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U.S. Supreme Court justices met behind closed doors Thursday discussing whether to revisit a 5-4 decision made two years ago in Citizens United v. Federal Election Commission that has generated massive objections and political contributions larger than the capitalization of small-town banks. It was a meeting made necessary when the Montana Supreme Court issued a ruling last year in American Tradition Partnership v. Bullock contradicting Citizens United. The Court's decision about whether to hear the Montana case in full could come as early as Monday. But if it agrees to do so, oral arguments won't be held until the fall with a decision announced probably early in 2013.

At issue is whether the Citizens United case that freed corporations and unions to spend what they like in federal elections applies also to state limits on money from outside groups.

A century ago, Montanans decided they were sick of corruption and bribery in state politics and they did something about it: barred most corporate money from elections (and limited individual contributions to candidates). You can read Gov. Brian Schweitzer's perspective on this here.

But what Montanans did for themselves in 1912, the U.S. Supreme Court overrode 98 years later with Citizens United. The ruling allows unlimited contributions from individuals, corporations and unions for electioneering purposes, athough not directly to a candidate. As a consequence, great gobs of cash, much of it from billionaires, have flowed toward independent-from-the-candidate-but-not-really Super PACs. And we're just getting started. Steve Bertoni has reported that one of those so-called angels, Sheldon Adelson, is ready to contribute $100 million to efforts directed at electing Mitt Romney. Or rather, at defeating Barack Obama. For Adelson, whose fortune is estimated at nearly $25 billion, that's just pocket change.

The high court in Montana upheld the state law banning corporate spending last year, noting that “unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history.” In February, the U.S. Supremes issued a "stay" in the case until they could review briefs from attorneys on both sides. That was what they did privately Thursday.

Meanwhile, 22 other states have joined Montana in asking the Supreme Court to uphold the state court's ruling against Virginia-based American Tradition Partnership, a right-wing advocacy group focusing its efforts against what it calls "environmental extremism."

"The federal law struck down in Citizens United applied only to elections for President and U.S. Congress," New York Attorney General Eric Schneiderman wrote on behalf of the states. "By contrast, Montana's law applies to a wide range of state and local offices, including judgeships and law enforcement positions such as sheriff and county prosecutor."
Critics of the Montana decision charge that the Montana justices showed “disrespect for the Constitution.”

It's not just some states that want the Supreme Court to hold a full hearing on the Montana ruling:

Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer (both dissenters in Citizens United) agreed in February that the court should temporarily block the Montana decision from going into effect. The “stay” was necessary “because lower courts are bound to follow this court’s decisions,” Ginsburg said.

But she also quoted a key passage of Citizens United and wrote, “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, make it exceedingly difficult to maintain that independent expenditures by corporations, ‘do not give rise to corruption or the appearance of corruption.’”

It's way beyond appearances. For one thing, the idea that Super PACs are really truly actually independent of the campaigns of candidates they support is something even those who just fell off a turnip truck can't possibly believe. Politicians may not be purchased quite so easily and openly as they were 100 years ago when Montana decided it had to act, but the differences between then and now have narrowed considerably since Citizens United was decided. Even half a step back on that ruling would be an improvement.

Originally posted to Meteor Blades on Thu Jun 14, 2012 at 02:42 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Alternative: (10+ / 0-)

    get the money back from the people who stole it and render Citizens United irrelevant.  Adelson, a two bit thug, has 20 billion dollars.  Really.  

    Just a thought.

    “I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” - Harriet Tubman

    by Publius2008 on Thu Jun 14, 2012 at 03:05:54 PM PDT

  •  Couldn't the Montana Supremes? (14+ / 0-)

    Have decided on the basis of the Montana Constitution, thereby deprivng SCOTUS of jurisdiction?  My recollection is that either Brennan or Marshall, or both, recommended this to state supreme courts after they were unhappy with some of the decisions of the Warren Burger court, decisions that today look more than reasonable and more than moderate.

    I suspect the law was triggered as pushback against Senator William Clark who purchased his United States Senate seat back in the days before the 17th amendment, when state legislatures selected Senators, by bribing a majority of the state legislators.  In defense, Clark said, "I never bought a man who wasn't for sale."

    "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

    by Navy Vet Terp on Thu Jun 14, 2012 at 03:06:33 PM PDT

    •  You are right about Senator Clark (14+ / 0-)

      The Montana law was in response to the fraudulent election of William A. Clark to the Senate, after he bribed most of the legislators.  The Seventeenth Amendment was also passed largely in response to this and other abuses, although direct election had been under discussion for nearly a century.

      That said, the Montana law is in conflict with the Citizens United decision, at least as it might apply to elections for the Senate and House of Representatives.  Purelu state and local elections might not be affected by this conflict, but it's hard to see how money donated to a PAC or a party can't cross over into local races.

      If the republicans on the Supreme Court had a shred of intellectual honesty, they would uphold the Montana law on the basis of States Rights.  Unfortunately, this principle gets invoked or ignored only to further the Republican party priorities.

      The Scout Law (trustworthy, loyal, helpful...) is a GREAT liberal manifesto.

      by DaytonMike on Thu Jun 14, 2012 at 03:19:06 PM PDT

      [ Parent ]

    •  Gov. Schweitzer also talks about Clark... (13+ / 0-) the Op-Ed of his I linked in my post.

      Don't tell me what you believe, show me what you do and I will tell you what you believe.

      by Meteor Blades on Thu Jun 14, 2012 at 03:27:44 PM PDT

      [ Parent ]

      •  In the Montana Capitol building... (16+ / 0-)

        ...there are two plaques located within feet of one another.  One memorializes Senator Clark as an early Montana patriot and citizen, entrepreneur and finally, two-term Montana Senator.  The other is to the editor of the Anaconda newspaper, who found evidence of massive corruption and bribery by William A, Clark in an earlier election that decided whether the state capitol would be in Anaconda (the home town of Clark's chief rival, Marcus Daly) or in Helena.  While the two plaques are located next to each other, they are on two sides of a projecting corner into the Rotunda, so that the bas-relief sculptures of the two men can't see each other.  You can only see both plaques by standing out in the Rotunda, looking back at the projecting corner.

        Later, both Marcus Daly and William A, Clark sold their copper interests and other land holdings to what became Anaconda Copper Company, initially part of the Standard Oil trust.  The prohibition on corporate money in Montana elections passed just in time.

        The Scout Law (trustworthy, loyal, helpful...) is a GREAT liberal manifesto.

        by DaytonMike on Thu Jun 14, 2012 at 03:50:52 PM PDT

        [ Parent ]

        •  Hmmm, Never Noticed (0+ / 0-)

          In the Rotunda itself, three men who brought the corporations to their knees are memorialized.  Most important is Thomas J. Walsh -- the man who started the People's Power League and put a set of initiatives on the ballot.  One initiative was the Corrupt Practices Act of 1912.

          Another initiative was a straw poll to send Walsh to Washington as Montana's Senator.  The entire country benefited when Senator T.J. Walsh uncovered and assured prosecution of the corrupt officials responsible for the Tea Pot Dome Scandal.  

          He hated corruption no matter where he found it.

    •  no. (6+ / 0-)

      the right to make independent expenditures per citizens united is a federal, constitutional right that no state can abrogate.

    •  Doesn't work that way (6+ / 0-)

      State courts have found that wording in the state constitution that is identical to wording in the U.S. Constitution guarantees broader rights than the Supreme court has found in the federal language, but the states - rightly - can't find the rights of their citizens more narrowly constrained than those guaranteed to all citizens of all states.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Thu Jun 14, 2012 at 03:31:30 PM PDT

      [ Parent ]

  •  There was a great letter (1+ / 0-)
    Recommended by:

    On June 5th, I think it was the Ny Times, from the Governor of Montana. It also had a link to

    when I did it up I'll link the letter. Really well done.

    Luminous beings are we, not this crude matter. ~ Yoda Political Compass: -8.50, -6.46

    by Cinnamon on Thu Jun 14, 2012 at 03:12:10 PM PDT

  •  I think the SCOTUS is well aware that (21+ / 0-)

    Citizens United is universally considered to be one of the all time worst decisions that ever came down the pike and one that will cement their place in history and not in a good way.

    It will be very interesting to see if they take this opportunity to walk back some of it. I honestly don't expect that.

    I think it will be "in for a penny, in for a pound" thinking and justification.  If they do try to limit the impact of their God-awful decision, I'll really enjoy watching their pretzel contortions as to why corporations buying elections with "free speech" dollars is fine at the Federal level but not fine at the state level.

    In my opinion, Scalia, Roberts and Alito probably don't give a hoot about how history views them.

    I do believe Justice Roberts is used to being well-thought of and has some vanity that is hurt over the disgust this decision has inspired, particularly since many now know how he had to consciously expand the reach of what could have been a  still horrible yet very narrowly applied decision.


    “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 Thu Jun 14, 2012 at 03:17:01 PM PDT

  •  the only interesting question (4+ / 0-)
    Recommended by:
    VClib, coffeetalk, pico, oceanview

    is whether any of the (D) justices will change sides on the basis of stare decisis.

  •  Soros Buffett SuperPac (3+ / 0-)
    Recommended by:
    MKDAWUSS, Hey338Too, northerntier

    As I believe someone posted on DK a week or so ago, if Warren Buffett and George Soros announced a SuperPac of their own, SCOTUS would overturn Citizens United in a week.

    "Well Clarice, have the lambs stopped screaming?"

    by buffie on Thu Jun 14, 2012 at 03:33:41 PM PDT

    •  buffie - no they wouldn't (4+ / 0-)

      First, they would need a case on point. In addition, I think that the SCOTUS is confident that over time CU favors the GOP and I don't think that a few election cycles, or a big liberal SuperPAC, would make any difference. Plus we all know that Buffett, Gates, and the Google and Facebook co-founders, aren't going to make eight figure contributions to SuperPACs. They don't want to be so overtly political.

      "let's talk about that"

      by VClib on Thu Jun 14, 2012 at 04:20:10 PM PDT

      [ Parent ]

  •  Since a corporation is an abstract status (3+ / 0-)
    Recommended by:
    Gooserock, johnny wurster, Odysseus

    entirely created by state law, I am still trying to figure out how it is that the Federal Constitution can determine what the rights and powers of this state created abstract entity are. Under the SCOTUS theory, no state could create a corporation without such rights, but it apparently also could not fail to create corporations, since they are 'people' .

    •  I Think the Freedom Is of Speech More than Speakrs (2+ / 0-)
      Recommended by:
      Clem Yeobright, VClib

      Bearing arms, peaceably assembling and others are rights or freedoms stated as being "of the people." But the 1st Amendment describes freedom simply as being "of speech" not of a speaker, not specifying a speaker. Both press and religion are institutions not people, press is usually business and business activity.

      I'm not sure the speaker is important is it?

      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 Thu Jun 14, 2012 at 03:57:48 PM PDT

      [ Parent ]

      •  That's precisely the basis for the ruling. (3+ / 0-)
        Recommended by:
        Clem Yeobright, coffeetalk, vcmvo2

        Its effect is to give corporations rights, of course, but the idea that the SCOTUS ruled that corporations are people and therefore have free speech rights is incorrect. They ruled that speech itself is free, without regard to speaker.

        Formerly known as Jyrinx.

        “If I can't dance to it, it's not my revolution.” ― Emma Goldman

        by Code Monkey on Thu Jun 14, 2012 at 04:22:57 PM PDT

        [ Parent ]

        •  So don't think of those millions as coming from (0+ / 0-)

          Sheldon Adelson, et al, think of them as existing purely in an ether of abstraction. If that makes you feel better.

          "Think of something to make the ridiculous look ridiculous." -- Molly Ivins

          by dumpster on Thu Jun 14, 2012 at 04:54:37 PM PDT

          [ Parent ]

        •  Code M - I agree in part (2+ / 0-)
          Recommended by:
          JPax, harrije

          CU said the rights were in the speech, not the speaker. But CU also made a very clear distinction between "natural persons" and organizations of people such as clubs, unions, and corporations.  I am still puzzled why anyone thinks the in CU the SCOTUS ruled that corporations are people. They didn't.

          "let's talk about that"

          by VClib on Thu Jun 14, 2012 at 05:23:20 PM PDT

          [ Parent ]

          •  Mitt Romney said that "corporations are people..." (0+ / 0-)

            So, of course it's wrong. Par for him. :-)

            -We need Healthcare Reform... but i'm selfish, I Need Healthcare reform-

            by JPax on Thu Jun 14, 2012 at 05:32:23 PM PDT

            [ Parent ]

          •  The principle is much older than CU (2+ / 0-)
            Recommended by:
            Odysseus, vcmvo2

            And while I agree with you on the specifics of CU that you raise...

   far back as Santa Clara v. SPR, in the late 19th century, the SCOTUS was affirming that the legal term "person" applied to corporations in at least some instances.

            50 years later, Justice Black criticized this principle in one of his dissents -- that was at the height of the Lochner era, before the SCOTUS got spooked into finding room within the Commerce Clause for the New Deal to live and breathe.

            The issue of "corporate personhood" has gotten a lot of airtime and blogtime over the past few years (even before Citizens United) partly because corporations have gotten more legally belligerent in seeking 14th Amendment remedies to strike down various regulations.

            So while it is wrong to criticize CU on corporate personhood grounds, it is not correct to say that SCOTUS does not recognize corporate personhood. It's been on that bandwagon for 130 years and counting.

            sin and love and fear are just sounds that people who never sinned nor loved nor feared have for what they never had and cannot have until they forget the words

            by harrije on Thu Jun 14, 2012 at 06:25:45 PM PDT

            [ Parent ]

            •  harrije - I don't think we disagree (1+ / 0-)
              Recommended by:

              As I noted the Court has long ruled that corporations have some of the same rights of people, but not all the rights of "natural persons". I actually don't think there is much debate that corporations have to be able to hold title to real and personal property,  to sue and be sued, to be held to regulatory standards, to lobby, or be taxed just to name a few. The only real issue is how should corporations be limited regarding political speech and on that issue there is a wide variety of opinions.

              "let's talk about that"

              by VClib on Thu Jun 14, 2012 at 07:52:23 PM PDT

              [ Parent ]

      •  I'd say that in the First Amendment (0+ / 0-)

        Religion is both referred to as an institutional right and as an individual right using two different clauses, with establishment meaning an institution and exercise referring to individual liberty. Likewise, freedom of speech is for individuals and freedom of the press is an institution. Of course, it's confusing, so we should rewrite it to avoid ambiguity.

        I'd also say that the freedom being of "speech" might refer to one's ability to express oneself, whereas "to speak" would have referred to general talking. The implication being that one's talking or other noise-making can be regulated (e.g. falsle fire alarms, loud music) whereas one's ability to have their say cannot be violated.

        Of course, others may disagree.

        -We need Healthcare Reform... but i'm selfish, I Need Healthcare reform-

        by JPax on Thu Jun 14, 2012 at 05:06:07 PM PDT

        [ Parent ]

      •  Money is not speech. n/t (0+ / 0-)

        Being ignored is the difference between being a one percenter and an American.--sweeper

        by SouthernLiberalinMD on Fri Jun 15, 2012 at 08:09:34 AM PDT

        [ Parent ]

    •  Tongue in cheek (2+ / 0-)
      Recommended by:
      JPax, Odysseus

      If owning people is slavery, then a person cant own a corporation.....

      FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

      by Roger Fox on Thu Jun 14, 2012 at 04:01:37 PM PDT

      [ Parent ]

      •  not without due process... hey, there's an idea. (0+ / 0-)

        We just need to establish a due process for removing a corporation's right to political speech. Maybe it would work?

        -We need Healthcare Reform... but i'm selfish, I Need Healthcare reform-

        by JPax on Thu Jun 14, 2012 at 05:27:17 PM PDT

        [ Parent ]

    •  in other contexts, the courts (1+ / 0-)
      Recommended by:

      have held that a generally available gvt benefit can't be conditioned on forfeiting a constitutional right.  on that theory, a state doesn't have to offer incorporation, but of it does it can't restrict the speech rights of the corp.

    •  Christy - a couple of points (3+ / 0-)
      Recommended by:
      Clem Yeobright, JPax, johnny wurster

      Many of the corporations doing business in Montana are "foreign" corporations meaning that the are not chartered as Montana corporations, but other states like Delaware or even outside the US.

      The SCOTUS has never ruled that corporations are people. What they have stated, going back more than 100 years, is that corporations have some of the same rights as people.

      "let's talk about that"

      by VClib on Thu Jun 14, 2012 at 04:15:24 PM PDT

      [ Parent ]

      •  Being a 'foreign corporation', that is, one whose (0+ / 0-)

        principal incorporation is not in the state at issue, does not mean that a corporate regulation in state X would not apply, since the right to a corporation to function in a state in which it is not incorporated is a form of license, a permission, and where such permission has the same limits as those of domestic corporations, it is not being discriminated against.

        As to foreign corporations which are not incorporated anywhere in the US, they are still IIRC forbidden to participate or dump money into US elections, entirely. That's why everyone is yelling about Sheldon Adelson this morning, with the money coming from his foreign businesses, at least supposedly so.

        As it is, the problem of 'foreign' corporations,  incorporated in one US state, is one which needs addressing, as what happens is that Delaware or South Dakota competes in the looseness of regulation in exchange for the fees, and then the idea is that the corporation can do in states which otherwise forbid it, whatever its home state allows. That's why IIRC all the credit card companies are trying to be functioning in SD where their limits on interest and the usury laws are so lax, and so much is so lax in Delaware, intentionally.

        There is also the issue that if a state can exclude a class of persons from the franchise, voting, something no corporaiton can do, and no felon can do, what is the real problem with determining that a class other than felons cannot participate in the legal system, or of saying that he or she who cannot vote cannot be involved in the system of voting and related campaigning.

        Of course, the part of this idea I like is changing the way corporations and the criminal laws interact, such as barring a corporation from functioning as one for a finite time for felony convictions, rather than endlessly limiting them to fines which just become costs of doing business while organic people get to go to jail, be subject to probation restrictions and so forth.

    •  Because of the First Amendment (3+ / 0-)
      Recommended by:
      VClib, Fire bad tree pretty, WillR

      it is not a right granted to people.  The SCOTUS in CU did NOT hold, or even insinuate, that corporations were "persons."  In fact, the opinion specifically says corporations are not "persons," but are associations of persons -- which they are.  (The notion that some have that CU said "corporations are people" is just wrong.)

      The language of the First Amendment indicates that it is not a right  granted to "persons." (Other parts of the Constitution, like the Fifth Amendment, are limited to "persons.")  The First Amendment is a limit on the power of Congress. "Congress shall make no law . . .  abridging the freedom of speech."  The majority essentially held that this restriction on Congress was the same regardless of whether individual persons, or associations of persons (like clubs, unions, partnerships, corporations, etc.) paid for the speech.  

      •  But time, place & manner of speech (0+ / 0-)

        can be restricted. When it comes to OWS or any other protests, we hear repeatedly that it's established law that restrictions can be placed on the manner of speech. Isn't paid political advertising a manner of speech like a rally on Wall Street? I don't see why the amount of cash funneled by corporations into political advertising cannot be subject to restriction in the same way political protest has been.

        48forEastAfrica - Donate to Oxfam "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

        by Siri on Thu Jun 14, 2012 at 05:28:56 PM PDT

        [ Parent ]

        •  T/P/M restrictions also have to be (3+ / 0-)
          Recommended by:
          VClib, coffeetalk, WillR

          content neutral.  no one can shout down a city council, regardless of the content of the shouting.  campaign finance - no political speech - is the very opposite of content neutral.

        •  Siri - time, place, and manner restrictions are (2+ / 0-)
          Recommended by:
          coffeetalk, Fire bad tree pretty

          due to the conflict between the people protesting and the rights of the people not protesting. When a group wants to use a public space to protest they are interfering with the rights of other citizens who want to use that same space and do not want to be restricted in their access by the protestors.  By setting up rules, which are content neutral, the city, county, and state governments try and balance the rights of the protestors and non-protestors. This has nothing to do with being allowed to buy TV or radio time. If an individual or group purchases TV time it does not in any way interfere with another group of citizens so there is no need to balance the rights of two groups who want to occupy the same space at the same time.  

          "let's talk about that"

          by VClib on Thu Jun 14, 2012 at 05:39:32 PM PDT

          [ Parent ]

          •  Technically true, but a bit too close to... (3+ / 0-)
            Recommended by:
            birdboy2000, VClib, vcmvo2

            ...Anatole France's famous dictum about the law in its "equality" forbidding both the poor and the rich from sleeping under bridges.

            A good compromise would be a limit (say, per capita) on election spending. But, of course, the Supreme Court in its infinite wisdom has chosen to block that approach.

            Thus, we have an inherently unequal system with a supposedly neutral law regarding funding. It may be neutral in wording and appearance and even in intent. But in practice, as anybody but the most gullible knows, it is not neutral.

            That doesn't mean the candidate will always win with the most money behind her or him (either directly from the campaign or from outside the campaign that CU has freed). But money DOES matter and as the dollars pile up ever higher, the right wing will gain an ever-increasing advantage. That is the real-world, on-the-ground meaning of Citizens United . Its impact will ultimately lead to a High Court (and lower ones, too) brimful of Clarence Thomases, whose objection in the case was that the contributors must disclose what they give. A Court of Thomases, a Congress of Jim Inhofes, a White House of Bushes, Romneys and worse.

            Don't tell me what you believe, show me what you do and I will tell you what you believe.

            by Meteor Blades on Thu Jun 14, 2012 at 06:20:10 PM PDT

            [ Parent ]

            •  The closest we've come to that (1+ / 0-)
              Recommended by:

              were the rules for public financing of Presidential Campaigns, which were designed to give candidates an incentive to voluntarily agree to limits that were roughly the same for each candidate.  

              And President Obama essentially assured that those were obsolete when he opted out of public financing in 2008, showing that he could raise more money on his own.  

        •  Absolutely true about time, place and manner (2+ / 0-)
          Recommended by:
          Fire bad tree pretty, Siri

          There are two caveats, though.  

          First, it has to be content-neutral.  That means, you are treated the same == i.e., the restrictions on the time, the place, and the manner you use to speak have to be applied regardless of WHAT you want to say.   Someone who wants to say, "I think we should all salute the American flag" has to be treated the same as someone who wants to say, "I think we should vote all of Congress out of office."  Also, you must have a reasonable alternative for getting speech out.  For example, the government can tell you, "you can't assemble here to speak, but you CAN assemble nearby," or "you can't speak with a bullhorn at 3:00 a.m., but you can speak out at a lower volume in the middle of the day."  The OWS thing was a time, place, and manner restriction -- you couldn't assemble to speak in such and such a space at night, but you could assemble to speak during the day, regardless of the CONTENT of what you wanted to say.  Or, you couldn't assemble in one space during the day (like on private property, or if you were blocking a street) but you could assemble in other alternatives during the day - like public squares or parks.   and that applied regardless of what you wanted to say.  

          Here, the ban on speech was specifically based on content -- you COULD have a corporation pay for a movie that said, "Everyone should go to vote, it's your patriotic duty," but you could not have a corporation pay for a movie that said, "Hilary Clinton is a bad candidate for President."  Congress cannot make laws abridging speech based on the CONTENT of the speech.  And there was no reasonable alternative for saying "Hilary Clinton is a bad candidate."  That content -- that particular speech -- was banned in all forms six weeks before an election, whether it was in a book, a movie, a commercial, whatever.  

          That's the difference.

          •  I get it but I don't like it (0+ / 0-)

            The reality of the situation is that the individuals protesting on the street do not have the financial resources to buy paid political advertising to get their counter-message out on the airwaves. So corporations are free to funnel as much money as they want to into advertising, completely unrestricted. The people, who's only voice is really on the streets because they can't afford that level of access, are subject to restriction. We're in an era where the best interests of the corporations are not aligned with the best interests of the citizens of this nation. Their financial resources are staggering making it seem like we're being steamrolled by an avalanche of cash.

            I do appreciate your explanations coffeetalk. I know we likely disagree on a most issues but I appreciate the time you put into thoroughly explaining your positions. If nothing else, it helps me focus my argument.

            48forEastAfrica - Donate to Oxfam "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

            by Siri on Thu Jun 14, 2012 at 06:36:56 PM PDT

            [ Parent ]

            •  I understand what you are saying (4+ / 0-)
              Recommended by:
              Siri, WillR, Leftie Gunner, johnny wurster

              it's essentially that people with money should not have an advantage in getting their speech heard.  The CU case was essentially a dispute based on the notion that people with money (pooling that money through associations like corporations) should be restricted from using that money to have their speech heard more than speech of others without so much money.  It seems to me that you are suggesting that government has a role in making sure that one speaker doesn't overpower other speakers, and that government has a role in providing "disadvantaged" (due to less money or any other cause) speakers equal access to the public, either by (1) limiting the speech of the more "advantaged" (rich?) speakers so fewer people hear it, or (2) subsidizing the speech of the less "advantaged" speakers, so more people hear it.

              However, let me suggest that the First Amendment has never, never, never been any attempt to assure that everyone would be equally heard, regardless of money.  That would require an approach -- i.e., government stepping in to assure that speech is balanced, regardless of money -- that is the antithesis of the approach taken by the First Amendment.  The First Amendment is not in any way a right to get your speech out, or that you can be heard.  The notion that government would step in to guarantee that you are heard, or that you can reach an audience, regardless of money, would be the clearest of First Amendment violations.  The First Amendment takes the exact opposite approach -- that government has no role in determining who can speak, who gets heard, and who doesn't get heard.  What you are suggesting is a reversal of the First Amendment -- that government regulate speech so as to provide some equal playing field to all views, regardless of money.

              By the way, I appreciate the cordial debate as well.  This kind of situation -- where people can cordially discuss agreements and disagreements -- what I enjoy.  

              •  But IIRC, organic peoples' contributions (0+ / 0-)

                are restricted as to amount in campaigns, but not those of inorganic persons. Why should the two be different?

                I guess one of the problems here is that the FEC is feckless in trying to determine what a direct participation in a campaign is, and the IRS can't enforce the nonpolitical restrictions in Sec. 501 c 4 and the like, so that as to those working the margins on those, there is an effective loophole which government declines to close. A problem of its own.

            •  also, the government can tell the citizens (0+ / 0-)

              they are "free" to protest out in the sticks in a cow pasture at 3 a.m. (time, place, and manner!) but not in the town square at noon.

              This is all a bullshit way of trying to silence the people, and should be legally undone.  We act these days like legal decisions cannot be reversed but have the status of the 10 commandments on tablets of stone.  Plessy v Ferguson was reversed, wasn't it? was that wrong?  I remember a legal system which could revisit and fix its own mistakes.

              Being ignored is the difference between being a one percenter and an American.--sweeper

              by SouthernLiberalinMD on Fri Jun 15, 2012 at 08:12:20 AM PDT

              [ Parent ]

    •  It's cocidered a legal fiction (0+ / 0-)

      And is used to describe effects of a law on an entity that doesn't really exist. Romney and corporations are a people too, notwithstanding .

      In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

      by vcmvo2 on Thu Jun 14, 2012 at 07:53:51 PM PDT

      [ Parent ]

    •  The status of the entity engaging in speech (2+ / 0-)
      Recommended by:
      johnny wurster, coffeetalk

      is irrelevant to the question, "given the text of the 1st Amendment, can Congress control that entity's political speech?"

      According to the majority, (and, I'd add, according to the actual words,) the answer to that question is "no."

      If Congress lacks the power to control political speech, then you never need to get to an analysis of what types of speech they can control, or what reasons are valid ones for them to do so. They just aren't allowed to do it.

      Consequences are also irrelevant to the analysis. "But it could really, really suck if they don't" isn't a counter argument to "they're not allowed to."

      This is a power that we denied to the government that we created. It is a fundamental limitation on our collective consent to be governed. American governments exist only by permission, and that permission has limits. This is one of them.


      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Thu Jun 14, 2012 at 09:02:19 PM PDT

      [ Parent ]

  •  If SCOTUS were anything but a political arm (1+ / 0-)
    Recommended by:

    of Fox News, maybe.

    But it's not.

  •  anything's possible with five whackjobs on the (3+ / 0-)
    Recommended by:
    Nailbanger, ferg, buffie

    Supreme Court, as we currently have.

  •  I'm not holding my breath or getting my hopes up (3+ / 0-)
    Recommended by:
    northerntier, glitterscale, buffie

    I'll most likely pass out and be let down...

  •  I think this is where the SCOTUS disagreed (5+ / 0-)

    with the Montana S. Ct.  From the diary:

    For one thing, the idea that Super PACs are really truly actually independent of the campaigns of candidates they support is something even those who just fell off a turnip truck can't possibly believe.
    Montana, as I read it, assumed that the presence of a lot of money automatically meant that the officials who benefited from that outside money were "corrupted" by it - in other words, they assumed that the outside group was coordinating with the candidate and that, essentially, the candidate had promised something in return for the outside expenditure.  

    The SCOTUS essentially said that, for something as drastic as restricting speech in contravention of the First Amendment ("Congress shall make no law . . . abridging the freedom of speech"), we aren't just going to assume that because somebody spends money supporting a candidate, that there's corruption -- meaning a payoff, a "quid pro quo" promise.  I think the SCOTUS' position is that you could pass laws against that quid pro quo, but you can't assume that because somebody is spending their own money supporting a candidate, the candidate has made a "quid pro quo" promise to get that support.  That's what the SCOTUS viewed as "corruption" -- a quid pro quo promise.    

    Unless Justice Kennedy has changed his mind (and he authored CU so I think that's unlikely) I don't see the SCOTUS changing that.

    •  Correct on all counts. nt (1+ / 0-)
      Recommended by:
      johnny wurster

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

      by pico on Thu Jun 14, 2012 at 05:02:56 PM PDT

      [ Parent ]

    •  This is from the Governor's letter (1+ / 0-)
      Recommended by:
      Fire bad tree pretty

      that's linked in the diary. By the way, he's a Republican.

      The effects of the court’s stay are already being felt here. The ink wasn’t even dry when corporate front groups started funneling lots of corporate cash into our legislative races. Many of the backers have remained anonymous by taking advantage of other loopholes in federal law.

      But it’s easy to figure out who they are: every industry that wants to change the laws so that more profit can be made and more citizens can be shortchanged.

      I know this because I’ve started receiving bills on my desk that have been ghostwritten by a host of industries looking to weaken state laws, including gold mining companies that want to overturn a state ban on the use of cyanide to mine gold, and developers who want to build condos right on the edge of our legendary trout streams.

      The effects were immediate and obvious. This wasn't based on any assumptions.

      48forEastAfrica - Donate to Oxfam "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

      by Siri on Thu Jun 14, 2012 at 05:11:00 PM PDT

      [ Parent ]

      •  I think that there are two definitions of (3+ / 0-)

        corruption here.  

        You apparently assume that people financially supporting people who are friendly to their cause (whatever that is) is corruption.  The SCOTUS does not agree.  They think that is part of the political system because there is nothing illegal about that.  And, of course, interest groups have for a long time provided legislators friendly to their cause with sample legislation -- ghostwriting, in the words of that letter.  It happens on the left (unions, trial lawyers) and it happens on the right (business).  Here in Louisiana, for example, there was a huge political fight on legislation regarding cleaning up old oilfield sites -- there were two competing bills, one written by the oil and gas industry and one written by the trial lawyers.  (The final bill was a compromise mish-mash of the two).  That's distasteful, of course, but not illegal.

        The SCOTUS does not consider that "corruption," because it's legal.  Nothing legally prevents any interest group from providing a legislator a draft or sample legislation - the legislator can introduce it as is as his own bill, or change parts of it and introduce it, or not introduce it.  Nothing illegal about that.  They basically held that you can't restrict speech because you think it results in legal activity you don't like.  The SCOTUS viewed "corruption" as something OUTSIDE the bounds of the law -- a direct payoff associated with a quid pro quo -- like paying a legislator $100,000 for a "no" vote on a specific bill (when he otherwise would have voted yes, for example).   In other words, corruption is stuff that is illegal, that you could go to jail for.  They said that you can't assume that financial support by a supporter automatically means corruption in the "illegal" sense.  It's that direct tie -- that quid pro quo agreement (often difficult to prove) -- that makes it corruption.  

        •  Thank you (0+ / 0-)

          for your comments, very illuminating. I tend to disagree with the justices though - I happen to think that there is a quid pro quo for giving money or else why give it?

          •  I think you are saying that it is reasonable to (0+ / 0-)

            assume that, if I pay $100,000 to run an ad saying "vote for  Joe Smith," that Joe Smith has consented to that and has promised me that, in exchange for my running that ad, he will vote a specific way on a specific bill -- an act that would clearly be criminal.  

            The SCOTUS wasn't willing to make that assumption that my spending $100,000 to run an ads supporting you necessarily meant you had committed a crime.

            •  Stupid activist SCOTUS wants to legislate (0+ / 0-)

              Why should they rule that x or y is a crime?
              Congress writes the laws not SCOTUS. Congress needs to be able to write laws regulating money in politics. Money has a corrupting, distorting influence on elections and public officials, to nobody's surprise.
              The individual has no free speech right to yell fire in a threater and no corporation has the right to contaminate the elections with unlimited, untracable money.

              These mentally deficient GOP justices should be removed.

            •  But that assumption is only part of the story (0+ / 0-)

              It's obviously true that organizations like the Campaign for Primary Accountability (attempting to defeat incumbents) are not trying for a quid pro quo.  It's far less clear that the Club For Growth has clean hands.

              And there's still a chicken-and-egg problem.  Emily's List stopped supporting pro-choice Republicans because they were ineffective within the party.  So is the Republican stance against abortion a cause or an effect of the fact that that's where the money is for them?

              -7.75 -4.67

              "Freedom's just another word for nothing left to lose."

              There are no Christians in foxholes.

              by Odysseus on Thu Jun 14, 2012 at 07:01:41 PM PDT

              [ Parent ]

              •  I understand what you are saying (1+ / 0-)
                Recommended by:

                and I can see the argument that you think it looks bad sometimes.  And certainly, I think, the SCOTUS acknowledged that sometimes people think it looks bad.  

                I think their approach was that restricting speech -- especially some kind of prior restraint of POLITICAL speech, the most protected kind of speech, is a very serious thing.  And Congress can't do that without real evidence of actual lawbreaking.  If there's any standard of what that needs to be,  I think they are suggesting something like the evidence a prosecutor might use to bring a corruption case.  The felt that the fact that money can be part of corruption -- criminality -- was not a basis for assuming that, whenever money is spent, that necessarily means a crime might be committed.  

                In other words, I would think you can limit "speech" if it's part of a crime.   You cannot limit speech if you don't have actual evidence of a crime.  And you cannot limit speech because it is possible for it to be used as part of a crime.   And the part about independent expenditures not equaling corruption was saying that the fact that I run an ad supporting you is not evidence that you committed a crime.  

                •  I don't just think it looks bad. (0+ / 0-)

                  I think it absolutely is bad.  But proving it, as you say, is a whole different story.  All of the elements of a crime of method, motive, and opportunity are present.  But taking that final step and proving that all three are present simultaneously is a high bar.

                  I would prefer to drain that swamp.

                  -7.75 -4.67

                  "Freedom's just another word for nothing left to lose."

                  There are no Christians in foxholes.

                  by Odysseus on Thu Jun 14, 2012 at 07:40:31 PM PDT

                  [ Parent ]

            •  I get what you are saying about criminality (0+ / 0-)

              but if physical talking-type speech can get restricted - time, place, manner, for all sorts of reasons why can't money-as-speech be restricted for reasons other than criminality or a crime actually having to be committed? For example, don't we as citizens or a country have an interest in ensuring that all of us have more or less equal/fair access to our politicians in the money/speech way and therefore that interest might say it's ok to restrict money/speech to X amount of dollars per donor or per candidate. Or, why cna't we recognise that human nature being what it is, and the nature of these crimes being so difficult to prove, it's in teh public interest that there be some restriction on money-speech? The current legislation has led to ridiculous things like superpacs using the candidate in ads but still passing the independence and non-coordination tests. There's something wrong with that.

      •  Gov. Brian Schweitzer has NEVER been... (5+ / 0-)

        ...a Republican.

        Don't tell me what you believe, show me what you do and I will tell you what you believe.

        by Meteor Blades on Thu Jun 14, 2012 at 05:52:29 PM PDT

        [ Parent ]

  •  They'll take the case (0+ / 0-)

    and make them tweak it to cause the words Citizen's United fall from the vernacular. It will be a similar deal but with a less frowned upon title.

  •  The Supreme Court could overturn it on (2+ / 0-)
    Recommended by:
    judyms9, SouthernLiberalinMD

    Monday if they wanted to look how fast the Court moved to make Bush President,that shows they can move at any speed they want.

  •  brilliant caption! n/t (3+ / 0-)
    Recommended by:
    hester, KayCeSF, Fire bad tree pretty

    Panelist, Netroots Nation 2012, "Coal and the Grassroots Fight for Environmental Justice." @RL_Miller

    by RLMiller on Thu Jun 14, 2012 at 04:38:24 PM PDT

  •  CU sets up a situation in which multiple (1+ / 0-)
    Recommended by:

    Manchurian Candidates can win elections while being financed by unfriendly nations abroad.  The seeds of our destruction have been planted.  It is the way to end around our military.

    Romney went to France instead of serving in our military, got rich chop-shopping US businesses and eliminating US jobs, off-shored his money in the Cayman Islands, and now tells us to "Believe in America."

    by judyms9 on Thu Jun 14, 2012 at 04:43:34 PM PDT

  •  Tenth amendment (1+ / 0-)
    Recommended by:

    tenth amendment, tenth amendment.... wait what we like this judicial activism?  SOCIALISTS!!!

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