Glenn Greenwald on Justice Alito
Beyond the issue of whether Justice Alito was substantively right or wrong when he mouthed at last night’s SOTU that Pres. Obama’s characterization of the Citizens United decision was “not true,” there is another issue that very few (if any) bloggers or pundits are discussing — and that is whether it was improper for Justice Alito to visibly react to what Obama said.
Glenn Greenwald is one of those few, and the only one so far that I have seen. His very interesting take on last night’s incident is that it was a far more serious infraction than was Joe Wilson’s outburst.
As I wrote at the time, I thought the condemnations of Rep. Joe Wilson’s heckling of Barack Obama during his September health care speech were histrionic and excessive. Wilson and Obama are both political actors, it occurred in the middle of a political speech about a highly political dispute, and while the outburst was indecorous and impolite, Obama is not entitled to be treated as royalty. That was all much ado about nothing. By contrast, the behavior of Justice Alito at last night’s State of the Union address — visibly shaking his head and mouthing the words “not true” when Obama warned of the dangers of the Court’s Citizens United ruling — was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court’s ability to adhere to its intended function.
There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” – all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.
Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline. On a night when both tradition and the Court’s role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow — a conservative Republican judge departing from protocol to openly criticize a Democratic President — with Republicans predictably defending him and Democrats doing the opposite. Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.
Something I did not know last night — and, frankly, did not even give a moment’s thought to — was just exactly where the SCOTUS justices were seated. Well, they were seated “at the very front of the chamber,” making it “predictable in the extreme that the cameras would focus on them as Obama condemned their ruling.”
Seriously: what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone’s speech, no matter how strongly one disagrees — let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President’s State of the Union address? Recall all of the lip-pursed worrying from The New Republic‘s Jeffrey Rosen and his secret, nameless friends over the so-called ”judicial temperament” of Sonia Sotomayor. Alito’s conduct is the precise antithesis of what “judicial temperament” is supposed to produce.
Furthermore, the points that form the bulk of the right-wing response to this story — that Obama got his facts wrong, and that he was the rude one for criticizing the decision in the presence of the Supreme Court justices — don’t wash, in Glenn’s view:
Right-wing criticisms — that it was Obama who acted inappropriately by using his SOTU address to condemn the Court’s decision — are just inane. Many of the Court’s rulings engender political passions and have substantial political consequences — few more so than a ruling that invalidated long-standing campaign finance laws. Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they’re well within the realm of acceptable political rhetoric and are far from being “false” (e.g., though the ruling did not strike down the exact provision banning foreign corporations from electioneering speech, its rationale could plausibly lead to that; moreover, it’s certainly fair to argue, as Obama did, that the Court majority tossed aside a century of judicial precedent). Presidents have a long history of condemning Court rulings with which they disagree — Republican politicians, including Presidents, have certainly never shied away from condemning Roe v. Wade in the harshest of terms — and Obama’s comments last night were entirely consistent with that practice. While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. And, as usual, the disingenuousness levels are off the charts: imagine the reaction if Ruth Bader Ginsburg had done this at George Bush’s State of the Union address.
There’s plenty more to Glenn’s piece; be sure to read the whole thing.
64 Responses to “Glenn Greenwald on Justice Alito”
I'm shocked, shocked to find Glenn Greenwald disagreeing with Justice Alito.
Yes, that's sarcasm, but I'll throw in a smiley to lessen the edge
The breach of protocol was Obama's, not Alito's.
Well count me in the club of “Something I did not know last night — and, frankly, did not even give a moment’s thought to” until I read Glenn's piece. I already pointed out in Jazz's post that Obama wasn't “totally wrong” but rather “barely true” with regard to the facts at hand (per the link to politiblog). Outside of that, Alito should have known better; after all, more people are worked up over his lack of protocol than they seem to be with regard to what Obama said.
You know on a similar note, aren't the Joint Chiefs of Staff supposed to be apolitical too? Check out this catch and see if you would call them acting appropriately. (h/t JMG)
Well is this grounds for impeachment then? Alito showed his partisan leanings. Is this grounds for him sitting “on bad behavior” as described in Article III Section 1?
They were both wrong and so were the JCS.
Personally I think they both breached protocol but I think too many people, particularly GG, are making a mountain out of a molehill here. There's nothing that says the two branches of government have to play nice together. I think if one takes the time to look at American history it will become obvious that this small event is minor no matter how much partisans on both sides want to blow it up and exploit it.
From a political angle, I'm not sure that calling the SCOTUS out like that was too smart because the media focus seems to be on that to the exclusion of the substantive elements in the President's speech.
Only in your delusional bizzarro world.
Now bleary eyed from reading the majority opinion in Citizens United, may I offer a few nuggets?
1. The Court expressly sidestepped the influence of foreign corporations question.
2. The Court acknowledged the constitutionality of placing dollar limits on direct contributions to candidates, but found that independent expenditures on behalf of, or against, candidates could not be constitutionally limited. Rationale: direct contributions might lead to quid pro quos, but “independent expenditures” could not. (?) The Court rationalizes, in other words, that one form of monetary “speech” is subject to limitation while another form of monetary “speech” is not. My opinion: so much for this case representing strict constructionism.
3. The Court conflates, as it has for decades, the expenditure or transfer of money with speech.
4. And here are my favorites, quoted from the Court's own synopsis, and repeated in Justice Kennedy's majority opinion:
(a) “The Court concludes that [unlimited] independent expenditures [by corporations] do not give rise to corruption or the appearance of corruption.”
(b) And that, even if it does give rise to the appearance of influence, “The appearance of influence or access will not cause the electorate to lose faith in this democracy.”
(c) The Court provides no reference to any evidence to support either of these “conclusions”, but simply asserts them.
In reading 4(a) and 4(b) above, does anyone, other than me, feel inclined to mouth the words “not true”?
Hey pal, a little respect? Ad hominem isn't well received 'round these parts. Besides, you're the one with a transvestite for an avatar.
Neener neener [see how conversations can degrade when you roll the little snowball downhill?]
Let's see how bizarre I am. From Article III, Section 1:
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“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
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The words “shall hold their Offices during good Behavior” aren't arbitrary. They are subject to Legislative review. I'm just wondering if the Legislature will interpret Justice Alito's antics [for a Supreme Court Justice not even allowed to clap or show any deference to or objection to a sitting president lest he disqualify his mandatory impartial status] as grounds for considering him on bad behavior?
Now stop calling me names and answer specifically why you disagree? Or is the US Constitution also “delusional and bizzarre”?
I watched the video and personally I think he mouthed “to blave”.
But seriously this is much ado about very little and it's peculiar this has turned into the focus post-SOTU.
Love the “Princess Bride” reference. Never get involved in a land war in Asia.
“delusional and bizzarre”?'
Maybe not, but overreaching no doubt, as pointed out by Tidbits. They in effect made new law (not a legal opinion, for which I charge two orange peels, DaMav charges three)
his is much ado about very little.”
It seems there are different size molehills for Dems in power, Reps in power and the rest of us.
I think the combination of O and Allito equal a medium (moderate) molehill.
But seriously (ha), extrapolating this erosion of protocol to when Chelsea becomes president, they will be throwing shoes and having fist fights (well maybe dueling walkers).
It IS delusion and bizzarro to believe that the 'bad Behavior' section of the Constitution is meant to cover anything like a spontaneous reaction to a slanderous comment by the President direct at the SCOTUS Justices that rendered a ruling of which he disapproved.
In the entire history of the United States, exactly 14 Federal Judges have been impeached, one of them an Associate Justice of the Supreme Court. Of those, 4 were acquitted, including the Associate Justice of the Supreme Court.
So 10 Federal Judges in our entire history have been impeached, convicted and removed from office, none of them SCOTUS Justices. All of those removed had committed either Felonies or Treason.
So sorry if you don't like my characterization, but there is no 'ad hominum' attack occurring here. Your position IS delusional, indefensible, with no basis in history or the law, and fits a pretty reasonable definition of bizzarro world.
So what do you have against a Sweet Transvestite from Transexual, Transylvania?
So come up to the lab. And see what's on the slab.
I see you shiver with antici… pation!
“it's peculiar this has turned into the focus post-SOTU”
Consider the peculiar-and-more (worse) reaction to the ruling itself, among many.
Right, so it is all Alito's fault for reacting when Obama was lying out of his behind. Good deal. Viva the Left Wing Narrative, where The One cannot be criticized.
“The Court rationalizes, in other words, that one form of monetary “speech” is subject to limitation while another form of monetary “speech” is not. My opinion: so much for this case representing strict constructionism.”
In my view, there is the slightly annoying distinction between campaign contributions and political expression. Sure, the left PRESUMES any such expression would be to the direct electoral advantage of a candidate…………but let us see that evidence. Guilty before proven innocent is now the creed of the left? The left would suggest political expression should now be verboten and to allow political expression is non-strict construction?
As for your disparaging of Kennedy, while he did not “attach” the evidence for your perusal, I believe he did make reference to a specific collection of documents that formed this evidence. Further, has it not been precedential to allow freedoms to remain unabridged unless evidence to the contrary is presented? What proof did the FEC offer that there was corruption or loss of faith. I don't think the burden of proof was on Kennedy on this matter.
Obviously, you don't read Greenwald a lot. Agreeing or disagreeing with Alito on the substance of what he mouthed is totally off Glenn's point.
Because you want it to be. Because you say so. No facts necessary.
It is nice to see you agree with me for once.
“It IS delusion and bizzarro to believe that the 'bad Behavior' section of the Constitution is meant to cover anything like a spontaneous reaction to a slanderous comment by the President direct at the SCOTUS Justices that rendered a ruling of which he disapproved.”~ Spinner-come-lately
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I wouldn't say that necessarily. It augments the pre-existing “bad behavior” which is factually incompetance at best, malignant intent at its worst. That is opening up our electoral process to foreign influence [shareholders, CEOs or even companies amongst "citizen corporation"] during time of war. And just after our most pernicious enemy, Osama Bin Laden vowed to use any means necessary to hurt us.
I'm sure Alito would plead incompetance if pushed to choose. So let's push him, and when he opts for that excuse, dismiss him as not fit to Sit.
You know on a similar note, aren't the Joint Chiefs of Staff supposed to be apolitical too? Check out this catch and see if you would call them acting appropriately.
No, I don't think it's appropriate behavior, although I have to say that the danger to the legitimacy, perceived and real, of SCOTUS rulings is more directly to the point of the tradition of the justices not reacting. There's an actual reason for it apart from just that it's not polite. The Joint Chiefs of Staff, if they show political reaction, it doesn't have the same connection to that point of independent judgment, because they're supposed to follow the president's orders, anyway.
That's just my personal opinion, though. I don't know offhand if there is an actual protocol tradition about the Joint Chiefs of Staff showing reaction during the SOTU as there is with SCOTUS.
ROFL! Funniest thing I've heard all day. “to blave”
The words I feel like mouthing are much stronger than “not true.” What you describe is judicial activism writ in gigantic letters. Which of course is what you said. And I agree. It's beyond me how five SCOTUS justices can just decide, arbitrarily, that corporate expenditures of money for political campaigns are not or will not lead to influence peddling, just because they say it won't. And then to go on and divine a lack of public concern even if it does lead to that, is just adding contemptuous insult to egregious injury. How can anyone look at that and deny that it's judicial activism?
By the way, as a lawyer, when you read a long court opinion, like this one, do you have some kind of speed reading method? Or are you just so used to the language that you can read it fast and understand it?
Alito is partisan biased jackass.
He is the only justice that refused to see the President when the President elect paid a house call courtesy visit to the Supreme Court. He is way out of his league and should not be a Supreme court justice.
Dum Dum Dubya appointed a bird of dum dum feather.
We need to focus on them. Alito is engaging in partisan politics.
“corruption or loss of faith”
Have you missed the polls for the last oh say nearly a decade? Presidents rise and fall but the legislative branch is not looked well on. Why you say, they are viewed as beholden to corporations and special interest groups via campaign donations. It is common knowledge that for the most part these are owned men and women and they own our nation and split it up to those that show them some love. This is also in many who do not vote choose to not bother, of course some really actually don't care but its not all that way. What we seem to be learning now is that even when we vote specifically for it the people do not get a seat at the table to help fix the mess that has been made. Not only is this dangerous lesson for the citizenry to learn combined that with the unhappy acceptance that our politicians are owned and I think we are sitting on a powder keg and vote though they might it will not get any better. I on the other hand will not be surprised if nothing happens as I already know what America is and always has been, its not a nation its a business but talking about nation real proud can often increase sales.
Kathy,
For days I have been describing this as judicial activism. It is not just the nature of the opinion, but how it came to be. Citizens United asked the Court to determine that its distribution method did not fall within the campaign finance laws. As briefly as I can. CU's distribution system was to offer the video on a cable pay-per-view through a cable outlet called “Election '08″ and advertise to get people to to order the movie (at no charge). Their original argument was that on an obscure cable outlet, where people would have to find that outlet and order the movie, they would likely not reach 50,000 people in a voting district (the statutory limit) within 30 days of election (the statutory limit). Instead of hearing the case on that basis…what CU wanted…the Court on its own motion demanded to hear the case on the far broader terms reflected in its opinion. This is based on the retirement of Sandra Day O'Conner and her replacement by Alito. For reference see the 2003(I think) McCullough case where O'Connor was the fifth vote, there upholding similar provisions of campaign reform. This procedural context is every bit as judicially activist as the decision itself.
The next part I hope Casualobserver will read, and every other conservative who pretends that this case represents strict constructionism.
For days I have been admonishing liberals and conservatives alike that this case represents a plausible interpretation of the First Amendment, and it does. But here I will direct my remarks specifically to those who demand that this case is strict construction of the Constitution.
The great false assumption underlying the claim of strict construction is the conflation of money and speech. Money is not speech. I speak from my mouth; I keep my money in my wallet. If you want a video of me speaking you should focus your camera on my face. If you want a video of me reaching for money to purchase goods or services, you should focus your camera on my left butt cheek. They are not the same. And that is the great lie, the great sleight of definitional hand, that the Court and the so-called strict constructionists don't want anyone to see.
Money can purchase a megaphone, a commodity. That commodity amplifies your voice; it has no effect on your right to speak. The right of free speech does not include the right of speech amplification. It guarantees your right to speak freely; it does not guarantee your right to speak through a megaphone. The court has engaged in the definitional fiction that money and speech are the same thing for decades. It was, is, and always will be a ruse.
The distinction between campaign contributions and “independent expenditures” is a distinction without a difference. If I give you $1 million as a direct contribution or spend $1 million independently to support your election (or trashing your opponent), I will have your ear after the election. And if I don't have your ear, you better be very worried that next election the next $1 million will be used to defeat you. That's human nature, not rocket science. For the Court to say that one is corrupt (direct contributions) and the other is not (independent expenditure) is utter illogic. FYI, the Court recognized both forms of money spending as “speech”, but said one could be abridged, the other not.
Closing with this: The constitution guarantees that the right to free speech cannot be abridged; it does not guarantee that the right to spend money cannot be abridged.
PS: No speed reading, just understanding the language and the nature of the arguments.
“Now bleary eyed from reading the majority opinion in Citizens United”
At least you're one of the few who has read it. Reading it in detail isn't required to understand what is _obvious_, but it's interesting to read the obvious, nevertheless. It also makes me think about how even the orthodox liberal media was upset by the Obama administration's treatment of Fox in past months, and what these Dems might do if the Court had ruled in favor of government censorship (not only related to elections, but as standard practice).
For those who still need to, or who want to, read the obvious, restated by the Court:
“[T]he Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.”
“[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech. … [This is an] ongoing chill upon speech that is beyond all doubt protected[.]“
“The First Amendment provides that 'Congress shall make no law . . . abridging the freedom of speech.'”
“The law before us is an outright ban, backed by criminals anctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.”
“Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak.”
“And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur …”
“PACs have to comply with these regulations just to speak.”
“Given the onerous restrictions, a corporation may not be able to establish a PAC in time tomake its views known regarding candidates and issues in a current campaign.
Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. … Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.”
“If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.”
“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. … The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” … For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.”
“Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
“We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”
“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
“The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”
“[U]nder the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment.”
“There is simply no support for the view that the FirstAmendment, as originally understood, would permit the suppression of political speech by media corporations.”
“The censorship we now confront is vast in its reach.”
“The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public.”
“The speech that §441b forbids [...] is public, and all can judge its content and purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.”
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
“When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.”
“The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. [...] Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech. The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democ-racy.””
“Those reasons are sufficient to reject this shareholder-protection interest; and, moreover, the statute is both underinclusive and overinclusive. As to the first, if Congress had been seeking to protect dissenting shareholders, it would not have banned corporate speech in only certain media within 30 or 60 days before an election. A dissenting shareholder’s interests would be implicated by speech in any media at any time. As to the second, the statute is overinclusive because it covers all corporations, including nonprofit corporations and for-profit corporations withonly single shareholders. As to other corporations, the remedy is not to restrict speech but to consider and explore other regulatory mechanisms. The regulatory mechanism here, based on speech, contravenes the First Amendment.”
“No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
“Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.”
“The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”
“The text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.”
“A speaker’s ability to persuade [...] provides no basis for government regulation of free and open public debate on what the laws should be.”
“Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.”
“Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are _not_ covered, but places the burden on petitioners to bring forward statements showing that they _are_. [...]
The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak. [...]
Historical evidence relating to the textually similar clause “the freedom of . . . the press” also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection.”
“[T]he individual person’s right to speak includes the right to speak _in association with other individual persons_. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”"
“The Amendment is written in terms of 'speech,' not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is 'speech' covered by the First Amendment. No one says otherwise.”
DLS,
Why do you leave out the parts where the court conflates money with speech? Just asking.
By the way the “”[T]he Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.” line is pure CYA bullpucky,an excuse to justify going where the Court wants to go, as any respectable, and even marginally objective attorney, would tell you. Same BS so often used by liberal activist judges for years to go where they wanted to go. Oh, you also left out the part where Kennedy says they could do it narrowly, but it would be more difficult and take many years to fully iron out…so they do it with a meat ax instead (those weren't his exact words). That's more activist judicial BS to justify going where they want to go instead of employing judicial restraint.
dear DLS, would you please just quote a couple paras and give a link, so readers dont have to scroll and scroll? Appreciate it.
thanks,
dr.e
I wish that you were on the Supreme Court, tidbits.
Good idea, dr. e,
Here's the link so no one has to read just selected passages. Be forewarned it's 183 pages.
http://www.fec.gov/law/litigation/cu_sc08_opini…
Alito was correct, it wasn't really the full truth:
Factcheck.
http://www.politifact.com/truth-o-meter/stateme…
“Money is not speech.”
This lies at the heart, or core (literally — “coeur”) of the dissent. They're fundamentally wrong, for as the Court ruling and concurrent opinions emphasize, what matters here is the purpose and especially the effect of the law — government censorship of political speech is (obviously) unconstitutional.
The dissent concentrates on money and sidesteps the speech protection view. The dissent's complaints about corruption are irrelevent and in places “corporation-bashing,” which was demolished by Scalia's concurring opinion (which also addressed what truly matters with corporations). There was no need, as a result, for me to quote the rebuttals in detail of this dissent from the ruling and concurring opinions, above. There is also a procedural question involved here, which I don't understand, but which as framed by the dissent might be a (real) basis for arguing the ruling is activist.
And guess where Obama and other Dems got their “floodgates” metaphor from?
“The real issue in this case concerns how, not if, the appellant may finance its electioneering.”
“The basic premise underlying the Court’s ruling is itsiteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. … The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.”
“Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”
“Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
“The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.”
“Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able tospend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions—and the narrow interests they represent—vis-à-vis the role of political parties—and the broad coalitions they represent—in determining who will hold public office.”
“Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. [...] Indeed, the majority invokes the specter of a “ban” onnearly every page of its opinion. [...] This characterization is highly misleading, and needs to be corrected.”
“The second pillar of the Court’s opinion is its assertion that “the Government cannot restrict political speech based on the speaker’s . . . identity.” [...] Like its paeans to unfettered discourse, the Court’s denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality.”
“The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.”
“The election context is distinctive in many ways, and the Court, of course, is right that the First Amendment closely guards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled.”
“The same logic applies to this case with additional force because it is the identity of corporations, rather than individuals, that the Legislature has taken into account.”
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to som eremarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by“Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
“In any event, the text only leads us back to the questions who or what is guaranteed 'the freedom of speech,' and, just as critically, what that freedom consists of and under what circumstances it may be limited.”
“The truth is we cannot be certain how a law such as BCRA §203 meshes with the original meaning of the First Amendment.”
“A century of more recent history puts to rest any notion that today’s ruling is faithful to our First Amendment tradition. At the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act, ch. 420, 34 Stat. 864, banning all corporate contributions to candidates
Over the years, the limitations on corporate political spending have been modified in a number of ways, as Congress responded to changes in the American economyand political practices that threatened to displace the commonweal.”
“In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to “‘[p]reserv[e] the integrity of the electoral process, preven[t] corruption, . . . sustai[n] the active, alert responsibility of the individual citizen,’” protect the expressive interests of shareholders, and “‘[p]reserv[e] . . . the individual citizen’s confidence in government.'”
“While it is true that we have not alwaysspoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society.”
“There are threats of corruption that are far more destructive to a democratic society than the odd bribe. Yet the majority’s understanding of corruption would leave lawmakers impotent to address all but the most discrete abuses.”
“Unlike the majority’s myopic focus on quid pro quo scenarios and the free-floating “First Amendment principles” on which it rests so much weight, this broader understanding of corruption has deep roots in the Nation’s history.”
“When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.”
“[T]he consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.”
“The majority cavalierly ignores Congress’ factual findings and its constitutional judgment: It acknowledges the validity of the interest in preventing corruption, but it effectively discounts the value of that interest to zero. This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.
Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures.”
“The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it.”
“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”
“It is an interesting question 'who' is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation’s electoral message will _conflict_ with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.”
“In short, regulations such as §203 and the statute upheld in Austin impose only a limited burden on First Amendment freedoms not only because they target a narrow subset of expenditures and leave untouched the broader “public dialogue,” but also because they leave untouched the speech of natural persons.”
“The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm, Austin, 494 U. S., at 659, may translate into special advantages in the market for legislation. [...]
In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.”
“The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against eachother. There are, to be sure, serious concerns with anyeffort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to “First Amendment principles” depends almost entirely on the listeners’ perspective, it becomes necessary to consider how listeners will actually be affected.”
“The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”
“When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill.Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions.”
“The Court dismisses this interest on the ground thatabuses of shareholder money can be corrected “through the procedures of corporate democracy,” and, it seems, through Internet-based disclosures. I fail to understand how this addresses the concerns of dissenting union members, who will also be affected by today’s ruling, and I fail to understand why the Court is so confident in these mechanisms.”
“The shareholder protection rationale, in other words, bolsters the conclusion that restrictions on corporate electioneering can serve both speakers’ and listeners’ interests, as well as the anticorruption interest. And it supplies yet another reason why corporate expenditures merit less protection than individual expenditures.”
“In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majorityof this Court would have thought its flaws included a dearth of corporate money in politics.”
It was also shameful how the president attacked the Supreme Court during the SOTU address. Pretty darn awful breech of decorum. You would expect more from someone who claims to be trying to unify the nation.
“please just quote a couple paras and give a link”
Yep. Noted and filed.
thanks DLS and Tidbits
Appreciate it
dr.e
Leonidas,
Don't wish to be argumentative, but click on the link in this article to see that other presidents have done the same in the State of the Union. It is not unprecedented, or out of decorum.
This from memory…hope I get it close to correct. Harding called on Congress to pass a Constitutional Amendment to overturn Supreme Court rulings on child labor laws. FDR called out the “Judicial Branch” for interfering with the New Deal in a State of the Union…and a month later introduced his court packing scheme. Reagan called for a Constitutional Amendment on school prayer in a State of the Union to overcome Supreme Court decisions and, in the same State of the Union, took a sideways swipe at the Court by pointing out that they started their sessions with a prayer.
Please don't tell me you think it's ok for some presidents, say Reagan, to attack the Court and call for legislative action to overcome its ruling, but it's not ok for this president to do so. I know you are more fair than that.
“Why do you leave out the parts where the court conflates money with speech? Just asking.”
I zeroed in on the core elements of both the ruling opinion and the dissent.
The ruling opinion's main point is that this law is censorship, and it's unconstitutional. I agree with it. There's no justification for regulating honest, non-malicious content, much less within 30 days or 60 days of an election, for example.
The dissent is clumsy but it comes down to who has free speech and if, in fact, there is a distinction between “natural persons” (“individual Americans”) and corporations (or any other organization identified for regulation of conduct). The source of speech, in other words, is relevent to the dissenters. (The scope of regulation of corporations obviously isn't limited only to speech.)
“By the way the '”[T]he Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.' line is pure CYA bullpucky,an excuse to justify going where the Court wants to go, as any respectable, and even marginally objective attorney, would tell you.”
I was noting the nature of the laws, and their purpose and effect insofar as it affects speech.
“… so they do it with a meat ax instead (those weren't his exact words)”
I selected the dissenters' analogue instead: “sledge hammer instead of a scalpel”
My own view: I believe the heart of the Court's ruling opinion was good — the law was a form of censorship of political speech. (As was noted, it wasn't limited to business corporations of the typical Evil Big Business kind, but applied to other organizations as well.) I'm not arguing here against regulation of corporations, or where the federal government legitimately has a role here, with federal election and related campaign law. There can't be censorship, though. 30-day periods 60-day periods, content rules? No. Truthful content, yes. Disclosure and identification, intrusive but also, yes. Content rules, different types of ads permitted or prohibited, different times for different ads? No.
I do not understand the “facial inquiry” and as it was a decision of some kind by the Court which was at the Court's discretion, I cannot rule out charges of activism here (what was the motive and the rationale(s) for having that inquiry?). I noticed in the dissent that there was complaining about this “facial inquiry” but nowhere did I see such language as to indicate complete outrage or shock at the ruling opinion, just disputing it.
DLS,
Thank you for presenting a (very long) glimpse at the other side of the argument. I close by repeating what I have said previously: this close 5-4 decision is one plausible interpretation of the First Amendment, but, it is not strict construction or judicial restraint.
I shall sleep better tonight knowing we have disagreed.
Moderate voice? KATHY KATTENBURG never has a centrist opinion. Always and very predictably from the left.
I wouldn't come back for next year's beating if I were S. Alito.
RightKlik,
Moderate Voice doesn't mean everyone is the same shade of pale gray, just that many views are represented. Heck, these fools are even silly enough to let a dolt like me comment. You're welcome too, though one of the rules is not to personally attack authors or other commenters (just a tip).
To address the silly arguments put forth by those who despise the 1st Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
1. Take special note of the words “NO LAW”
2. Let that sink in.
3. The First amendment is not just about “speech” It's about freedom of communication. It's about freedom of assembly (you can assemble as an evil corporation if you wish). It's about redress of grievances (no exceptions for redress of grievances by groups of individuals known as corporations).
So a group of people assemble and form a corporation. They redress grievances in print, online, and over the airwaves. What part of the 1st amendment provides wiggle room for the government to stop that?
There is no wiggle room.
If you don't like the first Amendment, the only thing you can do about it is to amend the constitution.
Tidbits,
“Why do you leave out the parts where the court conflates money with speech?”
Actually, I didn't. At least, not from the essential part of the ruling. And even here, it's not the cost or the money that's really the issue, but the barriers to speech.
“Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. [...] A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. [...] PACs have to comply with these regulations just to speak. [...] PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.
Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech.”
I'm more concerned with restrictions on certain content, and a deliberate suppression
of political speech: “electioneering communication”; speech that expressly ”refers to a clearly identified candidate for Federal office” for support or opposition.
I don't view it as money versus actual expression; instead, I suppose it remains an intractible argument: it's obvious that honest political speech shouldn't be suppressed (censored), and the ruling opinion is correctly states that the law in question is censorship, whereas the others say it's not censorship of what, but actually of whom, that should be the real issue. (For many want to keep big money out of politics to fight corruption. It's not just a bunch of rabid corp-hating show-stealers that this is entirely about, I understand.)
NOTE: I omitted Thomas's contribution. To me, it was odd — regarding threats and acts against supporters of CA Prop 8, and comments about disclosure requirements.
” it is not strict construction or judicial restraint.”
I don't know anything about the “facial challenge,” but it was something the Court chose to do, and it claimed that it needed to because delay was harmful (does that sound familiar, circa late 2000?). That precedent was overthrown is the opposite of restraint, but neither that nor increasing the scope of the ruling is conclusive. But in addition, this was due to a court decision to increase the scope of the ruling, and a motive for rushing was named, which obviously points toward the opposite of restraint. Even I can discern something like that.
Yet she isn't above taking a whack at Chris Matthews or John Edwards if she thinks they deserve it. She's got scruples and I respect that. Enough said by me lest I inadvertently tarnish her rep among the left.
Attack?
Are observations allowed?
I still say Kathy needs that hat — that Che Guevara beret, or Liza Minelli top hat, or a beatnik hat.
A Hat for Kat…
* * *
“Harding called on Congress to pass a Constitutional Amendment to overturn Supreme Court rulings on child labor laws.”
Obama prattled about “working with Congress” or something to that effect to try to achieve the same thing that the Court struck down. I don't like it, but something like it is certainly possible. Judicial review (normal, excessive, activistic) can be limited, if only Congress did its job in such matters. That is the problem. Can Congress be trusted to do its job with much, at all, and refrain from doing too much?
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
*** with such Exceptions, ***
and under such Regulations
as the Congress shall make.”
I read Greenwald more than you think. I think he is wrong on most of his positions but I respect that he is at least principled. For example he was one of the few who expressed clear and unequivocal outrage when Obama caved in on his promise to oppose immunity for the telecomms back in the FISA war days. To his credit he doesn't bend a great deal for political expediency.
At the same time I am hardly surprised at his disdain for Alito because the two are ideological opposites. Nobody is perfect, and I think some of this colors his opinion in this instance. That's my opinion, probably different than yours — no surprise there either.