it is true that personhood wasn't relevent to Roberts opinion, yet it was very relevant in the dissenting parts of Justice Stevens opinion along with whom Justice Ginsburg , Justice Breyer, and Justice Sotomayor join.

          •  Even The Majority, In Overruling "Austin" (6+ / 0-)

            and invalidating the federal election law in question in CU, removed the pre-existing distinction that had been upheld in "Austin" imposing additional restrictions on "independent" expenditures by corporations because they were corporations.

            The law in question was described by the Court as follows:

            ...Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. ...

            So defining the elements of "corporate personhood" and deciding whether the differences between a 'corporate person' and a 'flesh and blood person' can justify different treatment under the law is the very heart of the question addressed by the Court in CU.

            The opinion of the Court and the concurrences all repeatedly refer to rights held by "persons" and "citizens" and invoke the underlying sovereignty of the "people" and need for freedom of speech in the excercize of that sovereignty as justification of their decision, but those rights are extended to property taking the form of corporations solely because of the concept of "corporate personhood" and only to the extent that such "personhood" is deemed to entitle those artificial entities with the same bundle of rights granted to flesh and blood people who are citizens of the United States.

            To say that Citizens United has nothing to do with the concept of "corporate personhood" is to stand the opinion on its ear and ignore the very core of the debate.

            Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

            by Into The Woods on Thu Jan 05, 2012 at 10:46:29 AM PST

            [ Parent ]

      •  so (0+ / 0-)

        who had standing to sue then?

        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 Thu Jan 05, 2012 at 08:00:09 PM PST

        [ Parent ]

    •  except that's a logical & empirical fallacy: (2+ / 0-)
      Recommended by:
      ER Doc, Trey Sugarleaf

      The idea that "the speech" creates itself is a logical and empirical fallacy akin to spontaneous generation or the various forms of "free lunch" that are prohibited in physics.  

      Speech obviously and necessarily comes from a speaker.  The wording of the 1st A refers to the right of "the people" to peaceably assemble etc., and it's inconceivable that the Founders could have assumed that speech came from anywhere other than "the people."  

      What we need is a constitutional amendment to the effect that the law must comport with science.  That would be somewhat indirect for this case, more direct for other types of cases, but none the less.  

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

      by G2geek on Wed Jan 04, 2012 at 11:34:17 AM PST

      [ Parent ]

    •  But they also claim (1+ / 0-)
      Recommended by:
      Trey Sugarleaf

      That free speech includes the unlimited right to pay someone else to repeat your speech, over and over, using a tireless machine, that echos the repeated speech in every household in the town.  

      No-one quibbles about free speech.  It's the paid echos that are intolerable

      Here's an idea: how about the people run the government and the corporations can line up for whatever we leave for them.

      by J Orygun on Wed Jan 04, 2012 at 08:47:08 PM PST

      [ Parent ]

  •  Yup. (4+ / 0-)

    There were a few gushing diaries here that the MT SC ruling spelled the end - pardon, THE END!!!!!!!!!!!!!!!!!!!! - of Citizens United, but there is such a thing as the Supremacy Clause, and the idea that the Supreme Court, even when wrong, sets binding precedent.

    φαίνεταί μοι κῆνος ἴσος θέοισιν

    by MBNYC on Wed Jan 04, 2012 at 08:39:45 AM PST

    •  but there's an outside chance (0+ / 0-)

      They could find a way that MT is different, and restrict or modify their ruling.  Outside, but still a chance.  

      Here's an idea: how about the people run the government and the corporations can line up for whatever we leave for them.

      by J Orygun on Wed Jan 04, 2012 at 08:50:25 PM PST

      [ Parent ]

    •  The Supremes might use the Supremacy Clause (0+ / 0-)

      to toss the Montana decision.

      No discussion, no analysis, just pointing to the Constitution and saying "We win, you lose."

      I would not put that past the 5 who decided CU.  That would be the highest form of legal CYA.  Shades of Bush v. Gore.

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

      by BornDuringWWII on Fri Jan 06, 2012 at 03:11:18 AM PST

      [ Parent ]

  •  But could it be partially affirmed? (3+ / 0-)

    This is a serious question. Citizens United did not address spending in judicial elections, and one of the many unsatisfying aspects of the majority opinion was Kennedy trying to explain away his Caperton opinion in which he equated independent expenditures with contributions and said that the appearances from that spending were enough to require recusal of the justice in question. And one of the more solid parts of the Montana opinion, to me, is its argument that independent spending on judicial elections is different - the state has a compelling interest in avoiding the kind of appearances that were a problem in Caperton. They even threw in a good quote from Justice O'Connor for good measure.

    So, any chance Kennedy or someone else flips to be a fifth vote to uphold independent spending restrictions in judicial elections? I would say yes, and that is potentially the most interesting thing to come out of the case. In fact, to me it makes a 9-0 summary reversal highly unlikely.

    •  Fair question (1+ / 0-)
      Recommended by:
      VClib

      I think that Caperton points to a path for case-by-case recusal obligations for justices based on independent spending by litigants, which is a solution which is more consonant with the First Amendment than not allowing such speech at all.

    •  I chuckled reading the FL Supremes' 12/8/00 (5+ / 0-)

      opinion allowing Gore to continue the recount.  At that moment, I (naively) assumed that, by cloaking their decision in state law, they made it bulletproof from reversal by the SCOTUS.*  5 Supremes educated me differently the next day when they issued a stay that operated as a decision on the merits.

      3 of the 5 Supremes who issued that odious pair of rulings on 12/9/00 and 12/12/00 are still on the Court, and the 2 who replaced them are of like mind.  While I suspect that the other 4 may uphold the MT decision, there clearly are 5 votes for reversal here.

      *The subsequent Ginsburg dissent in B v. G cited a law review article that then AZ appellate judge O'Connor wrote favoring federal judicial deference to state court decisions, but her point fell upon deaf ears.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Wed Jan 04, 2012 at 09:05:07 AM PST

      [ Parent ]

  •  One of the best explanations (3+ / 0-)
    Recommended by:
    shaharazade, phonegery, ER Doc

    of corporate rights, those derivative of the statutes that create them and necessary to bare protection of their property rights and their exercise of powers as agents of the investors.

    On the other hand, a little judicial nullification of badly made Supreme Court law isn't a bad thing, go Montana.

  •  thx for a clear and concise post. (6+ / 0-)

    In the long run, the Montana decision's impact may be more political than legal.

    "At this point of unimaginable threats on the horizon, this is what hope looks like." - Tim DeChristopher @RL_Miller

    by RLMiller on Wed Jan 04, 2012 at 09:04:14 AM PST

  •  Doesn't CU leave some wiggle room (3+ / 0-)

    for Congress to act, should it decide to?

    When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

    This seems to suggest that it's not an absolute ruling in favor of unchecked corporate spending, only on categorical bans on corporate spending.  If Congress were to find that expenditures led to corruption (I know that sounds laughable, but they did pass McCain-Feingold after all) and propose less absolute restrictions, the courts might find in their favor.

    Or am I reading this wrong?

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

    by pico on Wed Jan 04, 2012 at 09:38:20 AM PST

  •  Isn't direct contributions still banned at the fed (0+ / 0-)

    level by corporations?

    I thought CU applied only to indirect spending on advertisements and such.  No?

      •  Ok.. Thanks. I just re-read your lead (0+ / 0-)

        paragraphs and I understand a bit better now.

        I thought the Montana case was only upholding a ban on direct spending.  But, I see now that they are banning indirect contributions as well, in direct contradiction to CU.

        •  Jerry - the federal ban is the Tillman Act of 1907 (0+ / 0-)

          Direct campaign contributions were never part of the Citizens United litigation or decision. The Tillman Act is still in full force and effect. No corporation can make any contribution to a candidate for federal office.

          "let's talk about that"

          by VClib on Wed Jan 04, 2012 at 10:26:51 AM PST

          [ Parent ]

            •  Adam, given that it is statuatory (0+ / 0-)

              it can certainly be changed by Congress. However, I assume you are talking about cases coming up through the federal courts challenging the Tillman Act. I would appreciate your take but if you read Citizens United the majority paints a very clear line between independent expenditures, and their potential corrupting influence, as compared to direct campaign contributions. I do see the legal argument to move from Buckley to CU to the next step, but I don't see five votes for overturning Tillman. Do you?

              "let's talk about that"

              by VClib on Wed Jan 04, 2012 at 10:47:45 AM PST

              [ Parent ]

              •  Well, they leave it up in the air (1+ / 0-)
                Recommended by:
                VClib

                From the Scalia/Alito/Thomas concurrence, I think there's three votes for finding no reason to discriminate between humans and corporations:

                  But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment . The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and “its capacity for informing the public,” First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 777 (1978) . Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.
  •  Kennedy could make an adjustment. (3+ / 0-)
    Recommended by:
    Just Bob, shaharazade, ER Doc

    A 5 to 4 decision of one case doesn't make for settled law. Kennedy may decide to fine tune or change Citizens United in some way we have not anticipated.

    I really don't see a 9-0 case against Montana.

    Good summation.

    Thanks.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Wed Jan 04, 2012 at 09:48:39 AM PST

    •  Kennedy's not a squish on campaign finance issues (8+ / 0-)

      He's pretty doctrinaire on this turf.

      And 5-4 is settled law (or should be) -- Miranda was a 5-4 decision.  When you flip a 5-4 the other way, you get dissents like this one, from Justice Thurgood Marshall in his final opinion:

      Power, not reason, is the new currency of this Court's decisionmaking. Four Terms ago, a five-Justice majority of this Court held that "victim impact" evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. Booth v. Maryland, 482 U.S. 496 (1987). By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. South Carolina v. Gathers, 490 U.S. 805 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U. S. — (1991), today's majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.

      In dispatching Booth and Gathers to their graves, today's majority ominously suggests that an even more extensive upheaval of this Court's precedents may be in store. Renouncing this Court's historical commitment to a conception of "the judiciary as a source of impersonal and reasoned judgments," Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970), the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case. Because I believe that this Court owes more to its constitutional precedents in general and to Booth and Gathers in particular, I dissent.

      •  Marshall was prescient. Bush v Gore (0+ / 0-)

        destroyed the Court's credibility as "a source of reasoned judgments."

        look for my eSci diary series Thursday evening.

        by FishOutofWater on Wed Jan 04, 2012 at 05:01:43 PM PST

        [ Parent ]

      •  I would add that Anthony (1+ / 0-)
        Recommended by:
        Adam B

        Kennedy is the LEAST likely to flip on what he percieves as a free speech issue.  He tends towards something approaching the absolutism of a Douglas and a Black.  The is simply not going to be any change in CU coming from the Court while the Court retains its current membership.  Period.

        Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

        by Its the Supreme Court Stupid on Fri Jan 06, 2012 at 03:52:04 AM PST

        [ Parent ]

  •  Corporate citizrenship is the heart of the matter (4+ / 0-)

    I say lets move ASAP toward treating corporations exactly like natural persons.

    Send them to jail suspend all activities, which means no employees, no commerce, etc....

    Eliminate Slavery prevent one corporation from buying another.....

    Eliminate Murder prevent a corporation from shutting down another corporation, to say nothing about a corporation intentionally buying another with the intent of selling off the pieces...

    And if a male corporation should desire to join another male corporation....well, the baptists would have a screaming fit over that one!!

  •  Then the case that MUST be found is... (0+ / 0-)

    one in where it is clear and plain that the outcome of the court decision in Citizens United only expanded corp speech but in doing so it severely limited people speech.

    where can we find this case and how do we get it to the USSC?

    "Orwell was an optimist"

    by KnotIookin on Thu Jan 05, 2012 at 07:41:41 PM PST

  •  no difference between Montana and the US (0+ / 0-)

    big companies dominate

  •  The Supreme Court keeps using that word, "speech" (0+ / 0-)

    I do not think it means what they think it means.

    •  political advertising isn't speech? nt (1+ / 0-)
      Recommended by:
      VClib
      •  money is not speech (0+ / 0-)

        No one is stopping anyone from saying anything.  The government has the right to regulate media purchasing power in a democracy, just like we have the right to prevent one company from buying every single cable station under monopoly regulation.  

        It has NOTHING to do with speech.

        •  So ... (1+ / 0-)
          Recommended by:
          VClib

          ... you believe the First Amendment allows the government to ban all political advertising?

          •  Regardless of whether CU was the 'right' decision (1+ / 0-)
            Recommended by:
            ozsea1

            At an absolute minimum, corporations should be required to disclose how much of their funds are going to political activities, and to which PACs, etc., they're going to.

            We don't want our country back, we want our country FORWARD. --Eclectablog

            by Samer on Thu Jan 05, 2012 at 08:59:40 PM PST

            [ Parent ]

            •  Its compeled speech... (2+ / 0-)
              Recommended by:
              Samer, brein

              all publicly traded corporations should be utterly banned from political speech. Every time a corp speaks that I hold stock in due to be forced to own stock in them via 401K or whatever, they are effect using my money via my partial ownership in them to compel me to speak against myself.

              at the very least they should be required to ask each shareholder whether they want a bit of their dividend spent on political uses or returned to them via the dividend so that no one is forced to speak against themselves via their money.

              •  liminousone11 - on what basis? (0+ / 0-)

                On what possible legal or accounting basis should a company be required to ask each shareholder for an approval to make an independent political expenditure? There is a well developed body of law on when shareholders must vote for a corporation to take a specific action, but those are issuing new shares, or expanding the option pool, or selling or merging the company. On the accounting side if the expenditures are material they must be disclosed, but approval isn't ever required for expenditures (except for very rare circumstances).  The officers and directors are still bound by the same business judgement rules to make the decision to spend money on a political effort in a manner that is in the best interest of the company. As a shareholder why do you think the expenditure would not also be in your interest? The notion that shareholder approval should be required for a $1 million political expense, but not the $100 new facility makes no sense from a legal or accounting perspective. Until these political expenses become material, when they will be disclosed under current accounting rules, there is no need to disclose them, and certainly no basis for requiring shareholder approval.  

                "let's talk about that"

                by VClib on Fri Jan 06, 2012 at 08:34:49 PM PST

                [ Parent ]

          •  Advertising is not speech (0+ / 0-)

            I'm not sure what you're not following.  You have the right to say anything you want.  You do not have the right to transmit whatever you want on public airwaves or into mass media markets without regulation by society.

            Just like you don't have the right to run pictures of your wife in a gangbang with a bunch of football players in the New York Times without regulation taking place.  

  •  If corporations have free speech, (0+ / 0-)

    then Citizens United was unquestionably correct and deserving only of praise.

    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 Thu Jan 05, 2012 at 07:57:06 PM PST

  •  Look At It This Way (2+ / 0-)
    Recommended by:
    akmk, brein

    If a corporation has the same "free speech" rights as an individual citizen, how many citizens does it take to equal a corporation?  An individual citizen does not have the power to buy a politician or a judge unless they are very wealthy, and in that case they are probably tied to a corporation anyway.

    "Facts are meaningless. You could use facts to prove anything even remotely true." -- H. Simpson

    by midnight lurker on Thu Jan 05, 2012 at 08:07:20 PM PST

  •  I CAN SAY WHAT EVER I WANT! (1+ / 0-)
    Recommended by:
    brein

    I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  I CAN SAY WHAT EVER I WANT!  

    (When something is so loud and pervasive that it drowns out other speech, it isn't speech any more.  It's no different than me paying a news station not to play ads of my opponent.  Which, who knows, maybe under Citizen's United, corporations can do that too.)

    One man gathers what another man spills

    by John Chapman on Thu Jan 05, 2012 at 09:59:06 PM PST

  •  FINALLY DAILY KOS (2+ / 0-)
    Recommended by:
    Don midwest, Matt Z

    it took you long enough.

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