First Court Challenge to Citizens United v. FEC - DailyKos

First Court Challenge to Citizens United v. FEC
by john bonifaz - DailyKos
TUE MAY 17, 2011 AT 11:57 AM PDT

<snip>

The US Supreme Court’s ruling in Citizens United v. FEC is facing its first direct challenge in the courts. A coalition that includes two national business networks and local Montana businesses recently joined the State of Montana in defense of its century-old ban on corporate money in elections. Montana’s Corrupt Practices Act, which goes back to 1912, is under legal attack following the Supreme Court’s January 2010 decision in Citizens United, which equated corporations with people under the First Amendment and swept away longstanding precedent that had barred corporate expenditures in federal elections.

Led by Free Speech For People, a national campaign to overturn the Citizens United ruling, the coalition filed a friend-of-the-court brief on April 29, 2011, before the Montana Supreme Court in the case of Western Tradition Partnership, Inc. v. State of Montana. In October 2010, a state judge hearing the case in Helena, Montana, struck down Montana’s Corrupt Practices Act, applying the Supreme Court’s decision in Citizens United. Montana Attorney General Steve Bullock has appealed that judge’s opinion to the state’s highest court.

“The 5-4 decision in Citizens United v. Federal Election Commission,” the coalition’s brief states, “was an extreme extension of an erroneous corporate rights doctrine that has eroded the First Amendment and the Constitution for the past 30 years.” “A corporate pay-to-play, ‘crony capitalism’ vision of elections,” the brief continues, “is contrary not only to our republican principles of government, but also to American principles of free and fair commerce among free people and the States.”

The coalition’s brief argues that the Montana Supreme Court should uphold Montana’s Corrupt Practices Act, at least until the US Supreme Court decides whether to extend the corporate rights doctrine of Citizens United to the States.

<snip>

More: http://www.dailykos.com/story/2011/05/17/976857/-First-Court-Challenge-to-Citizens-United-v-FEC?via=siderec

:kick:

The First Amendment principle that Congress cannot restrict political speech?

between liking the practical consequences of the decision and thinking that it is legally valid.

Legal is an interesting word. Is it legal that the SCOTUS can overturn legislation and essentially not allow similar legislation to be passed? Who says that's legal? It sure as hell aint in the Constitution. Once upon a time Chief Justice John Marshall decided that the SCOTUS should be able to give themselves that power without approval from any other branch of the government. Now along comes mr. Unitarian Executive John Roberts Jr. (who lied his way into power) and he says the Constitution protects the almighty corporations as if human. I say bullshit. I say Mr.Roberts isnt legal and his decision Citizens United isnt legal.

to be in conformity with the Constitution, for reasons I've made clear (to those who comprehend the document) elsewhere in this thread. Your response is one of a knee-jerk reactionary who is only interested in having cases decided his way, regardless of the law.

And the Constitution is the supreme law of the land, and has been since it was ratified. Anything that violates the Constitution is illegal.

Take right wing fundies who don't like Roe v. Wade. They still have to live with it as the law of the land.

A decision from the Supreme Court generally settles everything. Getting them to reconsider the question adds another layer of legal standards.

You mean like the Patriot Act for instance? This Extreme Court overruled themselves on this issue so there is legitimate question.

Corporations aren't people, they are legal entities.

From the article:
"Corporations are not people. The Framers understood that. The First Amendment and the Constitution is for people. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”

the falsehood that Citizens United was about corporate personhood? It wasn't, and the decision did not require the court to find that corporations have all the rights of individuals. The free speech clause is a restriction on the actions of Congress. Nowhere does it restrict the right of unencumbered political speech to individuals.

that would be considered limiting free speech. The question is whose speech was being limited? A corporations? How does a corporation get a guarantee of free speech? Where does it say that the Bill of Rights applies to corporations?
It appears to me that Roberts wants to rule that the Constitution allows an oligarchy or dictatorship (unitary executive).
The fallout of Citizens United will be that foreign governments will be buying our government.

that Congress shall make no law restricting the freedom of speech. It doesn't say whose speech and it doesn't say that Congress is only prohibited from restricting the speech of individuals. Unless you're reading a different constitution than I am.

And do you really, REALLY believe that the First Amendment right of freedom of the press and the Fourth Amendment right to be free from unreasonable searches and seizures should NEVER apply to corporations?

How can they be restricted from speaking???? The authoritarians mean that money is speech and the Constitution allows money to speak. Fuck that shit. Corporations were built by humans and can be killed by humans. It's time to kill some.

then what exactly is it that you'd like to stop them from doing? Sheesh. Engage your brain before you start typing next time, OK?

with what it deserves. Educate yourself and post sensibly if you're going to try to influence others, or expect to smacked down.

And if I dare speak, I will be "smacked down". Have you read "The Authoritarians" by Bob Altemeyer? He would call you an authoritarian. I would call you a bully.

blatantly foolish and uninformed statements that you are foolish and uninformed. And that if you repeat foolishness over and over, in an attempt to influence others, that your foolishness will be called what it is. Call me whatever you like, but this is about getting at the truth, not about your feelings or mine. If you think you're being "bullied", you're free to respond with sound evidence and logical arguments to support your statements and to discredit mine. Lacking that, live with it.

have a polite discussion.

on a internet chat board, I can't help you. If you can't back up your statements, and continue to repeat them after they have been shown to be nonsensical, there's no help for you there either. If you want a polite discussion, act like it. I don't suffer fools gladly, especially when they parade their notions around like gospel.

Money and speech are not one and the same, although they can be related. And corporations are not people. It is inappropriate for a corporation united for the purpose of making money to spend money influencing elections and making political speech. A human is defined by many things, but a corporation as an entity is defined only by the purpose that brought its component persons together. In the case of a business corporation, these people come together to form a money-making venture. If all of those individuals want to get together and pool their money for the sake of political speech, they should form a separate group to do so. Otherwise, a corporation is misusing funds to promote a political ideology not necessarily shared by its shareholders, or using that money as a mechanism to influence policy to their financial gain, which is NOT the purpose of freedom of speech.

People have the right to freedom of speech. Groups of people united for the purpose of acting politically have the right to freedom of speech. A business does not have this right.

You will never convince me otherwise. I cannot believe you are OK with ExxonMobil spending a few billion to influence elections.

of freedom of the press doesn't apply to corporations? No news agency, no news magazine publisher, is entitled to freedom of the press?

And are you OK with vicious criminals escaping punishment because evidence against them was collected illegally and excluded under Mapp v. Ohio? Should that decision be overturned because of undesirable consequences?

What is it about this issue that makes people say such ridiculous things?

Your argument about news organizations is ridiculous. No one in their correct non-fascist mind is against the individuals who run such corporations/news organizations having First Amendment rights to do their jobs correctly.

Newsflash: Individuals run corporations. Individuals hold offices in those corporations.

I feel like I'm ... never mind, I don't want a granite pizza.

the newspapers and magazines. Corporations do. Look up freedom of the press cases...who is listed as a party...the news corporation or only individuals? In the Pentagon Papers case, it was NEW YORK TIMES CO. v United States. The Supreme Court decided in favor of the New York Times CORPORATION. The Supreme Court decided that the New York Times CORPORATION had the First Amendment right to publish what they wanted.

You fail Con Law 101. Better gnaw on that granite pizza until you grow some sense.

buy our government. I doubt that our founding fathers meant that. Legal is a matter of interpretation. I am sorry you side with the oppressors.

has allowed criminals who were clearly guilty to escape punishment. Do you oppose that decision, and believe it should be overturned, or do you side with the criminals?

for a polite discussion? I ask you to back up your argument and answer a simple question, and you dodge it. And you wonder why you're treated with something less than respect.

the understanding of 'corporations' at the time the Framers wrote the Constitution.

Everything I've ever learned about the Framers' opinions of the corporate charter leads me to believe that they, at least, understood that corporate charters were supposed to be limited in scope. Very limited. My overall impression, based on everything I have ever read, is that the Framers knew corporate power was not to be trusted, which is why they tried to restrain that power by requiring a charter for any corporation. Further, my understanding (and I may be wrong on this) is that they felt a corporation that acted against its charter, or more importantly outside its charter, should be dissolved.

Santa Clara Cty. v. Southern Pacific Railroad Co. did away with that. Not so much the written decision itself, but rather the headnotes of the case. The court clerk, himself a former railway president, inserted that interpretation as a gift to his industry. In truth, many corporations of the time had been agitating for a similar decision for years prior to that decision.

As to your final question, corporations should have no rights under the Constitution as we define them for 'natural' persons. Corporations are not persons, and as such should have only privileges, not rights. Further, those privileges should be revocable at will by the state which issued their corporate charter. Effectively, this means that advertising that lies about a product would result in a ban on the corporations' speech for a period of time, the corporation in question should be required by law to open all files, records, research, and development information to state regulators at any time for any reason or for no reason (no Fourth), corporations would not be able to hire armed security (no Second), no corporate officer would have the Fifth to fall back on during court testimony regarding corporate misdeeds, etc., & etc.

Basically, corporations- all corporations- should be slaves to the public at large first, and only then to their investors. Ideally, they would also face a corporate death penalty for grievous misdeeds (such as the Massey mine explosion) by dissolution of the corporate charter and a permban on all officers of the corporation from ever serving on any other corporate board in the state, for life.

I realize this may seem extreme to some, but the fact is that corporation as we define and use them today are soulless, amoral, immortal entities that have capabilities natural persons do not, and as such, we should have corporations- all US corporations- very, very tightly under our thumb.

Corporations should have no 'rights'. Period.

They're afraid of the implications, oh golly, if the big rich corporations can have political speech, then they'll ruin us! Just ruin us!

God there was a time when unions were so powerful in this country the corporate investors were the ones afraid of that!

They gave up their political speech because they, the corporations, weren't really able to use it to their advantage (a corporation can risk serious consequences, even lawsuits, by not representing their constituents). How the fuck do you guys think "Bipartisan Campaign Reform Act of 2002" got passed? The corporations just said "oh, OK, I guess I don't mind"? No, they said "fuck yes, let's completely destroy union politiking! We can do it anyway in our elite political clubs with lobbyists!"

I don't know of any directly democratic unions.

means are narrowly tailored to achieve that interest.

As the Supreme Court pointed out in Buckley vs. Valeo and repeated in decisions since, preventing corruption and the appearance of corruption is a compelling interest, and outright banning contributions to a candidate over a certain amount was sufficiently tailored to achieve that interest.

Similarly, as the Supreme Court pointed out in Austin vs. Michigan Chamber of Commerce (and reaffirmed in 2003 in FEC vs. McConnell), forcing corporations to fund political ads from their Political Action Committee (rather than their general treasury) is a similarly narrowly-tailored means of achieving the compelling interest of preventing corruption and the appearance of corruption. In fact, it is even more tailored than contribution bans over a certain amount, since nothing is being banned. (Rather, the funding source is being regulated.)

Personally, I don't even think source restrictions should get strict scrutiny under the first amendment. No speech was being banned. They simply had to fund their speech with the money of people who supported the speech, rather than from their general treasury full of money from people who might abhor such speech. There was nothing in the law that prevented the corporation from using a PAC to air all the ads they want (where the money in the PAC came from people in the corporation who supported the speech in question).

But even if you think the first amendment is implicated here in a way that requires strict scrutiny, the law in question in Citizens United has been reaffirmed time and time again as satisfying strict scrutiny. It was only after Alito replaced O'Connor where the court changed its mind, and said that independent expenditures by definition do not corrupt the political system (summarily dismissing a long, detailed, and comprehensive Congressional factual record to the contrary, in addition to multiple Supreme Court precedents to the contrary).



(Note that this does not even bring up the much broader rationale in support of campaign finance, which is that the government is ALREADY suppressing speech by allowing supply and demand to be the only determinants of ad pricing. This means the government is actively allowing a rich person to bid up the price of an ad so high that the speech of everyone else is suppressed, violating the first amendment. In reality, no matter how Congress sets up the market, the decisions Congress makes will suppress the speech of citizens in violation of the command of the first amendment. Wouldn't correcting for such suppression (and enabling more voices by ensuring one rich buyer can't bid up the price of advertising to unaffordable levels) be Constitutional, as it would be reducing the speech-suppression that Congress created in the first place?)

that Congress shall make no law restricting the freedom of speech. Sitting by passively while other forces determine how much access to the mechanisms of free speech is not a violation. The Constitution doesn't say that Congress is required to step in and level the playing field if one side is having a lot more success getting their message out than the others.

have restricted the freedom of speech for countless citizens.

You pretend that these "other forces" are outside what Congress does, as if a Lochner-style libertarian world is somehow the only possible baseline. But this is false: the Constitution does not say "Congress shall not restrict the freedom of speech beyond setting up a libertarian market." The libertarian market is no more special than any other type of market/economy Congress could have set up. If Congress' laws establishing a completely libertarian market restrict the freedom of speech for most people, that is certainly no less a restriction on the freedom of speech than the restrictions of speech you keep talking about.

In reality, an economy that allows for the inequality we have restricts freedom of speech for countless citizens far more than the laws in question here. You give them a pass, because apparently to you, Congressional laws that result in inequality-driven-restrictions on free speech are somehow fine (whereas Congressional laws that remedy inequality-driven restrictions on free speech are somehow not). You instinctively attempt to protect the former, when the Constitution does no such thing.

Given that any economy Congress establishes will often result in a restriction on free speech for much of society (meaning that your absolutist vision of the first amendment will always be violated no matter what), Congress can take steps to lower such violations by limits on money spent (allowing more, rather than fewer, people to speak).

(You also don't address the corruption argument at all.)

the means to exercise your rights is not the same as actively restricting them, no matter how you spin it, and active restriction is all that the First Amendment addresses. You can wish all you like that the Constitution mandated Congress to supply the means to exercise that right, as it does with the right to counsel, but it simply doesn't in the case of speech. Nor in the case of freedom of religion, freedom of the press or freedom of assembly.

Does our current system of campaign financing foster corruption? Of course it does. I have never said or implied otherwise. I've stated quite clearly that a Supreme Court decision can be be in conformity with the law and still have undesirable consequences when applied in the real world. The question is whether to fix the system within the strictures of the Constitution, or to ignore the Constitution when it becomes inconvenient (as the Bush administration did frequently, to your dismay, I suspect).

one that is allocated according to a free market, and can be used for most things other than advertising, and one that is allocated equally, and can be used for advertising (and some other things)?

Would this be OK for you under your theory of the first amendment?

If you do not think this is OK, what is your principled Constitutional reason for not thinking it is OK? What in the Constitution requires that the "means" for speech be the same as the "means" for anything else? What in the Constitution requires that the "means" for speech be distributed according to a libertarian free market, as opposed to some other type of market entirely?




As for the corruption rationale, much to the dismay of first amendment absolutists, the Supreme Court has interpreted the first amendment (and most other amendments) as not absolute statements. Rather, they allow for laws restricting free speech when they are narrowly tailored to a compelling governmental interest (including fire in a crowded theater, and corruption or the appearance of corruption).

You can argue that you don't think corruption is really all that big of a problem, and shouldn't be considered a "compelling interest" (contrary to Buckley vs. Valeo and every decision since). But if you are seriously saying that the compelling interest/narrowly tailored standard does not apply, and that the first amendment is absolute, you are arguing against basically all first amendment scholars and 200 years of precedent.

and contrived hypothetical has to do with the First Amendment would be a mystery to any Constitutional scholar. Read the free speech clause and the case law concerning it...if you find anything remotely on point, let us all know.

And where have I said that I don't think that corruption is all that big a problem? Answer: Nowhere. Just another silly strawman of yours. But your arguments about "compelling interest" conveniently ignore the fact that we're talking about political speech here (under which umbrella yelling fire in a crowded theater does not fall, nor does corruption), to which the highest possible level of First Amendment protection is granted. How many decisions that you approve of can you name where the Supreme Court ruled that political speech could be suppressed based on a compelling governmental interest?

Can Congress take any steps at all to equalize the speech market (in the way I asked in the post), or not? This is a central question of first amendment law and campaign finance, one that the most renowned first Amendment scholars have grappled with. You should be able to answer my relatively simple question as to whether you believe a certain hypothetical Congressional action (that would have the effect of equalizing the speech market) is Constitutional or not.

Can Congress create a new currency for advertising (and potentially some other things), and allocate the currency equally (having the effect of equalizing the speech market)? Or not?

I'm interested in hearing your answer. Most (but obviously not all) people who support Citizens United are conservative and economically-libertarian, and of the many I have talked to, they answer my question by saying that the Constitution does in fact guarantee an economically-libertarian "free-market" for speech (even though the Constitution doesn't say that at all), and blocks any government-induced deviation from it. I would assume you would answer "no" to my question, but I am very interested in how you (ostensibly a non- economic-libertarian, by virtue of you posting here) would justify it based on the Constitution.

under the Constitution, at least under the First Amendment. So what? The real question, as you've stated the issue, is whether the First Amendment REQUIRES such an action. I maintain that it doesn't. Can you cite a single case in which the Supreme Court has ruled otherwise? Where the SC has ruled that Congress is obligated to provide public resources to assist the downtrodded in getting out their political messages?

I'm talking about what is permitted.

My point is, if you think my hypothetical is permitted, that is really not all that different from the type of campaign finance laws that are now unconstitutional due to Citizens United (i.e. corporate spending caps). Both increase the number of people that can speak (one through supply and demand and the resulting price level, and one through with dispensing with supply and demand in the first place).

That is ultimately what Citizens United is about: what does "free speech" mean? Citizens United implies that it means a libertarian free market, where inequality in the general market results in inequality in the speech market. Campaign finance reformers, on the other hand, believe that "free speech" itself is an egalitarian concept, where the more people that can speak, the freer the speech. This difference is everything.

To one with a libertarian concept of "free speech," a speech market where one insanely rich person can use his bidding power to prevent everyone else from speaking is "free speech" -- and such a market can NOT be regulated by the government by placing spending caps on this rich person (or enacting my alternate speech currency hypothetical). Any government action to limit the spending of the rich person on advertising is absolutely unconstitutional (including my alternate currency hypothetical).

On the other hand, to one with a more egalitarian concept of "free speech," the speech market above (with one dominating rich person preventing others from speaking) can indeed be regulated by the government, in the direction of more people speaking (for example, by placing spending caps on the rich person, enacting my alternate currency hypothetical, etc). Why? Because such regulation is increasing free speech, from a previously decidedly unfree speech. Note that I'm not saying it is REQUIRED that the government do so -- I'm simply saying that it can (under this view of free speech, but not under the libertarian-free-market view of free speech).

"Note that I'm not saying it is REQUIRED that the government do so -- I'm simply saying that it can"

I was wondering how long it would take for someone to take this line of reasoning, as it pretty easily demolishes skepticscott's silly "OMG OMG first amendment!" posturing. The amendment plainly prevents congress from restricting speech, not that it cannot rule at all regarding free speech. Somehow "within the bounds of the constitution" has been taken to mean we should only pass laws explicitly required by the constitution.

Just a bit ago, you said: "The reasoning behind overruling those decisions was simply this: that independent expenditures by corporations do not cause corruption, despite a gigantic factual record of Congress that supported the proposition that independent expenditures of corporations cause corruption."

Now you're saying : "That is ultimately what Citizens United is about: what does "free speech" mean?" You're arguing that the Constitution permits the suppression of speech in order to make speech freer, with no mention of corruption at all. Do you even understand your own argument, or are you just throwing out anything and hoping something sticks?

And Citizens United does not prevent anyone from speaking. It allows more, not less, political speech, by anyone who chooses to express it. Nowhere does the First Amendment require that the market share of speech be divided in any particular way. You may wish that it did or think that it should, but that's a far different matter. Congress could, if it chose to, make the free speech market more egalitarian by handing out big pots of money to people who can't afford TV time to let them get their own messages out, but in no way does the First Amendment require it. It cannot constitutionally take the alternate path of leveling the free speech playing field by telling some people, "You've had your say and you have to shut up now".

The anticorruption rationale is entirely different than the egalitarian rationale. There's a reason I split the subthread.

The anticorruption rationale is why Citizens United was entirely wrong according to current case law.

The eglaitarian discussion we are having in this subthread is about whether the entire campaign finance jurisprudence is justified in the first place.

In other words, even if you disagree with anything in this subthread, the anticorruption rationale still saves the law. This is simply a broader discussion as to whether or not we even need the anticorruption rationale to save the law.

"And Citizens United does not prevent anyone from speaking."

Nonsense. Citizens United allows one market participant to bid up the price of advertising to a level for which no one else would be able to speak. It doesn't just prevent one person from speaking -- it has the potential to silence a large fraction of the population. A libertarian speech market is one of the most unfree speech markets imaginable, and this gives Congress the power (not the obligation necessarily, but the power) to make the market more free.

I suggested that Congress did indeed have the power to correct such an unfree speech market to make it more free (either by spending limitations or an alternate speech currency).

You appear to disagree that they can enact spending limitations, though you appear to agree that Congress could enact an alternate speech currency. But there is really little distinction between them. An alternate speech currency, as I described, mandates that participants use that equally-distributed currency (and not the normal, libertarian-free-market currency for other things) for advertising. So a rich person in the other currency can NOT use his other currency to dominate the market. It most assuredly limits what the rich person could spend on ads, just like a spending cap does.

Yet to you, the new currency is OK, but the spending limitation is somehow not.

whose right to political speech existed before CU and doesn't any more? One person who was allowed to express their political opinions before, but not now, as a result of Congressional action? As far as what seems to be your primary complaint, what did CU really change?

And would you and most other people on this site be up in arms about the CU decision if Democratic candidates were out-raising and outspending and out-advertising their Republican opponents by a huge margin? If unions and corporations were running adds supporting Democratic candidates and progressive causes to a much greater extent than Republican and conservative causes? Would you insist on a more egalitarian system then? Or would you be fine if the side you favor was having much more success getting their message out? What level of the imbalance you claim is acceptable?

to outbid a single billionaire for advertising can't speak. Before such a market were set up, this would not have been the case.

I'm not saying it is unconstitutional for there to be a libertarian speech market, if that is what Congress wishes. I am merely saying that is also not unconstitutional to make the speech market somewhat less libertarian, as they did in this case.

You seem to be arguing that once Congress sets up a libertarian speech market, it can do nothing to make it less libertarian (for that would be suppressing the speech of a billionaire relative to his capacity to speak in a libertarian market, and therefore be unconstitutional). In other words, setting up a libertarian speech market is somehow a "point of no return," that Congress cannot reverse later by making the market less libertarian.

But that is complete nonsense -- unless you believe that the first amendment mandates a libertarian speech market (where inequality in the general marketplace MUST translate to inequality in the speech market). This is what many libertarian and conservative CU defenders believe, which is why they support CU. But it is apparently not what you believe, which makes your view here somewhat less coherent than their view.

that just because someone isn't a billionaire that they have no forum and no opportunity to express their political opinions? Please tell me you're not saying that, because that would be patently ridiculous. Even if it weren't, you still haven't answered the question of how CU fundamentally changed anything. There will never be complete equality in the ability to exercise our rights of free speech, or any of our other fundamental rights. There isn't now, there wasn't five years ago, and there wasn't 200 years ago. So again, what level of inequality is unacceptable, and when was the line crossed that you believe requires Congress or the Supreme Court to act?

And it does not become acceptable to restrict the free speech rights of someone just because their income is above a certain (arbitrary) level. As I quoted before, from a decision you yourself have cited to support your argument,: "First Amendment protections do not depend on the speaker’s financial ability to engage in public discussion." Your attempt to use the label of "billionaire" as a smear doesn't change that.

Since you've seen fit to dodge the other questions I raised, I think I have my answer on those.

The central issue here is, was CU violative of a fundamental constitutional principle, or did it merely retract an exception to such a fundamental principle, after considering it in retrospect? If not the former, then my original question remains...what exactly is anyone seeking to overturn here?

You claim that non-rich people not being able to advertise (due to specific actions of Congress ordering the speech market) is not a problem, since those non-rich people can find other ways to express their political opinions. Yet apparently, to you, a rich person not being allowed to advertise as much as he would like is an outrage that must be stricken, despite there being plenty of other ways for that rich person to express their opinion. It is your argument and contradiction that is patently ridiculous -- not mine.



Just because the market will never be equal doesn't mean Congress can't take action to make it slightly more equal. I have said multiple times that I am not arguing that Congress is required to act -- rather, I am saying that under any reasonable reading of the first amendment, they should be allowed to act. You disagree, because whether you realize it or not, you are assuming that the first amendment implicitly requires the speech market to be a libertarian-ordered market, and prevents Congress from changing this as it has done here.



Once again, you assume that making the speech market less libertarian is "restricting the free speech rights" of the rich. That again assumes that "free speech" implies a libertarian ordering of speech, and any deviation from such a libertarian ordering is a "restriction on free speech rights." But if you take that assumption (of the Constitution mandating a libertarian speech market) and throw it in the trash, making the speech market less libertarian is increasing free speech (rather than decreasing it).

Of course Citizens United says what you quoted -- Citizens United (along with some past decisions) implicitly accepts that the first amendment mandates a libertarian market for speech (where general market inequality MUST lead to speech market inequality). I'm not sure why you think the Citizens United quote supports your proposition -- my entire subthread here is disagreeing with Citizens United. I obviously do not agree with Citizens United just because I cite Citizens United to show that various statements you made about the decision are factually incorrect. There is a difference between saying "Citizens United says X" and "Citizens United is correct in saying X."



Unlike you, I have answered your questions. The question you dodge is how you could possibly hold the following two positions simultaneously:

1. The first amendment does not mandate a libertarian-ordering of the speech market, and
2. The first amendment prevents Congress from making a speech market less libertarian.

It is incoherent to claim 1 and 2 are true simultaneously. You keep trying to dodge this contradiction, but in reality, one of those two statements has to be wrong for your view to even be self-consistent.

You claim that non-rich people not being able to advertise (due to specific actions of Congress ordering the speech market) is not a problem, since those non-rich people can find other ways to express their political opinions. Yet apparently, to you, a rich person not being allowed to advertise as much as he would like is an outrage that must be stricken, despite there being plenty of other ways for that rich person to express their opinion. It is your argument and contradiction that is patently ridiculous -- not mine

Your false equating of "able to advertise" and "allowed to advertise" (either through ignorance or a rhetorical dodge) renders this whole argument ridiculous. As does your assumption that not having money for advertising renders someone unable to express opinions at all.


Just because the market will never be equal doesn't mean Congress can't take action to make it slightly more equal. I have said multiple times that I am not arguing that Congress is required to act -- rather, I am saying that under any reasonable reading of the first amendment, they should be allowed to act. You disagree, because whether you realize it or not, you are assuming that the first amendment implicitly requires the speech market to be a libertarian-ordered market, and prevents Congress from changing this as it has done here.

Congress is perfectly free to act here. They can give money to people who have less and level the playing field in a perfectly Constitutional way.


Once again, you assume that making the speech market less libertarian is "restricting the free speech rights" of the rich.

No, I don't. See above. I claim that telling rich people they can only speak so much is restricting the free speech rights of the rich.

Of course Citizens United says what you quoted -- Citizens United (along with some past decisions) implicitly accepts that the first amendment mandates a libertarian market for speech (where general market inequality MUST lead to speech market inequality). I'm not sure why you think the Citizens United quote supports your proposition -- my entire subthread here is disagreeing with Citizens United. I obviously do not agree with Citizens United just because I cite Citizens United to show that various statements you made about the decision are factually incorrect. There is a difference between saying "Citizens United says X" and "Citizens United is correct in saying X."

The quote was not originally from Citizens United, but from Buckley (only cited in CU). If you'd actually read the decision carefully, you would have known that. Another argument that never got off the launching pad.


Unlike you, I have answered your questions.

Uh, no...you avoided every one of these..multiple times now:

Would you and most other people on this site be up in arms about the CU decision if Democratic candidates were out-raising and outspending and out-advertising their Republican opponents by a huge margin?

If unions and corporations were running ads supporting Democratic candidates and progressive causes to a much greater extent than Republican and conservative causes?

Would you insist on a more egalitarian system then?

Or would you be fine if the side you favor was having much more success getting their message out?

What level of the imbalance you claim is acceptable?



Your responses really are getting tiresome. And not worth the effort to demolish any more.

"Your false equating of "able to advertise" and "allowed to advertise" (either through ignorance or a rhetorical dodge) renders this whole argument ridiculous. As does your assumption that not having money for advertising renders someone unable to express opinions at all."

Actually, it is YOU who is falsely distinguishing Congress actively preventing someone from being able to advertise (though the market they set up), and a direct limit on their advertising. Fail.

"Congress is perfectly free to act here. They can give money to people who have less and level the playing field in a perfectly Constitutional way."

Could they create a separate new currency for advertising, allocated equally? You said they could in an earlier posts. But such a speech currency ABSOLUTELY restricts the ability of a rich person to speak, relative to what he could if there were no separate speech currency. Yet you say that such a currency is OK, while the law in Citizens United is not. Why? You have avoided this question for post after post, and it really goes to the heart of the matter. If you answered it coherently, you would see how wrong you are in all of your points above (such as pretending there is a Constitutionally significant difference between Congress banning X and Congress removing the means for someone to do X).

"Congress is perfectly free to act here. They can give money to people who have less and level the playing field in a perfectly Constitutional way."

Or they can do what they did here, which is perfectly Constitutional. :shrug:

"No, I don't. See above. I claim that telling rich people they can only speak so much is restricting the free speech rights of the rich."

But apparently to you, creating a new currency for advertising allocated equally (which prevents rich people from speaking nearly as much as they could otherwise with a unified currency) is not restricting the free speech rights of the rich. :crazy:

"The quote was not originally from Citizens United, but from Buckley (only cited in CU). If you'd actually read the decision carefully, you would have known that. Another argument that never got off the launching pad."

Everything I said in that paragraph is equally true if you replace the spending part of Buckley with CU.

Your questions are trivial. I would be up in arms with CU if Democratic candidates were outraising/outspending/out-advertising Republican candidates (as they were in 2008). I would be similarly be up in arms with it if corporations/unions were airing ads that favored progressive causes much more.

"Or would you be fine if the side you favor was having much more success getting their message out? "

Nope, I would not be fine. See above.

"What level of the imbalance you claim is acceptable?"

Since we are talking about a legal question (not a political one), my only argument is that Congress can lower the imbalance. I am not arguing over the amount -- just over the ability of Congress to figure it out.

"political speech could be suppressed based on a compelling governmental interest?"

We can start with the 1986 decision of Austin vs. Michigan Chamber of Commerce, which held that bans of express advocacy by corporations were narrowly tailored to achieve the compelling state interest of reducing corruption (and therefore constitutional). (They did not pull this compelling interest out of the blue -- this interest was articulated in the earlier Buckley vs. Valeo, the seminal first amendment campaign-finance case.) Furthermore, the 2003 FEC vs. McConnell decision upheld Austin and extended it, for the same reason.

Both McConnell and Austin were overruled by Citizens United. The reasoning behind overruling those decisions was simply this: that independent expenditures by corporations do not cause corruption, despite a gigantic factual record of Congress that supported the proposition that independent expenditures of corporations cause corruption. Note that they did not claim as you do, that of course such corporate money causes corruption, but that we are somehow powerless to deal with it because of an absolutist vision of the first amendment. They claimed that corporate money simply does not cause corruption, despite the voluminous Congressional record to the contrary.

Personally, I believe that preventing corruption (government-by-highest-bidder) is by far one of the most compelling interest that a democracy could have, and that such an interest is far more compelling than many other compelling interests repeatedly upheld by the Supreme Court for 200 years. But regardless of whether you agree or disagree with my views, you cannot possibly claim that McConnell and Austin don't exist, or that they don't stand for the proposition that speech can be regulated if such regulations are narrowly tailored to the compelling interest of preventing corruption. I am not pulling this interest out of thin air -- I am getting it from case law going back decades.

invalidated, just as Plessy v. Ferguson was invalidated by Brown. And your characterization of the reasoning behind the overturning of McConnell and Austin is grossly dishonest:

The reasoning behind overruling those decisions was simply this: that independent expenditures by corporations do not cause corruption, despite a gigantic factual record of Congress that supported the proposition that independent expenditures of corporations cause corruption.

"Simply this"? Uh, no...not remotely. CU was decided primarily on the principle of whether Congress can suppress the right of political speech by corporations (which previous decisions had already established to exist). That is abundantly clear from reading even a summary of the decision. That you would make such a transparently false argument makes me wonder what else you're making up, hoping that you won't be called on it.


And I never said that we are powerless to deal with the problem, now did I? I said that the problem should be dealt with within the strictures of the Constitution, rather than by running roughshod over it. What part of that do you have a problem with?

See section III-B-2.



What I said is exactly right -- the Court essentially ignored the ultimate conclusions of Congress backed up by a huge factfinding record, and simply (yes, simply) declared that independent corporate expenditures do not lead to corruption or its appearance.

If the Court instead embraced the conclusions of the factual record before it, the decision might very well have come out the other way. It has LONG been established (since Buckley, up through and including Citizens United) that political speech can indeed be suppressed if such suppression is narrowly tailored to preventing corruption or its appearance. Not only is this true, but it isn't even controversial. There may be a dispute over whether certain restrictions are narrowly tailored to achieve this compelling interest, but there is essentially no dispute that under current case law, preventing corruption IS a compelling interest (meaning that speech suppression that is narrowly tailored to prevent corruption is indeed allowed).

The truth is that Congress CAN suppress the right of political speech in the form of banning corporate contributions to candidates. Citizens United did not change this at all. Such statutes are still on the books, and they have been upheld by the Supreme Court. So ultimately, you are completely wrong. The decision does not come down to simply whether political speech is being suppressed. The court (even in Citizens United, and going back decades) has ruled that it CAN be suppressed in certain situations, and not in others. The line is not whether it is being suppressed, but whether the suppression is narrowly tailored to combat corruption or its appearance (as is undisputedly the case for contribution limits, disclosure rules, etc).

In the future, if you are going to call something someone else says "transparently false," you should first do your best to understand what you are talking about. First amendment campaign finance case law is much more complicated than you make it out to be. One could not possibly understand it fully unless they have read Buckley/Austin/McConnell/WRTL II/Citizens United and others. In this case, not only is what I'm saying completely true, but I don't think any first amendment scholar would dispute it. They might disagree with me that independent expenditures cause corruption, but they would not disagree that the decision comes down to the question of whether such speech suppression is narrowly tailored to preventing corruption (rather than what you say, which is it simply comes down to whether speech is getting suppressed in the first place).




That presupposes that there actually is a way to "deal with the problem" "within the strictures of the Constitution" (as the Citizens United court defines the Constitution). But this is ultimately not true, for a whole different set of reasons (mainly relating to the infeasibility or unworkability of various public financing regimes). The only way the problem is going to be dealt with is in 10 or 20 years, when a Democratic president appoints a replacement for a Republican justice and Citizens United is overruled (just like Plessy vs. Ferguson was overruled).

but your statement was that CU was simply about corruption and nothing else. And then you pluck one quote from the entire decision that mentions corruption, while ignoring innumerable passages that frame the decision as a free speech issue. To cite just a few:

1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppres- sion upheld in Austin.

Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Gov- ernment to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

(The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” (My emphasis) Buckley, supra, at 49.

You know as well as I do that many more such passages could be cited. Again, blatant intellectual dishonesty. Yes, the law is complicated, and was, as laid out in Citizens United, contradictory. Hence the need for clarification.

And there are ways to deal with the problem, a Constitutional amendment being one of them, public funding of elections being another (at least partial) one. The fact that getting the law into the shape you'd LIKE it to be is difficult in a practical sense is irrelevant to discussions of constitutionality.

Finding that the law was not narrowly tailored to preventing corruption (overruling Austin) was NECESSARY for their decision to strike down the law. So ultimately, it did come down to that distinction (as I said it did).

This does not mean there weren't other things they had to talk about before getting to that ultimate question. The quote you cited was merely about GETTING to the corruption/anticorruption analysis. They couldn't analyze whether or not to overrule Austin until they determined that 441b unambiguously applied to the given situation. Before they determined whether the speech suppression was narrowly tailored to preventing corruption, they had to determine that speech suppression has taken place (and that 441b applied to the video on demand production of the case, and that other rationales did not easily save the law, etc).

In other words, the decision was a series of steps:

1. **
2. **
3. **
4. **
5. Corruption/anti-corrutpion

where all steps prior to 5 had to be taken care of before getting to the ultimate question. To strike down the law, it is a necessary condition that 5 fails, but it is not sufficient -- they had to figure out the proceeding questions before they even got to 5 (which is why the opinion is so long). That is usually how judicial opinions of all kinds work -- there are many issues that have to be dealt with first before getting to the ultimate question.

You keep acting as if once it has been determined that political speech has been supressed, the law must be struck down. But this is entirely false, even in Citizens United (which did not strike down contribution limits, disclosure rules, etc.).

When you are in a hole, you should probably stop digging. Your factual analysis (i.e. your analysis of what questions the court had to answer and why) is so wrong that any first amendment scholar would laugh at you. Yet you are trying to call me intellectually dishonest (rather than admitting that you don't know what you are talking about).

that the Citizens united decision was NOT simply about corruption, in direct contradiction to your earlier statement. And did you forget to mention that corruption was not even a direct concern in the circumstances of the CU case itself?

And what I'm acting as if is that CU is not violative of any First Amendment principle, and that removing legislative restrictions on political speech is entirely in line with the Constitution. You keep trying to invent a non-existent principle to change that, but it's not working.

they could discuss the crux of the issue.



I'm not inventing anything. I'm merely citing the dividing line on these laws, which has existed since Buckley vs. Valeo articulated the anticorruption rationale in the first place in the 1976. Some speech suppression (such as suppressing contributions above a certain limit, suppressing non-disclosed speech, etc) is completely Constitutional, even after Citizens United. The dividing line is entirely about corruption -- the court decided that contribution bans above a certain limit and disclosure requires are sufficiently tailored to preventing corruption, while expenditure bans above a certain limit are not. Certain types of suppression is allowed, and other types of suppression are not.

Furthermore, you would know this if you have read any of the relevant opinions over the past several decades. I can only assume you are not familiar with the basic premises of campaign finance first amendment law, since you keep accusing me of "inventing" something. But rather than call you "intellectually dishonest" or "spreading falsehoods" or whatever, I will just suggest you read the relevant opinions before you do the same.



Yes, which is why the proper response of the court would have been to say that the law in question was unconstitutional as applied to ideological issue groups like Citizens United. This is what the court did in the past (in cases such as MCFL).

But that isn't what the court did. In an incredible feat of judicial activism, they went out of their way to ask for reargument to decide whether the law was facially unconstitutional in all cases (as opposed to simply as applied to ideological non-profit corporations such as Citizens United). This is even more egregious, because Citizens United is a very atypical group (the very group for which as applied rulings are most common).

So yes, corruption was not even a direct concern in CU, which is precisely why they should not have gone out of their way to address the broad issue in this particular case (and instead rule narrowly). Even some of Citizen's United most ardent defenders agree that they should never have decided the broadest form of the question in this particular case, and instead decided the law's facial constitutionality when a case came before them from a for-profit corporation (where concerns about corruption are at their peak).

is a belief that is hard core antifreedom in our political system. That money not only runs ads but also runs political campaigns and buys legislation. That in itself leaves out the democratic process and restricts people who cannot pay for the same advantages.

the Citizens United decision, please.

by any group or corporation. The problem most people here have is not that it allows more political speech, but that it allows more speech of a type they don't like, in favor of candidates they don't like. The First Amendment, however, makes no such ideological distinctions.

It may not be incorporated like a corporation might be, but functionally, they're the same. There's nothing wrong with a body of people having a representation politically speaking. It also enables non-profits or NGOs to be able to participate in Free Speech. I dunno how we allowed McCain-Feingold to sully our ability to speak as it did, frankly I think it signaled the decline of activism in this country.

that a certain segment of the voting population is incapable of being anything but voting puppets when confronted with corporate propaganda. But here's the thing...people are allowed to base their voting decisions on what we might consider to be right-wing, corporate propaganda, just as we are allowed to base our voting decisions on what others are equally convinced is left-wing, socialist propaganda. That's the "free" part of "It's a free country".

It is ultimately the fault of the voter if they believe corporate propaganda, rather than do their own research.

That doesn't mean Congress' hands are tied, however, in preventing a corporation from dominating the airwaves with their propaganda in the first place.

To you, a corporation could implicitly threaten a Congresperson with 1 billion dollars of negative ads if the Congressperson doesn't vote exactly the way the corporation wants, and there is nothing effective Congress can do about it.

Because those candidates have to sell themselves out to a certain extent to get that money. Yes I still support them because they are far better than the alternative, but I would rather that everybody ran in an election where money was not an issue so that everyone would be less beholden to big money. I'm not a constitutional scholar so I admit I don't have a good argument as to why the money = speech ruling in Buckley v Valeo is a poor argument, although I'm sure that many a constitutional scholar have made a good case against Buckley v Valeo. What I do know is that I wish Buckley v Valeo (and Citizens United for that matter) were not the law of the land because I think we would have a much more democratic political process if that were the case.