Citizens United v. Federal Election Commission

[Ian Perez]

So yesterday's Colbert Report dedicated two segments to this case, and I'd be lying if I said that their angle did not scare the crap out of me. The show's argument was that if the Supreme Court ruled in favor of Citizen's United (which seemed likely), it would rule that laws limiting campaign contributions from corporations would infringe on their free speech, ergo, corporations can give unlimited amounts of money to campaigns.

No I'm no legal scholar, and I'm not really informed of all the details of the case. Could somebody please tell me if said fears are warranted? Can the case really destroy campaign reform as we know it? (Please say no please say no please say no...)

Thank you.

Relevant links:

http://www.colbertnation.com/the-co...ember-15-2009/the-word---let-freedom-ka-ching

http://www.colbertnation.com/the-co...-federal-election-commission---jeffrey-toobin

http://www.nytimes.com/2009/08/30/us/30scotus.html?pagewanted=1&_r=1

http://media.www.hlrecord.org/media...n.Finance.Debate.Is.Precedent.P-3767996.shtml

 

[Ziggurat]

No I'm no legal scholar, and I'm not really informed of all the details of the case. Could somebody please tell me if said fears are warranted? Can the case really destroy campaign reform as we know it? (Please say no please say no please say no...)

I'm still trying to work on why you're so scared of a "yes" answer. Do you actually think campaign finance reform has worked?

 

[Brown]

If you want to see what the current pressing issues are, read the transcript of the oral argument to the Supreme Court: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205[Reargued].pdf

A few teaser excerpts:

JUSTICE GINSBURG: Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual? A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?
MR. [THEODORE] OLSON [representing Citizens United]: What the Court has said in the First Amendment context, New York Times v. Sullivan, Rose Jean v. Associated Press, and over and over again, is that corporations are persons entitled to protection under the First Amendment.
JUSTICE GINSBURG: Would that include today's mega-corporations, where many of the investors may be foreign individuals or entities?
MR. OLSON: The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.

Justice Sotomayor was heard in her first argued case:

JUSTICE SOTOMAYOR: Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case?

Incidentally, her key questions--pertaining to whether the record supported the existence of "a patchwork of regulatory and jurisprudential guidelines that are so unclear"--never really got answered.

There was this unintentionally humorous exchange:

JUSTICE STEVENS: (M)ay I ask one question you can answer on rebuttal? No one has commented on the National Rifle Association's amicus brief. None of the -- none of the litigants have. That's in response to Justice Sotomayor's thought that there are narrow ways of resolving the problem before us. On rebuttal, will you tell us what your view on their solution to this problem is?
MR. OLSON: I will, Justice Stevens.
CHIEF JUSTICE ROBERTS: Why don't you tell us now. We will give you time for rebuttal.
(Laughter.)
JUSTICE SCALIA: Don't keep us in suspense.
(Laughter.)

Olson talked a bit until it became quite clear that he did not know what the NRA's position was, so he said:

MR. OLSON: I would like to take advantage of Justice Stevens' offer and respond to that during the rebuttal, Mr. Chief Justice.
(Laughter.)

Solicitor General Elena Kagan, arguing for the Federal Election Commission, thought she knew what the NRA's position was, but Justice Stevens wasn't satisfied and so he eventually had to explain what he meant.

JUSTICE STEVENS: But that is not what the National Rifle Association argues or what Snowe-Jeffords covers. It covers ads that are financed exclusively by individuals even though they are sponsored by a corporation.
GENERAL KAGAN: Yes, that's exactly right. What you are suggesting, Justice Stevens, is essentially stripping the Wellstone amendment from the --
JUSTICE STEVENS: Correct and treating the Snowe-Jeffords amendment as being the correct test. And nobody has explained why that wouldn't be a proper solution, not nearly as drastic as -- as being argued here.

In response to an argument that Congress felt that huge expenditures could corrupt the Federal system, Justice Scalia offered this strange observation:

JUSTICE SCALIA: Congress has a self-interest. I mean, we -- we are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so.

The Solicitor General apparently thought the remark was odd, too:

GENERAL KAGAN: I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.

 

[Praktik]

Essential viewing on this would be this Moyers segment, with the lawyer arguing against Citizens United and an ally of Citizens united.

 

[Bob Klase]

Justice Scalia offered this strange observation:The Solicitor General apparently thought the remark was odd, too:

Quote:
GENERAL KAGAN: I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.

Maybe not. While most corporate and union money go to incumbents, if this "self-denying thing" stands then it will likely continue to go overwhelmingly to incumbents but there will be even more of it going to them.

 

[Cleon]

I'm still trying to work on why you're so scared of a "yes" answer. Do you actually think campaign finance reform has worked?

Well, it has, in a way; it's just worked the opposite of the way it was sold. Rather than make the political process more open and transparent, it's served to make sure that the money trail more difficult to follow.

Admittedly, that's a rather cynical view of the situation.

 

[leftysergeant]

I'm still trying to work on why you're so scared of a "yes" answer. Do you actually think campaign finance reform has worked?

Because corporations should never be allowed to claim personhood. Corporate personhood gives them actually MORE power over other persons based on money and that is just unacceptable in a free nation.

There is actually the possibility that the concept was based on a clerical error or deliberate fraud by a law clerk over a century ago. Nothing I can see in the constitutuion gives them human rights other than as relates to contracts and land ownership.

 

[Ian Perez]

I'm still trying to work on why you're so scared of a "yes" answer. Do you actually think campaign finance reform has worked?

I'll admit that the "campaign reform" bit was just me parroting a discussion from another message board; I'll admit I know next to nothing about it or how successful it has been. Even so, my gut tells me that the deregulation suggested in the case could scarcely be better--I just don't like the idea of corporations having this sort of free speech. Logical? Not at all--but that's why I posted in the first place.

If you want to see what the current pressing issues are, read the transcript of the oral argument to the Supreme Court: http://www.supremecourtus.gov/oral_a...;Reargued].pdf

Thank you! I'll take a while--my computer time is rather limited these days--but I'll get on it.

 

[FlamingMoe]

Nothing I can see in the constitutuion gives them human rights other than as relates to contracts and land ownership.

Well there is the piddly little detail that corporations are comprised of groups of people, and groups of people do not give up any rights they held prior to grouping together simply by virtue of doing so. Ergo, the group still has the right to free speech.

Go go Citizens United!

 

[FlamingMoe]

If you want to see what the current pressing issues are, read the transcript of the oral argument to the Supreme Court: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205[Reargued].pdf

A few teaser excerpts:

Out of curiosity, did the government's lawyer argue again that they had the authority under campaign law to effectively ban books or did they decide against making that claim this time around?

 

[Praktik]

Out of curiosity, did the government's lawyer argue again that they had the authority under campaign law to effectively ban books or did they decide against making that claim this time around?

THat is such a red herring:

The Solicitor General was answering what Floyd correctly says was a hypothetical. That's where you are in law school, and they say, "Well, just supposed the facts weren't as they are, but they were something else entirely." The reality is there has never been a case in all the years we have had these laws prohibiting corporate spending prosecuting anyone for publishing a book.

The law itself has an exemption for commercial speech. So, if somebody is engaged in selling a book, it's completely exempt anyway. There's an exemption for press activity. So, this goes to my point, what we're doing here -- and I think this is why it's dangerous -- is we're essentially having a high level law school seminar on the Supreme Court about hypothetical, constitutional questions. But the potential result of that, because it is the Supreme Court, is they could end up changing the real world, when the real world actually functions without any book banning at all.​

 

[Dancing David]

Because corporations should never be allowed to claim personhood. Corporate personhood gives them actually MORE power over other persons based on money and that is just unacceptable in a free nation.

There is actually the possibility that the concept was based on a clerical error or deliberate fraud by a law clerk over a century ago. Nothing I can see in the constitutuion gives them human rights other than as relates to contracts and land ownership.

Now this is one of the issues and one that the court will hash out for the next couple of centuries...

 

[Dancing David]

Out of curiosity, did the government's lawyer argue again that they had the authority under campaign law to effectively ban books or did they decide against making that claim this time around?

The lower court ruled that a movie was subject to the restrictions of McCain-Feingold as it could have been made with PAC money and released.

 

[Dancing David]

Well there is the piddly little detail that corporations are comprised of groups of people, and groups of people do not give up any rights they held prior to grouping together simply by virtue of doing so. Ergo, the group still has the right to free speech.

Go go Citizens United!

The individuals have that right, yes, and McCain-Feingold sets limits on groups.

 

[FlamingMoe]

THat is such a red herring:

It's really not. Read the transcript from the first oral argument. The government's attorney explicity stated (page 28) the Constitution does not prevent the government from banning the advertisement or sale of a book published by an advocacy group that contains "the functional equivalent of express advocacy" within the time limits set by the McCain-Feingold Muzzle. Period. And if you're a corporation that wants to publish that book, you have to do it through your PAC, which means people have to donate money to you in order to cover the costs of what is your normal business operation.

 

[FlamingMoe]

The lower court ruled that a movie was subject to the restrictions of McCain-Feingold as it could have been made with PAC money and released.

And the government argued on appeal that the Constitution allows banning advocacy books for certain periods of time. I don't know any definition of "freedom of the press" that squares with that notion.

The individuals have that right, yes, and McCain-Feingold sets limits on groups.

And how does pooling resources with like-minded individuals automatically put you in a "fewer rights" category?

 

[INRM]

This strikes me as a dangerous idea...

It would give big business too much influence as I see it. This country's representatives are supposed to be picked by the people not by the few the powerful and the influential.

That is antithetical to democratic principles

 

[SezMe]

Well there is the piddly little detail that corporations are comprised of groups of people, and groups of people do not give up any rights they held prior to grouping together simply by virtue of doing so. Ergo, the group still has the right to free speech.

Go go Citizens United!

No, corporations are NOT comprised of groups of people. Corporations are entities chartered by one of the States. This new entity may well hire lots of people but that fact does not transfer the rights of those individuals to the completely different entity that gave them a job.

 

[SezMe]

I'm still trying to work on why you're so scared of a "yes" answer. Do you actually think campaign finance reform has worked?

Depends on the definition of "work".

But seriously, not very well. I won't argue that with you, Zig. But they have had a least some modicum of success at reigning in the excesses of the Gilded Age. If those small successes are rolled back, I am scared of the consequences.

In addition, remember Roberts' claim during his hearings about just being an umpire? How he was against judicial activism? Remember the wailing (actually from both sides of the aisle) about the importance of stare decisis? If the court uses this case to overturn a century of established law, it would be the biggest case of judicial activism in decades. Especially, especially since this is not a good case for a sweeping review of campaign finance law and since it is amenable to a vary narrow decision. The court could have made such a narrow decision last term but it was Roberts who told the sharks to go back and take a broader look.

This is so egregious that I wonder if Roberts could be impeached for lying to congress during his hearings.



Ok, ok, Zig, that last is a bit of an exaggeration. But only a bit.

 

[Praktik]

It's really not. Read the transcript from the first oral argument. The government's attorney explicity stated (page 28) the Constitution does not prevent the government from banning the advertisement or sale of a book published by an advocacy group that contains "the functional equivalent of express advocacy" within the time limits set by the McCain-Feingold Muzzle. Period. And if you're a corporation that wants to publish that book, you have to do it through your PAC, which means people have to donate money to you in order to cover the costs of what is your normal business operation.

Except there's a specific exemption for commercial speech, so it doesn't apply. Follow from the start of the book topic.

The lawyer mentions the exemption is in the statute. The justice says "I'm not interested in what's in the statute".

Placing it in the realm of the hypothetical. Stewart then goes on to mention that first amendment rights would likely supercede the concerns of a government looking to ban a book under the law.

Later, Stewart reminds the justice, "to leave to one side the question of.."

Roberts interrupts with a "right, right"

And Stewart continues, "the possible media exemption"

Reaffirming that the discussion is still a hypothetical.

No one has been pursued for publishing a book under this law, and none ever will.

Further, the worst that they're talking about in this hypothetical, is banning the funding of a book by corporate treasury funds. THey could use PAC funds. After all, to even be considered under this law the book needs to be "express advocacy" for a certain candidate.

And that is a principle that makes sense: do all the shareholders agree with the use of funds to advocate for a particular candidate in an election?

All the employees?