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Thread: Fascism coming to a court near you: Corporate Personhood and the Roberts' Court

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    Default Fascism coming to a court near you: Corporate Personhood and the Roberts' Court

    The Supreme Court will be hearing this case this month:
    Published on Monday, July 6, 2009 by CommonDreams.org
    Fascism Coming to a Court Near You

    Corporate Personhood and the Roberts' Court

    by Thom Hartmann

    As the 1983 American Heritage Dictionary noted, fascism is: "A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."

    Get ready.

    Last year a right-wing group put together a 90-minute hit-job on Hillary Clinton, and wanted to run it on TV stations in strategic states. The Federal Election Commission ruled that the "documentary" was actually a "campaign ad" and thus fell under the restrictions on campaign spending of McCain-Feingold, and thus stopped it from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Teddy Roosevelt pushed through the Tillman Act.)

    Citizens United, the right-wing group, sued the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson as their lead lawyer.

    This new case, Citizens United v. Federal Election Commission, presents the best opportunity for the Roberts Court to use its five vote majority to totally re-write the face of politics in America, rolling us back to the pre-1907 era of the Robber Barons.

    As Jeffrey Toobin wrote in The New Yorker ("No More Mr. Nice Guy"): "In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

    And the only way the modern Republican Party can recover their power over the next decade is to immediately clear away all impediments to unrestrained corporate participation in electoral politics. If a corporation likes a politician, they can make sure he or she is elected every time; if they become upset with a politician, they can carpet-bomb her district with a few million dollars worth of ads and politically destroy her.

    And it looks like that's exactly what the Roberts Court is planning. In the Citizens United case, they asked for it to be re-argued in September of this year, going all the way back to the 1980s and re-examining the rationales for Congress to have any power to regulate corporate "free speech."

    As Robert Barnes wrote in The Washington Post on June 30, 2009, "Citizens United's attorney, former solicitor general Theodore B. Olson, had told the court that it should use the case to overturn the corporate spending ban the court recognized in Austin v. Michigan Chamber of Commerce, as well as its decision in 2003 to uphold McCain-Feingold as constitutional."

    The setup for this came in June of 2007, in the case of the Federal Election Commission v. Wisconsin Right To Life, in which the Roberts Court ruled that the FEC couldn't prevent WRTL from running ads just because they were a corporation.

    "A Moroccan cartoonist," Justice Scalia opened his opinion with his usual dramatic flair, "once defended his criticism of the Moroccan monarch (lčse majesté being a serious crime in Morocco) as follows: ‘I'm not a revolutionary, I'm just defending freedom of speech. I never said we had to change the king-no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?'"

    "Well," Scalia wrote, "in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations)... That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)."

    The idea of Congress passing laws that limited corporate "free speech" was clearly horrifying to Scalia. He went after the 1990 Austin v. Michigan Chamber of Commerce case, in which the MCC was limited in their "free speech" in a political campaign because they were a corporation.

    "This (Austin) was the only pre-McConnell case in which this Court had ever permitted the Government to restrict political speech based on the corporate identity of the speaker," he complained. "Austin upheld state restrictions on corporate independent expenditures," and, God forbid, "The statute had been modeled after the federal statute that BCRA §203 amended..."

    The Austin case, Scalia concluded his opinion with four others nodding, "was a significant departure from ancient First Amendment principles. In my view, it was wrongly decided."

    Scalia also quoted at length from opinions in the Grosjean v. American Press Co case, "holding that corporations are guaranteed the ‘freedom of speech and of the press, safeguarded by the due process of law clause of the Fourteenth Amendment,'" and from the 1986 Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal. case: "The identity of the speaker is not decisive in determining whether speech is protected"; "[c]orporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

    The bottom line, for Scalia, was that, "The principle that such advocacy is ‘at the heart of the First Amendment's protection' and is ‘indispensable to decision making in a democracy' is ‘no less true because the speech comes from a corporation rather than an individual."

    Continuing to quote from a plurality opinion in Pacific Gas, Scalia "rejected the arguments that corporate participation ‘would exert an undue influence on the outcome of a referendum vote'; that corporations would ‘drown out other points of view' and ‘destroy the confidence of the people in the democratic process..."

    He even quoted an opinion in the Grossjean case, writing that "corporations are guaranteed the ‘freedom of speech and of the press...safeguarded by the due process of law clause of the Fourteenth Amendment.'"

    The Fourteenth Amendment, which says that no "person" shall be denied "equal protection of the laws," was promulgated after the Civil War to free the slaves. But corporations have long asserted that because it says "person" rather than "natural person" it included giving, in 1868 when the Amendment was ratified into law, full Constitutional rights under the Bill of Rights to corporations. (Corporations are, at law, known as "artificial persons" and humans are "natural persons" - both have to have some sort of "personhood" in order to pay taxes, sue and be sued, etc.)

    As Scalia wrote in his opinion in FEC v. Wisconsin Right To Life: "...FECA was directed to expenditures not just by ‘individuals,' but by ‘persons,' with ‘persons' specifically defined to include ‘corporation[s].'"

    Chief Justice Roberts weighed in, too, in the main decision. It's a fascinating decision to read - and search for occurrences of the word "corporation" - and here's one of Roberts' more convoluted observations in defense of corporate free speech rights:
    Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. It would be a constitutional ‘bait and switch' to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy.
    Bottom line - corporate free speech rights are Real Rights that Must Be Respected.

    Justice Souter wrote a rather frightening dissent (this was a 5-4 decision, with the usual right-wing suspects on the "5" side): "Finally, it goes without saying that nothing has changed about the facts. In Justice Frankfurter's words, they demonstrate a threat to ‘the integrity of our electoral process, which for a century now Congress has repeatedly found to be imperiled by corporate, and later union, money: witness the Tillman Act, Taft-Hartley, FECA, and BCRA.

    "McConnell was our latest decision vindicating clear and reasonable boundaries that Congress has drawn to limit ‘the corrosive and distorting effects of immense aggregations of wealth,' and the decision could claim the justification of ongoing fact as well as decisional history in recognizing Congress's authority to protect the integrity of elections from the distortion of corporate and union funds.

    "After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.

    "The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running ‘issue ads' without express advocacy, or by funneling the money through an independent corporation like Wisconsin Right To Life."

    Sounding almost depressed, Souter closed his dissent with these words: "I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today."

    The attempt of corporations (and their lawyers, like Roberts was before ascending to a federal court) to usurp American democracy is nothing new, as David Souter well knew. Fascism has always been a threat to democracy.
    In early 1944 the New York Times asked Vice President Wallace to, as Wallace noted, "write a piece answering the following questions: What is a fascist? How many fascists have we? How dangerous are they?"

    Vice President Wallace's answers to those questions were published in The New York Times on April 9, 1944, at the height of the war against the Axis powers of Germany and Japan:

    "The really dangerous American fascists," Wallace wrote, "are not those who are hooked up directly or indirectly with the Axis. The FBI has its finger on those... With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power."

    "American fascism will not be really dangerous," he added in the next paragraph, "until there is a purposeful coalition among the cartelists, the deliberate poisoners of public information..."

    Noting that, "Fascism is a worldwide disease," Wallace further suggested that fascism's "greatest threat to the United States will come after the war" and will manifest "within the United States itself."

    In his strongest indictment of the tide of fascism the Vice President of the United States saw rising in America, he added:

    "They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection."

    Finally, Wallace said, "The myth of fascist efficiency has deluded many people. ... Democracy, to crush fascism internally, must...develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels."

    As Wallace's President, Franklin D. Roosevelt, said when he accepted his party's renomination in 1936 in Philadelphia:

    "...Out of this modern civilization, economic royalists [have] carved new dynasties.... It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction.... And as a result the average man once more confronts the problem that faced the Minute Man...."

    Speaking indirectly of the fascists that Wallace would directly name almost a decade later, Roosevelt brought the issue to its core:

    "These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power."

    But, he thundered in that speech:

    "Our allegiance to American institutions requires the overthrow of this kind of power!"

    In just a few months, we may again stand at the same crossroad Roosevelt and Wallace confronted during the Great Depression and World War II. Fascism is rising in America, this time calling itself "compassionate conservatism," and "the free market" in a "flat" world. The point of its spear is "corporate personhood" and "corporate free speech rights."

    The Roberts' Court's behavior - if this prediction of their goal for this fall is accurate (and it's hard to draw any other conclusion) - now eerily parallels the day in 1936 when Roosevelt said: "In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for."

    Thom Hartmann (thom at thomhartmann.com) is a Project Censored Award-winning New York Times best-selling author, and host of a nationally syndicated daily progressive talk program The Thom Hartmann Show
    . Thom Hartmann | News. Opinion. Debate. His most recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights," "We The People: A Call To Take Back America," "What Would Jefferson Do?," "Screwed: The Undeclared War Against the Middle Class and What We Can Do About It," and "Cracking The Code: The Art and Science of Political Persuasion." His newest book is Threshold: The Crisis of Western Culture.
    Fascism Coming to a Court Near You | CommonDreams.org

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    Supreme Court Eyes Decades of Campaign Finance Laws

    Court Could Open Door to Unlimited Corporate Spending in Federal Elections

    By Daphne Eviatar 9/8/09 6:00 AM

    The Supreme Court on Tuesday will hear arguments in a case that could reverse major gains made in recent decades to reduce the influence of corporate money on federal elections.

    At first blush, Citizens United v. Federal Elections Commission appears to present relatively narrow, technical questions about the definition of terms under the federal campaign finance law. But after hearing oral argument in the case last Spring, the Supreme Court decided that rather than simply rule on the immediate questions before it, it wanted the lawyers to argue more broadly whether the court should go further and, reversing previous precedents, invalidate corporate campaign restrictions on the grounds that they infringe upon corporations’ rights to free speech.

    In a highly unusual move, the court asked the lawyers to re-brief and re-argue the case, focusing on this critical constitutional question. The court has convened a special session, a month earlier than usual, to hear those arguments. If a majority of the court agrees to reverse those precedents, experts say the court could open federal campaigns to a flood of corporate funding, radically altering American politics and the nature of electoral democracy for the foreseeable future.

    The case also highlights the importance of Supreme Court appointments. Although the court’s newest justice, Sonia Sotomayor, is expected to rule with the more liberal wing of the court to uphold existing campaign finance restrictions, the replacement of Justice Sandra Day O’Connor by Justice Samuel Alito by George W. Bush appears to be the reason the court is even considering such a radical shift.

    On its face, the case is about whether Citizens United, a conservative nonprofit group that receives corporate funding, could pay $1.2 million to fund distribution of its anti-Hillary Clinton documentary as a “video on-demand” during the month before the presidential primary.

    The Bipartisan Campaign Reform Act of 2002, otherwise known as McCain-Feingold, bars corporations and labor unions from using their treasury funds to pay for “electioneering” on broadcast, cable or satellite transmissions for 30 days before a presidential primary and 60 days before the general election.

    “Hillary: The Movie” is a 90-minute documentary in which conservative critics interviewed on camera alternately call Clinton “deceitful,” “cunning,” “ruthless,” a “congenital liar,” and “not qualified as commander in chief.” Citizens United, represented by former Bush administration solicitor general Theodore Olson, argues that its film is not “electioneering” because it doesn’t advocate for or against any particular candidate, it just presents facts and some individuals’ opinions about Hillary Clinton. Alternatively, Citizens United is arguing that the McCain-Feingold law is unconstitutional.

    But the court has already ruled otherwise. In 2003, In McConnell v. FEC, the court ruled on a challenge to the McCain-Feingold Act brought by Sen. Mitch McConnell (R-Ky.), among others. The justices voted 5-4 to uphold the law. Normally, that would answer the question and put an end to the broader constitutional argument.

    Since 2003, however, the composition of the court has changed. Justice O’Connor, who provided the critical fifth vote in favor of the law, has been replaced by Justice Samuel Alito, who’s made clear his skepticism of campaign finance restrictions. (Three of his colleagues — Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas —have previously signed minority opinions advocating striking down campaign finance restrictions.) Chief Justice Roberts has also expressed concern about the campaign finance laws.

    As a result, instead of deciding the case, the court announced in June that it would convene a special session to consider specifically whether it should reverse McConnell and another ruling from 1990, Austin v. Michigan Chamber of Commerce, which upheld a state’s right to limit direct corporate spending in elections. And the cases all build upon a long history of case law defining corporations and their role.

    “This line of cases goes back to 1907,” says Monica Youn, a lawyer and specialist in campaign finance reform at the Brennan Center for Justice at New York University Law School, which submitted an amicus brief in the case. “Since 1907 the United States has recognized that corporations have certain rights, but they’re not citizens, they don’t vote, so those rights can be limited.”

    The right at issue is the First Amendment right of free speech. Conservatives who oppose campaign finance regulation argue that corporations have the same right to free speech – and to political speech – as anybody else does.

    The federal government, which is defending the regulation, hasn’t exactly helped matters. At the first oral argument of this case in March, the government’s lawyer, responding to a question from Justice Alito, suggested that, following the same principles, Congress could ban corporate funding of a book favoring a particular candidate. (McCain-Feingold doesn’t apply to books, newspapers or the Internet. The Washington Independent has signed onto an amicus brief submitted by the Brennan Center clarifying that the campaign restrictions at issue in this case do not restrict Web publications.) “That’s pretty incredible,” Alito replied.

    Conservatives have since pounced on the idea to argue that supporters of campaign finance would support government book banning.

    Similar concerns appear to have prompted the court to revisit its earlier decisions on the issue, surprising legal experts as well as participants in the case.

    “This was a real left-field move by the Supreme Court,” said Youn.

    Most experts agree it does not bode well for the law. Rick Hasen, a professor at Loyola Law School who writes Election Law Blog has written: “If Roberts or Alito were ready to go the narrow route again in Citizens United . . . there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing.”

    Doug Kendall, president of the Constitutional Accountability Center, noted on Huffington Post that the last time the court interrupted its summer vacation to hear a special argument was in one of the cases it now may overturn, McConnell v. FEC. “Before McConnell, the Court hadn’t returned to DC for a pre-Term summer session since 1974, when in United States v. Nixon it ordered President Richard M. Nixon to surrender his secret Watergate tapes.”

    Ironically, Ted Olson, now representing Citizens United, will be trying to convince the court to overrule a case he defended as solicitor general six years earlier. (Olson defended the campaign finance law in McConnell.)

    The case will also be a statement about how “activist” the current Supreme Court is. The Supreme Court normally avoids reaching constitutional questions if they’re not necessary to the case, and rules consistently with its earlier opinions. This case could easily be handled that way, said Hasen. “Here it’s very easy to avoid the constitutional question. The fact that the court asked for argument, suggests some justices are interested in not following that usual principle of avoidance.”

    Ironically, it’s usually conservatives who criticize liberal judges as “activist” for their willingness to overrule precedent or read constitutional rights expansively. (Jeff Sessions, for example, warned that Sonia Sotomayor would be vulnerable to “the siren call of judicial activism.”) Here, it would be the conservative wing of the court reversing precedent to create unprecedented First Amendment rights for for-profit corporations.

    The consequences of that sort of activism could be serious, writes Kendall. “Citizens United will help answer a profoundly important question about whether there is in fact a meaningful difference of opinion among the conservative justices on the question of what justifies overturning prior rulings of the Supreme Court. The answer to this question will go a long way toward determining whether the Court’s shift to the right will be gradual or sharp in the coming years.”

    As for campaign finance rules in particular, if the court overrules the two court precedents involved here, it would likely invite a slew of challenges to other campaign finance restrictions on First Amendment grounds.

    “If the court reverses Austin, then that, combined with a number of other cases that will come down the pipeline in the next three years, will lead to much more corporate money generally in election process,” predicted Hasen. “It will have big influence on who gets elected and the kind of legislation that gets passed.”
    The Washington Independent » Supreme Court Eyes Decades of Campaign Finance Laws

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    Elite Member Grimmlok's Avatar
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    why would any sane court do this

    it's monstrous
    I am from the American CIA and I have a radio in my head. I am going to kill you.

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    This is very unnerving. Not happy about future elections being smothered in even more fear mongering and lies but thanks to Roberts for making dreams come true, I suppose.
    Enjoy the liquor and delicatessen.

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    All Hands in the Corporate Cookie Jar

    By Daphne Eviatar 9/8/09 5:05 PM

    Brenda Wright, Director of Democracy Program at Demos, has posted some insights at the American Constitution Society’s blog on the big campaign finance case, Citizens United v. Federal Elections Commission, to be argued before the Supreme Court tomorrow. Here’s her take:
    Overruling those cases would mean that corporate political spending no longer needs to be funded by voluntary, intentional donations from shareholders or officers who actually support the corporation’s political activity, but instead could come directly from the corporate general treasury.

    If the Court takes that step, perhaps it should do so by making an announcement in the style of Justice Antonin Scalia’s dissent in Austin: “Attention all corporate executives in America: as partial thanks for the economic meltdown the country has just experienced, please roll up your sleeve, put your hand in the corporate treasury and pull out as much as you like for political spending on behalf of your favorite candidates.” After all, what could possibly go wrong from putting corporations in charge of politics?
    “Market constraints” will not somehow prevent any negative consequences of unlimited corporate spending in politics, as some conservatives argue, says Wright. She points to the exponential growth in “soft money” contributions to political parties by corporations and unions between 1984 and 2000, increasing almost five-fold, from 5 percent to 42 percent of political party spending.

    She adds ominously:
    The general treasury funds of large corporations entirely dwarf the existing resources available for political expenditures, and thus will provide a virtually irresistible target for political actors clawing for advantage in federal elections.
    The Washington Independent » All Hands in the Corporate Cookie Jar

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    I wish the media would highlight the activism of the Roberts court more.

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    The corporate media will never allow their own doings to be exposed.

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    The Corporatist Five

    by dday

    The Supremes heard that Citizens United case yesterday, and Dahlia Lithwick sez be very afraid.
    When we first met this case, it involved a narrow question about whether a 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A federal court of appeals agreed with the FEC that the movie could be regulated. Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.

    Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more [...]

    Solicitor General Kagan stands to defend the FEC, not in a frock coat but a tasteful blue pantsuit, and when Scalia pounces on her, two sentences into her opening, she scolds him as if he were an impudent 2-L: "I will repeat what I said, Justice Scalia: For 100 years this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case." Kagan is so loose and relaxed, you'd think this was her 100th argument. Which allows Roberts to dispense with the kid gloves and accuse her, respectively of "giving up" an argument she made in her opening brief and "changing positions." When she is asked, in effect, if she wants to lose this case in a big way or a little way, Kagan is eventually forced to reply, "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses if it has to lose, the answer is yes."

    One of the ways the Roberts Court hopes to make all conflicting case law in the campaign finance realm disappear is to blame all prior bad case law on Kagan. When everyone is thoroughly confused about what rationale the government may advance in order to limit corporate spending, Roberts can gleefully conclude that all of Austin "is kind of up for play. …" Poof. And Austin is a problem no more.

    As Kennedy bemoans the "ongoing chill" of limiting corporate speech, Scalia recites a lyric ode to the greatness of America's "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer." Kagan points again to the "100-year-old judgment of Congress that these expenditures would corrupt the federal system," forcing Scalia to retort that "Congress has a self-interest" and that "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents." Kagan corrects him, noting that "in fact, corporate and union money go overwhelmingly to incumbents." And that this law "may be the single most self-denying thing that Congress has ever done."

    Kagan goes on to distinguish humans from corporations by pointing out that "we have beliefs; we have convictions; we have likes and dislikes." When she urges that it's in the corporation's self-interest to maximize profits and that "individuals are more complicated than that," Scalia does another verse on "the new auto dealer who has just lost his dealership." It's a vision of fluffy corporate bunnies so compelling, it makes you want to give Exxon a great big hug and an African violet for the holidays [...]

    Olson very effectively uses his five minutes of rebuttal time to taunt Kagan for the government's changed positions. And while it looks as though there are five votes to fundamentally alter the way American elections will work, we've been through enough renditions of the Roberts Court slapping litigants around at oral argument then loving on them in decisions to make such predictions unwise. Of course, as Waxman suggests in his closing, it does take a somewhat "self-starting" institution to be deciding a case about campaign finance laws in which no litigant has directly raised the issues and no factual record even exists.
    Aside from how wonderful it is to read Dahlia Lithwick, this severely depressed me. As we already have what amounts to corporate control of government, opening up the meager restrictions on campaign finance through corporate entities may not mean as much as everybody assumes. Corporations currently funnel hundreds of millions to candidates through PACs anyway. But two things stand out upon reading this. First of all, the kind of significant campaign finance reform we need right now - in particular public financing to level the playing field - will never make it through the brick wall of the corporatist Roberts Court, which clearly has a lock on these issues for 20 years at a minimum. Second, if you read through these arguments, and the general set of opinions of the Court over the last term, you can only conclude that George W. Bush was a successful President. With a legacy that far exceeds his lack of accomplishments in domestic or foreign policy. Bush handed the Court to the Federalist Society right for a decade or more, and while the legal system can still put up a fight with respect to civil liberties, on most issues the ultimate answer will fall on the side of the corporation over the people every single time without question. And that's a frightening prospect.

    I think the only path to checking this power lies at the state level and with corporate charters. But state interests can be arguably more corruptible than federal ones.
    Hullabaloo

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    Elite Member Fluffy's Avatar
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    Sotomayor made an interesting remark during the hearing:
    This is very serious stuff, guys. It's boring if you find history books about actual totalitarian societies boring. It's a joke if you can laugh in a jail cell you landed in for political reasons.

    I like Dalia, but she was too hard on Justice Sotomayor and missed a pearl from her. It was downright ironic to say Sotomayor was whining about the lack of a record below when Dalia's main point is that SCOTUS had no business asking so fundamental a constitutional question of litigants who'd not thought to raise it themselves.

    But the biggest thing missed may have been the most important remark in the session. Sotomayor said it to Floyd Abrams:

    Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment.

    And so my question to you is, once we say they can't [strike that balance], except on the basis of a compelling government interest narrowly tailored [which effectively means never], are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.


    Thom Hartmann and progressive constitutional scholars note all the time how corporate personhood for con law purposes was the result of an erroneous headnote that the Court went to town with during the Gilded Age. But all that matters now is that the horse is out of the barn, and you've got 5 justices who think it's no different than us, speech-wise.

    If the wrong people remain a majority on this Court it will take a constitutional amendment to fix this problem. And good luck getting three-fourths of the state legislatures to pass it!

    So we're talking about a fork in the road. It's easier to see down the bad path than t down the good one. We can't imagine saving what's left of our democracy if the 5 win. It's easier to imagine it's end.

    Ha ha! Boring!
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    I doubt Sotomayor's observation/remark will figure in the ruling opinion though.

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    Colbert Stands Up for Corporations in Citizens United

    Posted Sep 16 2009 - 3:56pm
    • On September 9, 2009, the Supreme Court re-heard oral argument in Citizens United v. FEC. Brenda Wright, of Demos, summarized the issues in the case as follows:
      The narrow question originally presented by the case was whether an on-demand video showing of an anti-Hillary Clinton documentary during the 2008 election could be regulated as a political advertisement under the Bipartisan Campaign Reform Act (BCRA) because the sponsor -- a conservative non-profit group called Citizens United -- wanted to use for-profit corporate funds to help pay for the airing. That narrow question has been virtually obliterated by the Court's order at the end of last Term inviting briefing on whether Austin v. Michigan Chamber of Commerce and McConnell v. FEC should be overruled.
      "Corporations have free speech, but they can't speak like you and me," Stephen Colbert explains in the video below, implicitly arguing in favor of reversing Austin and McConnell. "They don't have mouths or hands. Instead, ... they must speak in the only way they can: through billions and billions of dollars."
    Colbert Stands Up for Corporations in Citizens United | American Constitution Society

    Colbert "The Word" segment viewable at link.

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    "Corporations have free speech, but they can't speak like you and me," Stephen Colbert explains in the video below, implicitly arguing in favor of reversing Austin and McConnell. "They don't have mouths or hands. Instead, ... they must speak in the only way they can: through billions and billions of dollars."
    Colbert strikes again.

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