U.S. Financing of Elections

1. E.J. Dionne http://www.tnr.com/article/politics/brittle-activists#comments

Me:

What hysteria from the liberal left here.

There is no problem with Obama heartily criticizing the decision.

There is plenty of problem him doing it as he did when the justices were sitting there as a captive audience consrained by convention to be impassive; and there is plenty wrong with Obama, I presume knowingly, getting the decision wrong for the sake of rousing the troops, his base and so on and being focus-group-tested feisty.

Good for Alito reacting in visceral disgust at Obama's purposeful, I presume, distortion.

Also Dionne is off base in thinking that it's good for Obama to take it to the court as he did and let it know that it has him and his administration to contend with. Last I heard the court is a coequal branch of government that can't be cowed by Obama's bad faith attempt at making political hay at its expense (or by anything else it he might do). That can only serve to set up an equal and opposite reaction from the court at a time of its choosing.

Further, trust knee jerk left liberals to protest so loudly about a SCOTUS conservative hegemony when you'd hear nary a whisper from them during times of liberal hegemony. (Which, generally, is Richard Posner’s theory of the court as an institution of outcomes from both the right and the left, whoever has the juice at any particular time.)

Finally only a knee jerk will call Alito a judicial thug and point to his opinion in the Firefighters' case as proof, which, while one may not agree with it, is entirely defensible as a piece of legal reasoning.

Me:

1. Obama's characerization of the SCOTUS decision was wrong.

2. And to the extent that people are arguing that a constitutional ruling can be gotten around by legislation, they are wrong. So if SCOTUS rules that 2 U.S.C. Section 441a, is unconstitional as a violation of your First Amendment. Legislation can't fix it.

3. Finally and *least importantly*, you misunderstand my hegemony point. I never suggested that conservatives didn't protest liberal sway on the court when it existed. I said the exact opposite: liberals didn't. It's an institution of outcomes and principled reception of its decisions go out the door except maybe in law journals and such. If "impeach Scalito" was meant to convey something I missed--I don't study your posts as though they're legal briefs--I'll substitute the depth of "Alito is a thug" for it, uttered before my time on this thread.

Roidubouloi:

1. I don't know what basis you have for characterizing Obama's characterization as "wrong." There are many who think that the decision will open a flood of corporately sponsored third-party adds designed directly to influence the outcome of elections. You may not agree, but at this juncture it would be impossible to say that this is wrong.

2. As to this, you are quite wrong. The particular statute is unconstitutional as applied to the litigants before it. Just as courts distinguish particular cases before them from precedents that may appear rhetorically applicable but can be distinguished on the facts, Congress can seek to fashion a statute based on different factual predicates than the ones presented in the earlier case. This is just what conservatives did with their statute prohibiting intact dilation and extraction (what possible Federal jurisdictional basis was there for that?) and succeeded in the face of Roe v. Wade. All the more so since the court is not immune to criticism and not generally looking to find itself in a head to head conflict with the Congress and the president. In the 30s, the court retreated. In the face of a resolute Congress, it would do so again.

While as a pure abstraction one can correctly state that a statute cannot overcome a constitutional ruling, there never exists any definitive account either of the Constitution itself or of opinions interpreting the Constitution. Thus, it is always open to the legislature to present the court with a different fact pattern, and you are not in a position to say with certain what the court would do.

Let us suppose, for example, that the Congress found, as is generally understood to be the case, that corporations are a species of trust for their shareholders and that allowing for-profit corporations to spend the money of their shareholders on election campaigns would be a violation of the rights of any shareholders who objected to that speech while also undermining the free flow of capital. In response, Congress decides that a corporation may only spend on political speech the aliquot share of net assets that constitutes the equity of shareholders who explicitly give their consent, and that any money so spent must be charged to consenting shareholders as a constructive dividend for tax purposes. Then the corporation must furnish those shareholders with a 1099 and redeem a fractional part of their shares so that only those shares would be charged the cost of the political speech. Would that violate the First Amendment "rights" of corporations (an oxymoron I know, but the morons are the reactionary justices)?

It would certainly create great practicable difficulties for a corporation wanting to engage in political speech, but would have as the perfect justification that the cost be charged only to those who share in the views expressed, not to those who don't. Unless that is the court is prepared to find that a corporation is an actual person and may not be burdened by such responsibilities to its shareholders. The court would hate it because the reactionaries are drunk with their own power and cannot imagine being frustrated in their power grab by the elected representatives of the citizens of the United States. But I don't think they have a shred of a basis for holding such a statute unconstitutional. They might try to up the ante by making up one of their typical phony opinions a la Bush v Gore. But I think they would retire from the battle.

3. I you are convinced that the Supreme Court is purely ideologically and outcome driven and that constitutional construction is a fiction, then there is every reason for the court to be attacked mercilessly for its politicized jurisprudence. The conservatives have demonstrated that this is a very successful tactic and there is no reason in a political fight for the left unilaterally to disarm be allowing this tactic to be the exclusive preserve of the right. Moreover, since, by your lights, the justices are purely political creatures hiding in robes, there is no reason to spare them whatever political rhetoric is effective. In addition, these conservative justices are uniquely dishonest.

I defy you to find "liberal" courts declaring rules of decision that they don't actually follow purely for the purpose of discrediting opposing legal views. This is a typical scummy, lying Republican tactic. No wonder the reactionaries engage in it. The truth is that their declared rules of decision are impossible to apply and serve only to relieve them of the responsibility for anything that resembles authentic legal reasoning. As they are frauds, not only must they be excoriated, but they personally deserve it. Alito in particular is a racist prick who lied to the Senate in order to be confirmed. His opinions are rife with transparent hypocrisy. He is as politicized as any justice has ever been and has fully earned the appellation of thug. It would suffice if that is effective political rhetoric, but Alito fully deserves it.

Me:


1.

From what I have read and gathered:

The Citizens United case dealt with a blanket ban on corporate expenditures. SCOTUS struck down the ban, part of 2 USC 441b. A separate section, 2 USC 441e, prohibits “foreign nationals” from making expenditures or contributions. “Foreign nationals” includes corporations not incorporated or headquartered in the U.S. That applies to any U.S. election and to any activity “in connection with” an election. SCOTUS didn’t touch that and Kennedy is explicit that he makes no judgment about foreign corporations.

That allows a U.S. company, incorporated and headquartered in the U. S. to make expenditures.
But FEC regulations at 11 CFR 110.20 further specify the prohibition:

“A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.”

Also, the FEC requires that any funds so spent come from U.S.-generated income. Therefore a foreign-owned but U.S.-incorporated-and-headquartered subsidiary, using U.S. funds, controlled solely by U.S. nationals, make expenditures. But, such a corporation can eligible operate a PAC — which can make unlimited expenditures and also make contributions directly to candidates (under the same restrictions of U.S. funds managed by U.S. nationals) — and to spend unlimited sums from any source. Its executives and managers who are U.S. citizens or lawful permanent residents (i.e., the same people who would have to decide on any corporate spending) are already eligible to spend unlimited sums on U.S. elections.

So claiming that the Citizens United decision allows “foreign corporations to spend without limits in our elections” is as misleading as saying that “Obama and the Democratic Congress have allowed foreign corporations to spend without limits in our elections.” The corporate ban is not about foreign contributions, and the government never tried to defend it as such. To suggest that SCOTUS allows foreign expenditures in elections is wholly misleading and wrong.

2.

Your arguments here are paper thin. First, SCOTUS went out of its way to expand its ruling beyond what issues were put before it and beyond how the parties had framed the issues. Secondly, and in part exactly because of how it went beyond the issues before it, the ruling is not a function of the facts of the case—your nonsense about factual predicates—it is a straight forward ruling: U.S. corporate funding of independent political broadcasts in candidate elections cannot be limited as a matter of free speech. There is no legislative fix to this; nor will there be. Thus the calls for legislative solutions are misconceived. If not devise one that is better than what you proposed, which is neither entertaining nor illustrative of acumen.

Your example is unreal. 1. Substantively, Congress would never find, even for these purposes, that a corporation is a “species of trust for shareholders” because that would defy deeply ingrained legal understandings of what a corporation is—an entity apart from its shareholders; 2. Practically, for public corporations—which are the practically real subjects of the court’s ruling—your proposal would be so unwieldy and complicated that it would never see sunshine; 3.Politically, just as the court’s ruling applies to unions, so the isolation of the willing shareholders would need, politically, a parallel in the isolation of willing union members and no Democratic party dependent on Unions and seeing working people as a vital Democratic constituency is going to do that.

But by all means keep em’ coming.

3.

…In addition, these conservative justices are uniquely dishonest. I defy you to find "liberal" courts declaring rules of decision that they don't actually follow purely for the purpose of discrediting opposing legal views. This is a typical scummy, lying Republican tactic. No wonder the reactionaries engage in it. The truth is that their declared rules of decision are impossible to apply and serve only to relieve them of the responsibility for anything that resembles authentic legal reasoning. As they are frauds, not only must they be excoriated, but they personally deserve it. Alito in particular is a racist prick who lied to the Senate in order to be confirmed. His opinions are rife with transparent hypocrisy. He is as politicized as any justice has ever been and has fully earned the appellation of thug. It would suffice if that is effective political rhetoric, but Alito fully deserves it.. .

We had a stupid go around like this with Elliott Abrams not that long ago. This kind and level of rant is of no interest to me and wastes my time and ought to be beneath you. As proof: one cheque your mouth wrote that you can’t cash is your absolute inability to cite one bit of any opinion that betrays Alito as a “racist prick.”

Post Script--personal note

You need to be more measured, in my case, about attributing political and ideological positions to me, who you do not all know. In fact, I am in principle in favor of the British system of—as I understand it—publicly financed elections, which Obama opted out of as I remember it after pledging to use that system. I think the impact of money on your country’s politics is an abomination