Court signals it may loosen campaign spending

[rockymountaindem]

Source: Associated Press

WASHINGTON – The Supreme Court signaled Wednesday it may let businesses and unions spend freely to help their favored candidates in time for next year's elections. Such a step could roll back a century of attempts to restrain the power of corporate treasuries in American politics.

Justice Anthony Kennedy, often the high court's swing vote, but a firm opponent of many campaign restrictions, at one point told the government's lawyer, "Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election."

...

Kagan, too, acknowledged that the government was unlikely to win the case outright and that the best it could do was hope for a ruling that might apply only to ideological groups like Citizens United.

"If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes," she said.

Read more: http://news.yahoo.com/s/ap/us_supreme_court_clinton_movie

---

Wow, this is going to end badly.

[polichick]

1. That would be disastrous for democracy. nt

[irislake]

40. What democracy?

You have Democracy in the US?

[Deja Q]

2. Corporations also have a vested and BIASED interest. **THAT** is why they are restrained.

Everyone has an interest, yes. But individuals can only contribute x amount of dollars.

If corporations are said to be the same as individuals, why give them special rights? (Right, Mr. Scalia?)

[glinda]

29. WHO gives them the right to make decisions for MY money????????

[The Wielding Truth]

3. Our only goal to survive would be to become a CEO. What's the %

that a regular Joe could be "Joe the CEO"?

[FatDave]

27. It's easy to be a CEO.

$200 to a competent lawyer. CEO of a publicly traded multinational corporation worth billions of dollars? A bit trickier.

[The Wielding Truth]

32. I think the title alone makes you immune to laws and taxes.

[FatDave]

33. It doesn't.

I know because I am one. I'm the CEO (and sole stockholder) of a 1-person corporation that does mostly contract programming (well, did, I'm leaving the industry). I manage to get screwed less than billing as a 10-99 contractor that way. The title doesn't help a thing, it's the billions of dollars that make the difference. And I don't have those.

Lot of programmers have their own corporations, since nobody will actually hire us as regular employees any more.

[ProudDad]

35. Yep, most are born into that...

It doesn't take a lot of "smarts", just connections and a good line of bullshit...

[Statistical]

4. The thing that will kill the govt (FEC) case is "strict scrutiny"

Most people aren't constitutional nerds but here is the quick and dirty.

Rights can not be taken away but the expression of rights can be constrained. Just because they CAN be constrained doesn't say all constraints are legitimate.

So how for example is a complete ban on guns in DC unconstitutional but allowing someone to be punished for yelling fire in a theater be constitutional?

Simple. Strict Scrutiny.

For a law to survive constitutional scrutiny it must pass a 3 point test.

http://en.wikipedia.org/wiki/Strict_scrutiny

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Most people just think of the first point. People die from gunshots so there is a public safety reason to ban guns = "compelling govt interest". Corporations have a lot of money and can influence politics so ban corp spending = "compelling govt interest".

Point one is the easy point though.

What kills most things is #2 & #3. A ban on all direct spending by all corporations (even very small ones) in all forms can't be considered "narrowly tailored" or "least restrictive means".

The govt has to prove #1, #2 & #3. The plantiff just needs to disprove one of the points.

[msongs]

5. law is designed to protect moneyed interests and screw everyone else nt

[rockymountaindem]

6. So if we lose on this, how can we prevent WalMart from cutting $10 million checks to their favorite

candidates? How can we stop Exxon from churning out its own campaign TV ads? Is that what is going to happen? Can it be stopped?

[Statistical]

8. It can... but it will have to be defined better.

I listened to oral arguments (I am the constitutional nerd) and the plantiff keeps going on and on and on about how the law is overly broad (point #2).

It does apply to Walmart and XOM but it also applies to a Union with 32 people in it and a mom & pop shop who incorporated to protect their assets (he threw out a stat that 98% of the 16,000 corporations have assets of less than a million dollars).

So IF the govt loses they would need to come up with a better defined law that meets points #2 & #3.

How? Well I am not a lawyer (I just slept at a Holiday Inn Express) so I am not sure but I am sure it can be done.

Heller v. DC shows a complete gun ban is unconstitutional however gun laws aren't all unconstitutional.

The govt has the line covering all forms of spending and all corporations and all ads (even honest ones) that overly broad statute is likely what will sink them.

[JohnWxy]

56. Corporations would bury every other speaker and buy up all available tv time. It would be the end of

free and open discussion of issues (not that it is free and open now, but what we have now will become only a fond memory once corporations flood the all channels with their high paid disinformation campaigns).

YOu won't be able to sue the stockholders of these corporations (for libel let's say) only the corporations themselves. think how long it takes to sue and the resources it takes to sue a corporation. OF course, by the time the suit is heard the damage has been done years before (look at the swift boating of John Kerry - and that was by a PAC).

[elleng]

11. Not being discussed at all.

http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=288797-1

[Statistical]

15. Not sure what you are listening to but...

this isn't kinder garden they aren't going to explain it to you they are talking to peers who understand the issue completely. The Supreme Court is required to follow strict scrutiny.

Not 2 minutes into oral arguments the words "narrowly defined" THAT IS A CODE for strict scrutiny (point #2). Anytime the plantiff argues overly broad or indicates the law applies to ALL corporations that is code word also.

When the plantiff points out that some corporations have an important message and are experts in an area and are restricted that is code for point #3.

It plainly obvious.

[elleng]

18. I am listening to the oral argument,

and I am an attorney and I know very well that when they're addressing cases they damn well use the words, and not code.

[Statistical]

19. You are an attorney and didn't recognize the test for strict scrutiny?

How about at the 0:58

"...the govt when acting to prohibit speech at the core of the 1st amendment has a heavy burden that there is a compelling govt interest that justifies that prohibition and the regulation adopted is the most narrowly tailored possible..."

You don't see that as points #1 & #2 from the strict scrutiny test? What did you think those were random words?

It can't be any more clear.

It is almost word for word from the Supreme Court precedent that defines strict scrutiny
US v. Carolene Product (1938)

http://en.wikipedia.org/wiki/United_States_v._Carolene_Products

I mean strict scrutiny is a cornerstone of modern constitutional law. This isn't even complex stuff but rather the basis for how Supreme Court operates.

You can't find a single book on Constitutional law that doesn't cover strict scrutiny and the exact words used are:

1) "compelling government interest"
2) "narrowly tailored"
2) "least restrictive means possible"

Since the precedent from Carolene stands the court is duty bounds to judge restrictions on fundamental rights on that basis.

You can't have a court case involving restrictions on fundamental rights that doesn't involve strict scrutiny.

The lawyers aren't going to use the term "STRICT SCRUTINY" everyone in the court room is already well beyond that point. Nobody is confused that it is THE test for restricting constitutional rights. To "explain" it to the Justices is both insulting and wastes valuable time (Justices already interrupt enough as it is).

[elleng]

20. I are an attorney,

and I appear to have missed :58.

However, they nowhere have discussed the nature of scrutiny they'll apply, and I think its a mistake to raise that as an issue here, at DU, to raise fear.

[Statistical]

21. my intent wasn't to raise fear.

Rather to indicate that if the govt loses it will be because of strict scrutiny not being applied.

Which means while a blanket prohibition all all funds for all ads by all corporations may be unconstitutional it doesn't mean a better definied law would be.

Can't ban all firearms but you can ban felons from having firearms
Can't ban all speech in a movie theater but can make speech that causes a panic/threatens public safety illegal

If the govt loses it isn't a lose and lose everything kind of verdict (as most fear on DU) but rather a "the govt went too far and needs to reign in the scope of the prohibition" loss.

How to word the law to be "narrowly tailored" and "least restrictive" while still accomplishing the goal that is the question and sadly one I have no answer for.

[Wizard777]

31. Yeah but they also like to use common sense. That also has to figure in there somewhere.

What is harm of reducing or depriving a corporation of having a voice in an election they cannot vote in? Do they care to give us a voice in their corporate elections? No they do not. If you don't have a share to vote. What you think is irrelevant. They don't a share or a vote in our elections. So why should they also have a voice? Does this deprive them of a redress of grievance? NO! They still have use of the courts to sue the government if need be. They still have use of lobbyists to persuade the government. You shouldn't have to be in the play to be in the audience. But you should have to be in the play to be on the stage speaking. Corporations are not in our election play. They don't have a vote to get them behind the curtain. So I do think the law is narrowly tailored in the grand scope of things. They don't have a vote or voice. Just like in their elections. So apparently the corporations themselves don't believe this be unreasonable.

[ProudDad]

36. There is NO common sense in the law...

It's mainly designed to protect the status-quo and the top 1% who profit from it...

[Statistical]

38. Common sense has nothing to do with the law.

Constitutional law is a very small subset of the law and very strict rules apply to the decision making process. Common sense has never and likely never will have anything to do with it.

You are throwing in a lot of different points but this doesn't have anything to do w/ redress of greivances so you can erase all that.

Corporations don't get a vote however they do have freedom of speech protection. This has already been established in the past and is accepted as precedent by all of the Justices.

So the question becomes does that freedom of speech protection extend to political ads also?

Remember the bill of rights (very poorly named) DOES NOT grant rights. It is a bill of restrictions. Restrictions on the govt. The 1st says "Congress shall make no law...." no law. No any law would be a violation of the first. Now via strict scrutiny SCOTUS has accepted that those restrictions can be reduced however to avoid trampling the right they need to pass "strict scrutiny" and that requires it to be "narrowly tailored".

The law in question applies to all corporations & unions of all sizes, on all expenditures (from $1 to $1 billion) on all ads in an election cycle. You think that the law is "narrowly tailored" however I will post the quotes in a new article but it is clear 5 of the Justices disagree.

The question is how far do they think that line needs to be moved. I don't think any of them beleive in no limit but rather the limit is not "narrowly defined".

[elleng]

7. Listening to argument now.

Discussing the many ways they could decide without dramatic results.

http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=288797-1

[rockymountaindem]

9. Could you condense some of them for me?

I'm not one with a legal mind.

[elleng]

13. Not at the moment!

You could read from NYT, but I'm not prepared to determine whether they got it right either!

http://www.nytimes.com/2009/09/10/us/politics/10scotus.html?_r=1&hp

[rockymountaindem]

17. That's even more discouraging

Good thing we made it so easy for Bush to put Alito on the court. Hell, good thing so many people voted for Nader, otherwise the corporations would have taken over the whole country!

[depakid]

10. Loosen?

:rofl:

Opwn up the floodgates.

[pam4water]

12. OT Deja Q That scrolling message is so annoying I had to add you to me ignored list.

On topic the court decisions that money = speech was a big part of getting us in the current mess.


OT: Can't send you a private message about as you have blocked private messages.

[earthside]

14. The end.

Imagine what the health care insurance companies will spend for the benefit of the Palin/Hannity ticket for their promise to repeal all Obama health care legislation.

If the Supreme Court goes this direction, it will mean the end of our democratic republic as we know it (and it ain't what it used to be now.)

This is a very big deal ... and it is not getting the attention it deserves.

[Umbral]

16. "businesses and unions" They say that like those two things are somehow comparable or equal. nt

[hay rick]

28. They would have equal freedom-

unions to spend pennies and businesses to spend dollars. If we get a truly adverse decision here, we'll get to see what's left of middle class America circling the drain in our own lifetime.

[varelse]

22. Perhaps it is time to speak directly to the corporations in their native language

$$$

[struggle4progress]

23. Surely the state has power to regulate its own inventions. There is nothing natural

about a corporation: it exists purely as a creature of the law, usually for the purpose of shielding its participants from lawsuits and liability

[elleng]

26. Correct, point made by/suggested by someone (fergit who.)

[elleng]

44. Noted by Justice Sotomayor!

'Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

But we can go back to the very basics that way, but wouldn't we be doing some more harm than good by a broad ruling in a case that doesn't involve more business corporations and actually doesn't even involve the traditional nonprofit organization? It involves an advocacy corporation that has a very particular interest.'

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=6509278&mesg_id=6509278

[struggle4progress]

52. Good on her! Not that the wingnut ideologues will listen ... eom

[MasonJar]

24. Oh, yes, Kennedy, corps have lots of info on the environment, like how to abuse it.

ETC. This will be a disaster and we have W to thank for this and the GOPer Senate who okayed these awful men.

[elleng]

25. UNTRUE AP HEADLINE.

NO SIGNAL given.

[krkaufman]

30. It may be ...

... that we need to take this huge step backward in order to make real progress.

[ProudDad]

34. The final step toward Fascism

If this goes the way it probably will...

We'll achieve the final corporate-state...

If you think shit is bad now, just wait...

The flame under the frogs in the water will be cranked up to high...

[scentopine]

37. The American worker and the Corporate citizen.

We are creating a fucking nightmare for ourselves and the world.

[amandabeech]

39. I have wondered if we will eventually need a constitutional amendment

to really get big private money out of the election process.

[bl968]

41. The problem is corporate personhood

What we need is a constitutional amendment removing the doctrine of Corporate Personhood. Once you get that taken away they have no free speech, can be easily regulated, and can be totally banned from spending money on political campaigns and lobbying.

[amandabeech]

43. I think that corporate personhood is acceptable in other contexts.

I'm also concerned about extremely wealthy individuals trashing the system, and abolishing corporate personhood would not do anything to keep those individuals from distorting the election process.

What I would really like to see are totally publicly funded elections.

[Jackpine Radical]

42. Public financing of elections is the door out.

[stevedeshazer]

45. Supreme Court could loosen cap on corporate political spending

Source: USA Today

WASHINGTON — The Supreme Court appeared poised to open the door to more corporate spending in political elections Wednesday, in a fast-paced special hearing over campaign-finance regulation.

If the conservative majority moves in that direction — which would mean reversing decisions that endorsed restrictions on corporations — it will not be without a fight. Liberals, including senior Justice John Paul Stevens, lodged vigorous counterarguments in the case that could transform the rules for corporate and labor union money in elections.

The special session revolved around a 2008 movie by the conservative group Citizens United that attacked Hillary Rodham Clinton when she ran for the Democratic presidential nomination. Hillary: The Movie presented 90 minutes of news clips and criticism of the former first lady. She lost the nomination to Barack Obama and is now secretary of State.

The case escalated during the presidential campaign when Citizens United sought to offer the movie through a TV video-on-demand service. The Federal Election Commission said it was subject to a 2002 law barring TV ads financed with corporate and labor union money close to an election.

Read more: http://www.usatoday.com/news/washington/judicial/2009-09-09-courtFEC_N.htm

---

This is a very big story running under the radar. The results of a Supreme Court decision could open the floodgates of hell in the form of unlimited corporate contributions to politicians.

And the so-called 'conservative' majority on the Supreme Court is poised to ruin American politics for good. As if things aren't bad enough already.

[tblue]

46. I'd forgotten all about this with the speech going on tonight.

Okay, so they're hearing arguments and don't have a decision yet. We so badly need to get corporate dollars out of our electoral process. Bill Moyers says that's our #1 problem as an electorate, and I have to agree with him.

[stevedeshazer]

47. This case could set that principle on its head.

http://www.kansascity.com/news/politics/story/1435104.html

<snip>

Supreme Court conservatives have upper hand

WASHINGTON | The Supreme Court signaled Wednesday it may let businesses and unions spend freely to help their favored candidates in time for next year’s elections. Such a step could roll back a century of attempts to restrain the power of corporate treasuries in American politics.

The justices cut short their summer recess for a lively special argument on whether corporations should have the same free-speech rights as individuals.

Based on Wednesday’s proceedings, it seems the court’s conservative skeptics of campaign finance laws have the advantage.

Justice Anthony Kennedy, often the high court’s swing vote, but a firm opponent of many campaign restrictions, at one point told the government’s lawyer, “Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.”

----

This is an impending disaster. I see no upside to this.

[Krashkopf]

48. It will take a Constitutional Amendment to Undue the damage . . .

that Roberts and the other corporatists are about to unleash.

The 14th Amendment would need to be amended to say that the Constitution applies only to NATURAL persons.

[Daphne08]

50. Is that doable?

It would end corporate personhood, wouldn't it?

I can't imagine that scenario although I certainly would like to see it.

[elleng]

51. VERY difficult to do.

Any amendment is so.

[Statistical]

53. Anything is theoretically "do-able"

However there is a reason why less than 1/2 of 1% of all proposed amendments ever get ratified.

2/3 vote in house
2/3 vote in senate (think how hard it is to get 60 votes now add 7 more).
ratification by 3/4th of states

[elleng]

49. I disagree with USA Today's 'Appears poised.'

At least, I think they'll look for other options. Decide for yourself. Here's the audio:

http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=288797-1

[wardhealer]

54. America Faces a Corporate Coup d'etat

It seems the Supreme Court is poised to rule that corporations are truly “people” under the law and as such, are protected by the First Amendment’s right to free speech. This will overturn over one hundred years of legal precedent and create a political imbalance of seismic proportions. The current ability of large corporate interests to influence legislators through their lobbyists will pale in comparison to the ability to directly participate in partisan politics that a Supreme Court ruling would allow. Literally billions of dollars could flow into efforts to defeat legislators who do not toe their line, thus drastically changing our nation’s political balance. The voices of average citizens, non-profits and even labor unions would be buried under an avalanche of corporate cash.

If a corporation is a person under the law…affirmed by a Supreme Court decision, then it follows that a corporation should be extended all other rights a person has under the law. This should include the right to vote in local, state and federal elections, in addition to the voting rights of the officers and stockholders of the corporation. If and when the Supreme Court issues the expected ruling, a sympathetic corporation should attempt to register as a voter and when registration is denied, file a federal lawsuit. A creative mind could imagine many more rights that personhood would bestow upon corporations. Such actions may be viewed as frivolous but would be newsworthy and serve to draw attention to the issue and hopefully spur an expanded debate.

The time has come for a Constitutional Amendment that would redefine the status of corporations. A campaign to advance such an amendment would have the advantage of the perfect sound bite and a simple mantra that every voter could understand.

Something must be done quickly. Such a ruling would effectively usurp the current moderate, liberal, progressive voting majority in this country and replace it with a permanent right wing majority in Congress and a permanent “lock” on the White House…beginning as soon as 2010 and 2012... all bought and paid for by major corporate interests. The establishment of a corporate state was a central tenant of our enemies in WWII. The threat to our Representative Democracy should be apparent to all.

[Zorra]

55. Fucking fascist traitors on the Supreme Court appointed Bu*h, and now this.

Maybe this is exactly why Bu*h was appointed - so corporations could own the SCOTUS, and use it to destroy our democracy.

[burrowowl]

57. OH! Damnit!

Kennedy is an ASS!
God save us if Corps have their say!

[Odin2005]

58. Any Justices that vote for this crap should be executed as traitors!

:grr: