Worst SCOTUS Decision of the Decade, Hard to Top


#41

Man, I just read your link in full. There wasn’t even any evidence or analysis in it. His argument is: 1) Americans are not lemmings, 2) the founders didn’t want free speech abridged. Its not even responsive to the context of this discussion. He claims there is little effect and then offers no analysis.

The argument, in full, in case anyone else wants to see the “depth” of that link:

This hyperbole betrays a belief—common among proponents of restrictions on political speech—that Americans, like lemmings, are merely dull creatures who can be easily led off a cliff. Thus, unless the government “protects” us from hearing corporations’ speech about politics, we’ll always vote in ways that benefit corporations because they will spend lots of money to convince us to do so.

This conclusion is as ridiculous as it is patronizing. If corporations are capable of making the public do their bidding, then why isn’t everyone driving their Edsels to Circuit City to purchase Betamax video recorders?

The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection” from it.


#42

Like I said, when I joined this forum on 2004 you had already leveled all the same attacks against me. You’re a hypocrite. Pure and simple.

You’ve made repeated, by name personal attacks at me at great length on this forum. Your personal attacks are larger than your time spent on anything close to substance by about 3:1. I have made exactly ZERO responses in kind to you. I have even taken care to keep my references to your name in accord with the pseudonym you chose, a very simple courtesy you have consistently denied to me.

Nice to see that you can display hypocrisy shamelessly at the very same time you condemn it. I’m not criticizing you for double standards because other people did it in the past. I criticize you for double standards because you’re doing it right now. And you started right from your very first mocking post on this thread, as you personally have done before.

Right now, the only thing you’re doing about my impression of hostile ideological group-think on this forum is confirming it. This kind of ad hominum reaction is exactly what the theory of group-think would predict in response to criticism.

It would be so easy to refute the impression of group-think on this forum – just one thread where the progressive viewpoint was not instantly and automatically presumed true and where dissent was not instantly and automatically condemned in the most extreme and personal terms.

So far, it hasn’t happened. So, yeah, I’m condescending. I don’t think droning demagoguery deserves worship.

P.S. The exact same criticism you post towards ONE of my links could be extended at the content of yours, which were equally conclusory and non-responsive to the very substantial posts I originally posted. But there I go again, identifying those double standards you’re using. Clearly, I’m a bastard.

P.P.S. As for substance, I renew my point about the difference between procedural and substantive equality in the exercise of legal rights. That point has been consistently ignored, even while reiterating arguments based tacitly on the presumption of substantive equality as a criterion. Very bad debate, that.

P.P.P.S. I had friends who are progressives who I enjoy arguing with and even, on quite a large number of issues, agreeing with. Those progressives are principled, open-minded, intellectually honest, and capable of conceding the possibility of principled disagreement on the other side. The ones here, not so much. If you want to change that impression, you can do it quite easily and I’d be happy to see it.


#43

this thread is TL;DR so i haven’t read much of it, but it seems like this is a poor decision in legal/jurisprudential terms because the court declined the opportunity to make a narrow ruling and instead decided to topple decades of settled precedent, particularly in light of the court’s decisions in austin v michigan chamber of commerce and and mcconnell v. FEC. it’s not a bad decision because it eviscerated campaign finance reform; it’s a bad decision because it is an unnecessarily over-reaching (“activist,” perhaps, although i agree with jason that this is largely inevitable and probably not all bad) decision that is uncharacteristic of the judicial minimalism that the roberts court promised us all in 2005.


#44

the court declined the opportunity to make a narrow ruling and instead decided to topple decades of settled precedent

Now that is a valid criticism, certainly more serious than the usual anti-corporation rhetoric. The Court’s defensiveness in justifying the decision to expand the scope of the case at such great length is unusual, to say the least. The only thing I can think of is that the justices had become convinced that the prior decisions were so wrongly decided and hostile to the First Amendment as to necessitate what can only be described as a “stunt” to create an opportunity to overrule them.

Judicial activism? Kind of. It is hard to differentiate judicial activism from restoring fundamental principles (like free speech) if there is a good faith belief that the real judicial activism lies in the intervening precedents. Was it “judicial activism” to overrule Bowers v. Hardwick or Dred Scott? They were, after all, precedents, right? But I don’t think anyone here objects to their being overruled.

And it seems to me that freedom of speech against government classifications that determine huge ranges of groups to be censored from political speech is a principle that is worth protecting, even if it requires overruling prior decisions that led down the road to its erosion. It’s easy to say that, hey, this was just the government saying that corporations and unions couldn’t spend on political advocacy. But if that were allowed to continue as precedent, wouldn’t 501©(3) organizations be targeted next? And which groups would be singled out after that? And does anyone really believe that the choice of which kinds of groups to “guard” against was politically neutral and destined to remain that way?

The practical necessity of corporate legal personhood leads to the legal necessity of corporate freedom of speech rights. And those can’t be limited by the government any more than yours or mine can, notwithstanding easy populist rhetoric that makes it sound good on a purely surface level.


#45

If you prefer to be called JPS, I’ll call you JPS. I don’t care how people refer to me, as long as its not in the third person or with an abstract noun like “progressives or liberals.”

But if you really believe you have made ZERO responses in kind, then you are blind:

“It has been fascinating to observe the reaction to the decision. Those progressives objecting almost 100% of the time do so using partisan rather than legal arguments (including on this thread). That exposes the hypocrisy of the progressive argument, in my opinion.”

That was your first response, and yeah, it absolutely deserved to be mocked. Or the “protest signs” response. Or well, I could fill this post with quotes from you to fill a page. You can’t tell me you’re that oblivious to what you write.

[QUOTE=JPS;217651]Nice to see that you can display hypocrisy shamelessly at the very same time you condemn it. I’m not criticizing you for double standards because other people did it in the past. I criticize you for double standards because you’re doing it right now. And you started right from your very first mocking post on this thread, as you personally have done before.

Right now, the only thing you’re doing about my impression of hostile ideological group-think on this forum is confirming it. This kind of ad hominum reaction is exactly what the theory of group-think would predict in response to criticism.[/quote]

Your very first was a mockery of leftists, and every subsequent post followed that pattern, you can look back, I made a list of quotes from you that were all the same tired usual “leftists this” antics, and its not hard to guess who they were directed at.

You haven’t even shown one example of a double standard, I addressed everything you wrote. You don’t address what I write, when I ask you to respond, you tell me: you don’t have to go out of your way in any way to be courteous to progressives. And you want to talk about double standards? You literally told me on multiple occasions that you don’t care if you are dismissive or uncourteous to progressives since we all deserve it. Something about geese and gander ring a bell to you?

At no point did I condemn your dissent in personal terms, I condemned your condescension and usual anti-liberal antics, which you have a long history of doing on these forums with everyone and on every thread. If you want to stop that and focus on the debate, feel free and I’ll gladly drop the issue too.

Actually, I criticized every single link you posted and went into detail, you criticized none of mine. So how about you criticize my links and foster some debate? I guess it could be extended to my links, but it never is. How about you do it?

No I addressed the point. The point on procedural equality was that everyone abides by the same procedure. And more than that, this ruling is not an affirmation of procedural equality, since corporations now have greater rights to spend money in elections than real individuals. And I also offered the counter point that the initial ruling was set in place in order to prevent deleterious effects of corporate contributions, which the new ruling completely glossed over, but which you concede exists and is natural. Again, you never respond to that point, I even repeated it 3x.

If you want to drop your usual anti-leftist antics and just debate the issue, I’ll be more than happy.


#46

[QUOTE=asmitty;217652]this thread is TL;DR so i haven’t read much of it, but it seems like this is a poor decision in legal/jurisprudential terms because the court declined the opportunity to make a narrow ruling and instead decided to topple decades of settled precedent, particularly in light of the court’s decisions in austin v michigan chamber of commerce and and mcconnell v. FEC. it’s not a bad decision because it eviscerated campaign finance reform; it’s a bad decision because it is an unnecessarily over-reaching (“activist,” perhaps, although i agree with jason that this is largely inevitable and probably not all bad) decision that is uncharacteristic of the judicial minimalism that the roberts court promised us all in 2005.[/QUOTE]
Not to mention it was a stretch to overturn the ruling on corporations since Citizens United was a nonprofit and not a corporate entity.

Smitty, you really don’t think delimiting corporate advertising spending in campaigns is “probably not all bad”? Can you clarify?


#47

[QUOTE=JPS;217653]And it seems to me that freedom of speech against government classifications that determine huge ranges of groups to be censored from political speech is a principle that is worth protecting, even if it requires overruling prior decisions that led down the road to its erosion. It’s easy to say that, hey, this was just the government saying that corporations and unions couldn’t spend on political advocacy. But if that were allowed to continue as precedent, wouldn’t 501©(3) organizations be targeted next? And which groups would be singled out after that? And does anyone really believe that the choice of which kinds of groups to “guard” against was politically neutral and destined to remain that way?[/QUOTE]

Do it for everyone. Every type of organization and individual in America has the exact same spending limit for campaign advertising. I’ll take it.


#48

[QUOTE=Arabian Knight;217655]Not to mention it was a stretch to overturn the ruling on corporations since Citizens United was a nonprofit and not a corporate entity.

Smitty, you really don’t think delimiting corporate advertising spending in campaigns is “probably not all bad”? Can you clarify?[/QUOTE]

  1. citizens united is a (nonprofit) corporation.
  2. my comment was about judicial activism more broadly. i agree with you in terms of the effect of this decision on the political landscape, although i don’t think any of those are reasons that should bear upon the SCOTUS in arbitrating the constitutionality of campaign finance restrictions on corporations.

what is the constitutional or statutory basis for this “compromise”?


#49

[QUOTE=asmitty;217657]1) citizens united is a (nonprofit) corporation.
2) my comment was about judicial activism more broadly. i agree with you in terms of the effect of this decision on the political landscape, although i don’t think any of those are reasons that should bear upon the SCOTUS in arbitrating the constitutionality of campaign finance restrictions on corporations.[/quote]

  1. I stand corrected.
  2. I think, as Stevens said, that the Supreme Court should be aware of the deleterious effects of their ruling on the integrity of democracy. I don’t think laws should be analyzed in a complete vacuum.

what is the constitutional or statutory basis for this “compromise”?

I’m perfectly fine with Congress doing it. You know more about me on the laws, I’m fine with any actor getting the job done.


#50

[QUOTE=Arabian Knight;217656]Do it for everyone. Every type of organization and individual in America has the exact same spending limit for campaign advertising. I’ll take it.[/QUOTE]

Fair enough, but the decision doesn’t alter standing law regarding direct contributions to campaigns.

Too much angry back and forth for me to sift through up there, but my fairly simple thoughts on the matter are this:

  1. I pretty universally reject scarcity paradigms, and the precedent viewed political speech as a finite commodity to be doled out to each individual seeking a voice.
  2. Along similar lines, I think there was a serious problem (both practically and constitutionally) with the federal government aggregating to itself the authority to ration political discourse. I’m happy the court has struck a blow at this power. To put it another way, those objecting to the ruling seem to be doing so because they dislike the disproportionate voice those with more wealth might have after the ruling; they dislike the rule of the dollar. I can concede some distaste for it, but I find it far better than rule by bureaucratic fiat. Something seems very wrong with elected officials making laws restricting who gets to discuss the same elected officials and their dictates.
  3. Corporate entities are governed by regulations devised by politicians, and it seems problematic to me to deny them the ability to participate in the process of determining what those regulations might be. I would be equally infuriated if unions couldn’t spend money on advertising about union issues, or if I couldn’t spend money on an issue that would affect me. I fail to see the logic behind treating corporations differently.

That, of course, is simply my opinion based on my beliefs. I’m not at all versed in the actual laws and precedents surrounding the case.


#51

Do it for everyone. Every type of organization and individual in America has the exact same spending limit for campaign advertising. I’ll take it.

Censoring everyone equally is still censorship, and contrary to the First Amendment.


#52

Well I’m glad with all this money that I have that I can finally speak over the top of everyone…


#53

1/ Surprise?
That the Court went well beyond where it had to should hardly be a surprise. The Court was supposed to decide this case a term earlier but asked for re-briefing on this particular issue. That doesn’t make it a good decision, but it makes me wonder where the unhappy people were before (I know Seth Waxman made an issue of how the request for re-briefing on an issue not at issue was inappropriate, and others commented as well, so liberals in the legal academy were not surprised).

2/ Overturning Precedent Bad?
I don’t think anyone is really arguing that overturning precedent is bad. But there are two interesting arguments against what the court did in this case. First, many argue (and John Roberts stressed this in his confirmation hearings) that if the Court has an OPPORTUNITY to resolve a case without reaching additional issues, then the Court has an OBLIGATION to resolve the case without reaching those issues. Lawrence (overturning Bowers) and arguably Brown (overturning Plessy) had the issues squarely before the court. The second argument is that incremental decisions are better. The Warren Court, with the help of Thurgood Marshall (before he was on the Court) managed the flow of cases to take incremental steps (starting with issues like segregated housing developments, then schooling, and much later interracial marriage). I’m less convinced that the Court should engage in the second rather than the first, though the second does seem to me to have been good strategy for litigants.

3/ Corporations
Ok so I will admit I know less about this subject, but it was my impression that corporate personhood is enabled by statute, with some details established by statute and other details established by Common Law. Since we no longer live in the Lockner Era, Common Law is NOT by definition Constitutional Law. I recognize that some Constitutional Rights apply to corporate persons (freedom of the press applies to corporations that are newspapers, hence the Pentagon Papers decision where rights were extended to the New York Times and Washington Post). However, if corporations are chartered according to statute or common law (and post-Lochner, statute can trump common law), can government regulate corporate activities?

There’s an interesting federalism question here if corporations are state-chartered, but for the purpose of intellectual exploration let’s assume that the almighty highway funds mean that Congress and the President could get even corporate-loving Delaware to change corporate laws.

So what if government says “In order to be a corporation, your charter must forbid spending money on political activies.” Is this prohibited by Citizens United? It seems an interesting and difficult intersection of statutory and constitutional law, and I’m not sure how best to deal with it. That said, I’ll admit I don’t know that much about the legal basis for establishing or regulating how corporations act (the most I know is about how the poison pill in corporate charters was dealt with by courts).

4/ Liberal Reaction
If you pick and choose your sources, you can find stupid reactions. You can also find more intelligent reactions. I find the conservative “it’s free speech” to be equally under-developed.


#54

Ok so NB got busy this weekend :slight_smile: Here is what I see. My TV set will now be blasted with a million and 0ne ads from both sides of the isle for whatever reason/person they want. So instead of 3 commercials out of 5 per break it will 5 for 5 cause anyone with money will but this ad time. This means that stations will charge more for the time cause it just got more expensive and that real buissness like say Pepsi will either pay more during election season or not run spots. Same for local car dealerships. And it means that the Dems can strangle hold the bigger markets where they seem to live and the Republicans can do the same in the areas where they control…hmm Seems top me that it may create a more divided house as far as party affiliation and that backlash will occur at some level.
Do I think the ruling is wrong…no not really. Do I agree with it…no not really but I can understand it and why. Most voters hate special interest groups and they tend to annoy more than anything with thier pious ads…so hey thats just more fast forewarding for me on my DVR :slight_smile:


#55

http://www.mcsweeneys.net/2010/1/25seidenberg.html

I for one welcome our animated overlords.


#56

Well I’m glad with all this money that I have that I can finally speak over the top of everyone…

Zach, you of all people are a walking, talking illustration of the fact that money is not required to exercise free speech rights.

That whole “this decision gives corporations more speech rights than everyone else” aspect to the argument seems to me to be a red herring that simply isn’t true. Corporations are free to make political speech in exactly the same ways as non-profits, unions, 501©(3) organizations, clubs, faculty senates, student organizations, and individuals.

In order to be consistent and useful, free speech has to exist for everyone, and certain categories of individuals and groups cannot be exempted without rendering the deciders of who is and is not exempted into arbitrary authoritarian censors. I mean, if we decide that some types of collective groups (i.e. corporations) are not imbued with free speech rights, what’s to stop us from declaring that the SIEU or MoveOn.org should not also be exempt from having free speech rights? There would be no protection against that eventuality except for the political whims of the masses, which history has shown to be an extremely inadequate protection.

The idea that groups which are politically unpopular (e.g. corporations) should be denied basic rights strikes me as deeply dangerous, no matter how well-meaning the intentions of those initially pursuing the restrictions. It is very surprising to me that debaters, of all people, seem to by and large not even recognize the existence of this concern, let alone embrace it as a valid criticism. This was, perhaps, the reason I felt compelled to bring ideology into the discussion in the first place – because I perceive this as yet another area where the homogeneous and largely unexamined dominant progressive ideology in the debate community has caused many if not most debaters to embrace ideas that are flatly contradictory to the classically liberal ideals that justify the existence and promotion of debate as an activity.


#57

[QUOTE=JPS;217612]It has been fascinating to observe the reaction to the decision. Those progressives objecting almost 100% of the time do so using partisan rather than legal arguments (including on this thread). That exposes the hypocrisy of the progressive argument, in my opinion.[/QUOTE]

Do you admit the possibility of a substantive, constitutional progressive critique of the decision? Or are all progressive critiques hypocritical by their very nature?


#58

Reasoned critiques will be ignored.

As for more rights- well, I have found an additional right that corporations have that individuals don’t. A foreign corporation may create a subsidiary in any state that permits it to do so, and then receive free speech rights in US elections. Foreign individuals may not create subsidiary individuals to participate in US elections (even if you could find a way to create such an individual, involuntary servitude is prohibited by the 13th Amendment).


#59

[QUOTE=JPS;217688]Zach, you of all people are a walking, talking illustration of the fact that money is not required to exercise free speech rights.

That whole “this decision gives corporations more speech rights than everyone else” aspect to the argument seems to me to be a red herring that simply isn’t true. Corporations are free to make political speech in exactly the same ways as non-profits, unions, 501©(3) organizations, clubs, faculty senates, student organizations, and individuals.

In order to be consistent and useful, free speech has to exist for everyone, and certain categories of individuals and groups cannot be exempted without rendering the deciders of who is and is not exempted into arbitrary authoritarian censors. I mean, if we decide that some types of collective groups (i.e. corporations) are not imbued with free speech rights, what’s to stop us from declaring that the SIEU or MoveOn.org should not also be exempt from having free speech rights? There would be no protection against that eventuality except for the political whims of the masses, which history has shown to be an extremely inadequate protection.

The idea that groups which are politically unpopular (e.g. corporations) should be denied basic rights strikes me as deeply dangerous, no matter how well-meaning the intentions of those initially pursuing the restrictions. It is very surprising to me that debaters, of all people, seem to by and large not even recognize the existence of this concern, let alone embrace it as a valid criticism. This was, perhaps, the reason I felt compelled to bring ideology into the discussion in the first place – because I perceive this as yet another area where the homogeneous and largely unexamined dominant progressive ideology in the debate community has caused many if not most debaters to embrace ideas that are flatly contradictory to the classically liberal ideals that justify the existence and promotion of debate as an activity.[/QUOTE]

I may be a walking, talking example of people capable of using my constitutional right to free speech but the ability to reach a large audience is yet to be at my disposal. My concern comes to what disproportionate degree very wealthy entities and individuals will have at reaching large audiences and influencing public opinion.

Most grassroots/community based organizations already lack the funding capable of paying for advertisements but I shudder to think how easily corporations like Chevron, Xe, DuPont, etc. will be able to to simply outspend their political opponents. Even if the spectrum of non-profits will be able to compete with wealthier institutions (the non profit industry has more than $1.5 trillion at its disposal), it doesn’t do anything to level the playing field for grassroots organizers. It’ll further suck community organizing into the trap of the non-profit industry, whereby organizations will be obligated to pursue fundraising from wealthy foundations that don’t give out money no strings attached. It more likely categorically rules out any such political avenues.

Moreover, since money is typically the best predictor of an outcome of an election, this could dramatically transform the ability to influence public opinion. The level of astroturfing is going to explode in this election season and the transformation to a plutocracy will be complete. No democratic society can sustain its integrity in a world where the public sphere is controlled by money. Corporations exist for an economic purpose and their political actions aren’t likely to be motivated by ideology. It is more likely they will seek to influence the election of officials who will control contracts or outcomes that affect their business interest.

These may not be legal arguments but they are certainly not hypocritical. I find it laughable that arguing for restricting corporate political speech some how undermines the classic liberal ideas that help debate flourish. Perhaps its time to own up to the fact that the history of our republic has been less democratic than the myths we espouse about it.


#60

eh, we’re a dying empire anyway. exhibiting all the right traits. Won’t be too much longer now.