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Everything about Citizens United is fubarred.

Chief Justice Roberts literally invited Citizens United before the Supreme Court and broadened the scope of Citizens United because he wanted to.

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.
Again, Chief Justice Roberts invited Citizens before the Court and the Conservative Court majority changed the scope it addressed because they wanted to. That's activism.

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.

Peter DeFazio, looked into impeaching Justice Roberts.

It almost cost Representative DeFasio the election, ironically because the floodgates were opened by Citizens United for anyone and everyone to fund DeFazio's competitor and run attack ads against Defazio.  Not surprisingly, that included Wall Street monied players.

a so-called Super PAC group called The Concerned Taxpayers of America paid $300,000 for ads attacking De Fazio... solely funded by $300,000 from Daniel G. Schuster Inc., a concrete firm in Owings Mills, Maryland, and $200,000 from New York hedge fund executive Robert Mercer
On what grounds did DeFazio believe impeachment of Roberts could be based?
I'm investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn't be a judicial activist, and he wouldn't overturn precedents.
ibid
This New York Times article quotes John Roberts Senate hearings testimony:

Strange behavior on John Roberts part in light of his words:

There are clear benefits to a greater degree of consensus on the Court.  

Unanimity or near unanimity promote clarity and guidance to lawyers and to the lower courts trying to figure out what the Supreme Court meant.

Perhaps most importantly there are jurisprudential benefits:

The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds.

It's when the decision moves beyond what's necessary to decide the case that justices tend to bail out.

If it's not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more.

In Felix Frankfurter's words, a narrow decision helps ensure that we "do not embarrass the future too much." (emphasis mine)

And during his 2005 confirmation hearing, a copy of which was published by USA Today, Roberts famously said,:

"Judges and justices are servants of the law, not the other way around.

Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

DeFazio was clear about his outrage and disappointment:
I mean, the Supreme Court has done a tremendous disservice to the United States of America.  They have done more to undermine our democracy with their Citizens United decision than all of the Republican operatives in the world in this campaign.
The majority of Americans agree with DeFazio:
Poll after poll has shown that Americans oppose Citizens United by about 4 to 1. A new poll by Hart Research Associates [pdf] found that 82 percent of voters believe Congress should limit the amount of money corporations can spent on elections; 77 percent of voters believe that corporations have more control of our political system than average citizens do. An August poll sponsored by MoveOn.org found that 77 percent of people believe that corporate election spending represents “an attempt to bribe politicians” (compared to just 19 percent that bought the counterargument, that election spending is simply “a form of free speech.”)
Small Business owners agree that Citizens United is harmful:
An opinion poll released Wednesday found that two-thirds of small business leaders believe the U.S. Supreme Court’s Citizens United decision hurts them, and a whopping 88 percent view money as playing a negative role in politics.
In 2010, 40 percent of outside money made possible by Supreme Court ruling

How will the Citizens United ruling affect the outcome of the 2012 Presidental Election?  

Below is a deeper analysis of Justice Stevens dissent to Citizens United.

Corporate States of America

Prior to Roberts, the conservative court voted in favor of George W. Bush.  The only time in history that the US Supreme Court decided the results of a Presidential election.

This time the conservative court voted to overturn over 100 years of legal precedent by giving Corporations the same status as individuals, even though that isn't even what Citizen's United was asking for, and removing 100 years of legal barriers in place to protect the electoral process from corporate and legislative corruption, which is what the laws for the past 100 years were in place to do.

Rep. Peter DeFazio writes  

"Justice Stevens makes the point that Roberts decided a case that wasn't even before the Court, and invited the issue before the Court,"

"It was the most extraordinary condemnation I've ever read of a perverted majority on the Supreme Court, at least in recent years."

According to Stevens:

The real issue in this case concerns how, not if, the appellant may finance its electioneering.

Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets.

Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to.

It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election.

Neither Citizens United's nor any other corporation's speech has been "banned," ante, at 1.

All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period.

The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.

Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

I interpret this to mean that Citizen's United had no constraints on its right to broadcast its message except, in accordance with BCRA/2002, up to and excluding the 30 days before the last primary election.  Citizen's United asked the court to rule for a change to BCRA, asking for the right to amend the law to allow the broadcast during the 30 days prior to last primary.

Seems like a simple question to be set before the Court, but not necessary for the Court to hear the case.

Roberts court chose to take up this case and to change the focus to broader issue of corporate 'personhood'.

Roberts court put aside over 100 years of legal precedent.  In Steven's words:

The majority's approach to corporate electioneering marks a dramatic break from our past.

Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864.

The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990).

Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including

FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL),

McConnell v. FEC, 540 U. S. 93 (2003),

FEC v. Beaumont, 539 U. S. 146 (2003),

FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and

California Medical Assn. v. FEC, 453 U. S. 182 (1981).

In short, the Roberts' Court cited the opinions of the dissenters to the questions that were answered in prior courts and made into law that kept corporate influence on elections in check.

What is also of interest, and could be used to declare activism on the part of Roberts, is that Roberts' argued this case on merits not covered in lower courts which explains, in part, Stevens dissent and comment above.

There was insufficient prior court rulings on this case for it to be eligible for a Supreme Court hearing/ruling:

Stevens:

The problem goes still deeper, for the Court does all of this on the basis of pure speculation.

Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions.

In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent.

Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert.

The Court now negates Congress' efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United.


And, if all this isn't bad enough, apparently the Roberts' court based its findings on imaginative future possibilities invented as justification for its ruling.  
While tacitly acknowledging that some applications of §203might be found constitutional, the majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint.

Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies, may raise some unanticipated difficulties at the margins.

The fluid nature of electioneering communications does not make this case special.

The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge.

Beside which, Citizen's United abandoned its facial challenge in District Court prior to its approach to the Supreme Court.
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a.

In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id., Nos. 53 (May 22, 2008), 54 (May 23,2008), App. 6a.

The District Court therefore resolved the case on alternative grounds, and in its jurisdictional statement to this (Supreme) Court, Citizens United properly advised us that

it was raising only "an as-applied challenge to the constitutionality of . . . BCRA §203." Juris. Statement 5.

An as-applied challenge to a Congressional ruling:  BCRA ss203.  PERIOD.  No mention of previous Supreme Court rulings in the lower courts.  Citizen's United injected a limited  request to overrule Austin AFTER its lower court history and injected it in its Merit Briefing to the Supreme court.

Stevens:

Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin,

it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions;

instead it argued only that the statute could not be applied to it because it was "funded overwhelmingly by individuals."

Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming "as applied" character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)(counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that "we accept the Court's decision in Wisconsin Right to Life").

Keep in mind, the Roberts Court majority chose the path and scope it addressed using the Citizen's United case.  That's activism.
"‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,'" Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)),

and it is "only in the most exceptional cases" that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976).

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.

Stevens' conclusion:
Setting the case for reargument was a constructive step, but it did not cure this fundamental problem.

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.

And here we are.  Tens of millions of money coming from heaven (hell more likely) knows, buying this mid-term election with the Blessings of the the Roberts majority.

I hope and pray that money can't buy an election, but it is possible.

And now, I am going to ask questions that I do not take lightly.  I will be shocked to learn if no one else is thinking of them, too:

Are we at risk of being governed by a new form of fascism?  The old form being the State taking over corporations and ruling.  The new form the State being taken over by the corporations?

Have we already been taken over by fascist rule?  Just because we go through the choreography of elections, doesn't define us as a true democracy, does it?

I ask this honestly albeit very unhappily, and with the deepest concern for each and every citizen of our country and for the world.  Because what will that mean for each of us, our children, and the world?

I became most alarmed that this is possible after researching the Housing Bubble for two years where I learned that the run away profits from this Bubble were enabled on all levels of governance.  Collusion by those with power and influence was 100% (with a few minor exceptions I am sure).

And, if that wasn't nuevo fascist enough, tens of millions of Americans are at the mercy of corporations who have taken away their livelihoods, refuse to hire even when flush with cash, and are now taking away the homes of 800,000 families a month.

HOW MUCH OF A WAKE UP CALL DO WE NEED?

This one case, Citizen's United, is the wake up call.  You will be convinced if you take the time to read Steven's dissent in full.  We, the people, do not have a Supreme Court right now.  We have a Corporate Court!

We are at risk of having a more Corporate House and a more Corporate Senate.

If we fail to secure a TRUE BLUE majority in both, our hands will still be tied by the Corporate Representatives and Senators.

That leaves one branch to save this country from outright fascism.  The Executive.

Can the President win our battle for us?  No.  

Are corporations building up an angry, militant citizenry that could take this country to the brink?  Yes.

Will the corporations ever stop trying and vying for complete control?  No.

So, what do we do?  How do we save the democracy our forefathers died for, bled for, and worked for?

How do we achieve a Social Democracy like the Nordic countries enjoy where health and even higher education are provided so all the people are TRULY free to work hard and achieve their highest potential, not just the elite?  where green energy is pursued/implemented?  where health of body, mind, and spirit are fostered and revered? where our children don't become debt slaves in order to get an education?  where nearly half the country's resources aren't spent on military pursuits?

We hear all the talk of a New World Order which I have always assumed would be impossible because politicians and varying political structures would never be able to form a consensus.

But, if corporations can run a State as powerful and the United States, what is to keep them from running the world?  

The world has allowed a corporate take over of the world.  

Corporations own energy, water resources, transportation, mercenary armies, mines, agriculture, financial management, and so on.  

Corporations control the resources we need for survival.  We have given them that power via raw capitalism.

Corporations now control nearly every aspect of our lives in one way or another.  And do any of us doubt that they won't seek more and more control?  Right down to VeriChips and exoskeletons?  I know it all sounds outlandishly sci-fi, but sci-fi is here and now.  

Can we really afford to believe otherwise?  Do we really believe corporations care one iota about you and your personal welfare?  They don't.

And now, the Supreme Court of the United States would be better termed The Corporatist Court of the Corporatist States of Former America and it has provided corporations with power to sway our elections, to steal the small remaining representation we have.

Here's a little talked about and disturbing fact:

Private equity firms, partially financed by Bank of America, now own Dyncorp and Blackwater/Xe/Academi.  Private mercenari armies.

Private Equity Firms Own War Contractors: DynCorp

Erik Prince's XMas Gift:  A Buyer for Xe/Blackwater, SOLD

What could possibly go wrong?

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Comment Preferences

  •  Tip Jar (8+ / 0-)

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

    by War on Error on Wed May 16, 2012 at 09:46:58 AM PDT

  •  I agree that Citizens United does exactly what you (3+ / 0-)
    Recommended by:
    War on Error, Bob Love, aliasalias

    say - it makes the government the servant of and tool for wealthy corporations who can then basically buy any legislation that they want, offered up by the politician they paid to get into office.

    It's hard to see how anyone can look at it differently.

    And then also bear in mind that the same incredibly unjust Supreme Court also decided previously that government can use eminent domain to transfer private property to another private/corporate interest.

    Why would it be a stretch to imagine some corporation in the very near future deciding that they wanted half of scenic bucolic Tinytown to be condemned and turned over to them for their unicorn processing plant, and to have the goal accomplished through their paid off state politicians?

    When Kelo, an almost as abhorrant decision as Citizens United was made, the supposed protection against abuse was lawmakers at the state level enacting controls on eminent domain. In my opinion, it's probably easier , not harder to bribe pols at the state level.

    So, the Supreme Court has facilitated corporations buying any and all government functions they like PLUS possibly throwing in your private property to boot.

    I personally believe probably the only reason the ascendant corporations will see in the future for keeping nations and government alive at all is strictly to fund the coffers they intend to pilfer through the power of taxation.

    It's like we all exist in some horrible prequel to Robocop. All brought to us courtesy of the Supreme Court.

    “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

    by Phoebe Loosinhouse on Wed May 16, 2012 at 10:21:47 AM PDT

  •  I'm sure the Goopers and Tea Party folks will (1+ / 0-)
    Recommended by:
    War on Error

    roundly condemn these activist judges legislating from the bench!!!!  Any time now....

    "Give to every other human being every right that you claim for yourself." - Robert G. Ingersoll

    by Apost8 on Wed May 16, 2012 at 11:43:46 AM PDT

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