Chief Justice Roberts and McCutcheon v. Federal Election Commission

Submitted by Elaine Magliaro, Weekend Contributor

First, there was Citizens United. Now, we have the Supreme Court’s recent ruling in the McCutcheon case. It does appear that our country’s campaign finance laws may have been “eviscerated”—as noted by Justice Breyer when he wrote that, taken together with Citizens United, McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Corporations are people…money is speech. The more money one has to spend…the more “speech” one can afford to buy—especially where political campaigns are concerned.

Dahlia Lithwick (Slate), in writing about Chief Justice John Roberts after the court’s ruling in the McCutcheon case, said that it seemed weird: “The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment.”

Amy Davidson (The New Yorker) said that Roberts relied on a very narrow measure of corruption in the McCutcheon ruling: “Ingratiation and access … are not corruption.” She added that the argument, in effect, is that political parties themselves cannot be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.”

Roberts wrote, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” Roberts explains what isn’t “quid pro quo” with regard to spending large sums of money on elections:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

SOURCES
Justice Roberts Hearts Billionaires: The chief either doesn’t believe, or doesn’t care, that money corrupts politics. (Slate)

The Devastating, Sneaky Genius of John Roberts’ Opinions: His McCutcheon decision pretends to be mild but then wrecks what remains of campaign-finance law. (Slate)

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact (Moyers & Company)

Justice Roberts Defends the Embattled Rich in McCutcheon (The New Yorker)

The John Roberts Project (The New Yorker)

 

287 thoughts on “Chief Justice Roberts and McCutcheon v. Federal Election Commission

  1. Totally disagree.
    Citizens United fundamentally was about the right of a group of people to have the same free speech rights as single person, whether under the guise of a named group, union, or corporation.
    McCutcheon merely stands for the right of a person to put, spend or give his own, personal, money in whatever inherently legal direction he feels like, and to whomever he feels like.
    Neither of these rulings are wrong or bad, they are release of constraints of free speech and agency.
    It is only due to propositional fear mongering that any argument can be made against them.
    But those same ‘inference upon inference’ arguments can be made against any other personal freedom that someone doesn’t like. You just put up a hypothetical, treat it as true, and then base another hypothetical upon it.
    Before you know you have Dante’s inferno right here on Earth, impending not actual of course, but for the hysteria it makes little difference.

  2. magginkat – the NY Post is a source and they have been running a series of articles on attacks by the left on the Koch Bros. This is article number five. The Evil Bloomberg.

  3. We’re going around and around in circles with this corruption issue.
    Giving testimony isn’t going to be easy either.

  4. Elaine….. Someone thread jacking….. No…..

    Paul….. Anyone with an ounce of decency would want the thieving Koch brothers prosecuted…… Just goes to show people are in awe of people with money…., stolen at best…

  5. Elaine – We are talking about money in politics. You opened the door.

    AY – back up your statement that they are thieving. I am certainly not in awe of Bloomberg or Soros.

  6. Paul,

    There are wealthy Democrats/Liberals–as well as rich Republicans/Conservatives–who contribute big money to political campaigns. I’m against big money buying politicians/politcal favors/legislation that benefits them. I don’t care if the wealthiest contributors are red or blue. Their money perverts our system of government.

  7. I still don’t understand why we do not respond to these rulings by literally tying money to votes. If you can’t vote, you can’t contribute. Registered to vote in Colorado? Sorry, no contributing to any campaign in any other state. Live in St. Paul? Then you don’t get to spend money on Minneapolis politics. Not a human, so not (yet) eligible to vote? No contributing to anything.

    Restricting the people’s right to do stuff that would damage the nation as a whole is constitutional, isn’t it? Allowing foreign interests to influence a vote would expose the nation to excessive control by outsiders, which any career political manipulator would be happy to decry.

    Not perfect, and of course it would eventually succumb to the machinations of the evil ones, but it would be refreshing for a while.

  8. In the following video, Bill Moyers and Paul Krugman discuss Thomas Piketty’s book “Capital in the Twenty-First Century:

    What the 1% Don’t Want You to Know

  9. ” The more money one has to spend…the more “speech” one can afford to buy” This is obvious, and the way it should be. This is why the freedom of the press does not obligate anyone with a press to exercise someone else’s right for free. The alternative to your statement would be lead to the inability to exercise our rights to speech as the forums for speech would close due to bankruptcy, or the complete government takeover and control of the means of expression, which also amounts to suppression.

    Remember, unions and moveon.org are corporations, and should therefore be banned from discussion politics or making political contributions. That is the logical conclusion from the belief that corporations should have no rights of speech. Doing so might very improve the tenor of political discussion.

  10. “If you can’t vote, you can’t contribute. ” I wholeheartedly agree. Contributions from outside the jurisdiction of the vote should also be banned, which ties into this. Groups or people in Maine should not be sending money to influence a vote in California.This alone would significantly cut down on political advertising and weaken the influence of wealthy individuals and groups not subject to the matter of the vote. When it comes to elected offices, there is no good reason for money to come from non-constituents.

  11. We have yard signs around here which say: Fire Hagan. Kay Hagan is a Democrat and U.S. Senator. The signs are funded by some Koch Bro group. Kids in the neighborhood altered the sign. The word Fire was at the top and Kagan was underneath. On some signs the kids taped over the word Fire with RE-ELECT and on some signs they put a paper taped over the bottom word which says: McCrory. That Mick is the RepubliCon Governor. I urge all kids to get out the vote. If a corporation can be called a person the I can be called a kid.

  12. The solution to this is easy.

    What if there was a political party that said:
    We will never ask you for a campaign contribution, we only ask that if you agree with our platform you use social media to send our messages to your friends and co-workers with your personal endorsement.

    The cynics will say wall to wall ads on TV are better, but every expert on advertising will tell you word of mouth and personal references beat paid advertising hands down.

    And if one of the messages that was sent was “political parties that have lots of money are obviously working for people with lots of money – not you” then all these rulings of “Money is Speech” would actually work AGAINST the existing parties. Everyone already knows that big money corrupts, they just don’t currently have another alternative.

    Of course our 2-party sham democracy has brilliantly protected itself from new parties with the “spoiler effect” (would make Orwell’s head spin) and Nader really seemed to enjoy reinforcing it in 2000. But again the solution is simple, just make a pledge that you won’t be a spoiler, that if your candidate is not polling within 10% of a win, that you will throw your votes to the best viable candidate.

    Democracy works. The solution to corrupt government is not getting rid of government and leaving the oligarchy who corrupted it with ALL the power. But eve though we have amazing technology/productive potential to end global poverty and save the environment, I don’t see much hope for real change, people would rather complain and argue than actually do anything new.

  13. Guess Paul has nothing to respond to….. I said it before the Koch brothers are thieves in the same line as the father….

    At least Dart Corporation did it the old fashioned way….

  14. Uninformed people, do not know the difference between a Corporation and the people perhaps should read more before opening their mouth.

  15. “Remember, unions and moveon.org are corporations, and should therefore be banned from discussion politics or making political contributions.”

    Who is calling for a banning of discussion? Taking out the money simply means a different group of people will be interested enough to show up for the debate. Perhaps it will allow government to return to being a boring administrative affair, one which we can give much of to computers.

    The people that show up will likely want to, you know, govern. Because that is what is sorely lacking in this era of sickening wealth that causes otherwise nice people to lose all track of the word “enough.”

    The finite surface area enclosed by a sphere will assure “enough” is learned, one way or t’other. The 60 million genx/y folks will soon be supporting the 140 million baby boomers. Wealth will be furthest thing from their grasp, and their policies when they soon take the reigns of power, are going to be quite different.

    Hence the scurry to take everything in sight before that happens. “By drowning in the bathtub,” as Old Norquist would whine.

  16. Paul, I see Dems teach their children @ an early age to deface and steal political signs. The Carville School of Gutter Politics. I’m sure you’re proud. You would be SCREAMING and calling CPS if the roles were reversed.

  17. AY – if I cannot use the NT Post as a source, you cannot use the LA Times. It is a social justice issue.

  18. History tends to repeat itself. So you want to pay to play?
    What could possibly go wrong? Year 2000.

    Phil and Wendy Gramm

    Summers, Rubin and Greenspan weren’t the only people who thought it was a good idea to let banks gamble in the derivatives casinos. In 2000, Republican Senator from Texas Phil Gramm pushed through the Commodity Futures Modernization Act, which not only banned federal regulation of these toxic poker chips, it also banned states from enforcing anti-gambling laws against derivatives trading. The bill was lobbied for heavily by energy/finance hybrid Enron, which would later implode under fraudulent derivatives trades. In 2000, when Phil Gramm pushed the bill through, his wife Wendy Gramm was serving on Enron’s board of directors, where she made millions before the company went belly-up.

    When Phil Gramm left the Senate, he took a job peddling political influence at Swiss banking giant UBS as vice chairman. Since Gramm’s arrival, UBS has been embroiled in just about every scandal you can think of, from securities fraud to tax fraud to diamond smuggling. Interestingly, both UBS shareholders and their executives have gotten off rather lightly for these acts. The only person jailed thus far has been the tax fraud whistleblower. Looks like Phil’s earning his keep.

  19. Paul,

    I am not limited in my ablity to read and comprehend….. A thief is a thief regardless of source….

  20. When the likes of Corzine and Bloomberg can no longer buy public office society should seriously reconsider campaign finance reform. Until such time those who debate the issue engage in a circle jerk.

  21. Yes, those poor benighted rich folks have to level the playing field by buying the government they feel they deserve. One person-one vote was just too much of a threat to them.

  22. Annie – Talk to George Soros and Mike Bloomberg, they spend more money individually on politics than the Koch Bros combined. Bloomberg bought the office of mayor on NYC.

  23. AY – Just because some calls someone a thief, does not make them one. Innocent until proven guilty under our Constitution.

  24. Hmmmm Paul….. Interesting….. Then why the man hunt for Jullian Assange and Edward Snowden…..

  25. Annie – oddly enough, opensecrets is funded by Soros. Not sure this is a reliable source on the topic.

  26. Exposing corruption and deceit in government is defensible…… Stealing oil from native Americans is I guess as defensible……. If you have no conscience….

  27. Well, we have admissions of guilt from both Snowden and Assange. We do not have an admission of guilt from the Koch Bros. We have an accusation, but nothing more.

  28. I’ve heard the Koch Brothers kill puppies and kittens for pleasure. Today they reportedly killed little bunnies.

  29. Strange, but only George Soros is involved in a nasty palimony suit with his ex-girlfriend. All the Kochs seem fine.

  30. Is this the same John Roberts who provided the “professional courtesy” of morphing an interstate commerce argument into a taxation argument understanding that the issue had been presented to the electorate as absolutely NOT taxation which would have killed it post haste?

    Could that be construed as a complete dearth of objectivity in the face of an ideological agenda and no respect for the electorate’s aversion to taxation? Did the elite Justice know better than the voter’s what’s good for them and impose it? Why would Roberts assign less weight to public polling against raising taxes and a fraudulent presentation to the public thereof, than to an ideological agenda?

    John Roberts.

    Can you say credibility? Dominion, yes. Credibility, no.

  31. Seems to me the people who control the press, the networks, & analogous are the problems. Where do ceasing to work politicians go with their taxpayer retirement ? Check it out ? Often by attracting clients or funds, if an attorney, or a pundit in a 501 (c) ? What is the difference between a labor union, a corporation, & a political 501(c) ? Was it not JFK who said: Life is not fair ? What party did he belong to ? The better answer is elect the best candidate to office. How do you do that ? Check out their curriculum vitae. If you don’t why not – otherwise it is just political oblige.

  32. Warren Buffett

    Warren Buffett used to be a reasonable guy, blasting the rich for waging “class warfare” against the rest of us and deriding derivatives as “financial weapons of mass destruction.” These days, he’s just another financier crony, lobbying Congress against Wall Street reform, and demanding a light touch on—get this—derivatives! Buffet even went so far as to buy the support of Sen. Ben Nelson, D-Nebraska, for a filibuster on reform. Buffett has also been an outspoken defender of Goldman Sachs against the SEC fraud allegations, allegations that stem from fancy products called “synthetic collateralized debt obligations”—the financial weapons of mass destruction Buffett once criticized.

    See, it just so happens that both Buffet’s reputation and his bottom line are tied to an investment he made in Goldman Sachs in 2008, when he put $10 billion of his money into the bank. Buffett has acknowledged that he only made the deal because he believed Goldman would be bailed out by the U.S. government. Which, in fact, turned out to be the case, multiple times. When the government rescued AIG, the $12.9 billion it funneled to Goldman was to cover derivatives bets Goldman had placed with the mega-insurer. Buffett was right about derivatives—they are WMD so far as the real economy is concerned. But they’ve enabled Warren Buffett to get even richer with taxpayer help, and now he’s fighting to make sure we don’t shut down his own casino.

  33. Gee, I thought it was Saint Warren. You mean all those laments that he doesn’t pay enough taxes was bullshit?? You mean he wasn’t just playing both sides?? You mean he didn’t cut a check to the treasury for the taxes he thought he should have paid?? Shocking!

  34. Be carful….. The only one who cares what you think and actually communicates with you is an ardent warren supporter……

  35. I can only hope Paul Krugman doesn’t happen to read this post where he has been subject to such nuanced, thoughtful and scholarly attack.

    Imagine!

    Bulimia!

    Horrors!

  36. I read all the comments and then forgot what the topic was about. Someone up there said that Snowden and Assange should come forward and present their defenses. That is what the Germans told the Jews in 1944. Come out of that attic in Amsterdam young lady and explain why you are a Jew. Yeah, right.

  37. Al – that is the oddest comparison I have seen in awhile. Comparing Snowden and Assange to Anne Frank is illogical.

  38. Opening the political money chutes
    By Richard L. Hasen
    APRIL 7, 2014
    http://blogs.reuters.com/great-debate/2014/04/07/opening-the-political-money-chutes/

    Excerpt:
    The headline about a new Supreme Court opinion rarely tells the whole story. Rather, the detailed reasoning of the ruling often reveals whether a decision is a blockbuster or a dud.

    When the court writes broadly, it can eventually remake entire industries, government practices or areas of the law. Lawyers and lower courts scrutinize an opinion’s every line and footnote, pouring over the legal reasoning and noting subtle changes from the court’s earlier decisions in the same area.

    This is why it is fair to call last week’s Supreme Court ruling in the campaign finance case McCutcheon v. Federal Election Commission a blockbuster case. In McCutcheon, the court struck down limits on the total amount that an individual could give to federal candidates, parties and certain political committees in an election cycle.

    The ruling is itself significant, and will channel a great deal of money into the hands of party leaders — opening up new ways for big donors to buy access to elected officials. But just as significant is the court’s reasoning — which could well lead to courts striking down what remain of campaign finance limits, including limits on contributions to individual members of Congress. We could be on our way to politicians accepting multimillion-dollar contributions from a single donor.

    Elsewhere I have explained many of the subtle but significant shifts in reasoning and definitions that turn McCutcheon from a narrow holding on “aggregate limits” into a broadside against most campaign finance limits. This led Justice Stephen Breyer, in his dissent, to say that Chief Justice John Roberts’ majority opinion “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

    Among the most important changes in Roberts’ opinion was the court’s defining “corruption” narrowly as akin to bribery — which makes it difficult to justify any challenged campaign finance limit.

    While McCutcheon’s narrowing definition of corruption has gotten attention, a related change by the court majority in McCutcheon has been all but ignored: the virtual disappearance of the “appearance of corruption” as a basis for limiting campaign contributions. Its troubling disappearance demonstrates the extent to which the Supreme Court majority is willing to ignore political reality for the sake of its extreme free speech views.

    The Supreme Court’s 1976 opinion in Buckley v. Valeo for the first time set out the basic ground rules for determining when campaign finance limits are acceptable under the First Amendment’s right of free speech and association. It held that contribution limits (which it said only marginally impinged on free speech rights) could be justified by the government’s interests in preventing either “corruption” or the “appearance of corruption.” On the latter, the court explained, “Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.”…

    The Supreme Court’s opinions are themselves actually promoting the appearance of corruption. On the day McCutcheon was decided, I spoke at a luncheon honoring the California Supreme Court and criticized the U.S. Supreme Court for failing to pay attention to facts and evidence in election cases. I quoted from Justice Anthony Kennedy’s majority opinion in Citizens United, the earlier Supreme Court case that allowed corporations to make significant contributions to elections. Kennedy wrote: “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Further, “[t]he appearance of influence or access…will not cause the electorate to lose faith in our democracy.”

    Kennedy’s remarks were huge laugh lines in my speech. No one in the public is buying what the court majority is selling anymore. People have become cynical about the role of money in politics.

    We will now learn what happens to public confidence in an era of big money going into politicians’ pockets. The court may not call it “appearance of corruption.” But to the general public, that’s just how it looks.

  39. Heeere’s Johnny: ‘Access’ and ‘Ingratiation’ in the McCutcheon Decision
    by Christopher Brauchli
    4/12/14
    https://www.commondreams.org/view/2014/04/12-3

    Exceprt:
    No matter whether th’constitution follows th’ flag or not, th’ supreme coort follow th’ iliction returns.

    —Finley Peter Dunne, Mr. Dooley’s Opinions

    As usual, I am indebted to readers whose perceptive questions cause me to reflect on matters raised by them. The question this week is
    A smiling Chief Justice John Roberts. (Photo: Wikimedia Commons)
    why Chief Justice John Roberts did not insert any smiley faces in his opinion in the case of McCutcheon v. Federal Election Commission. It is obvious to any reader of the opinion that he was having a good time writing that opinion and the friendly gloss he bestowed on bribery would have been enhanced by a smiley face. Since we have incorruptible politicians running the country (except for the few who inadvertently end up in jail) Chief Justice Roberts and four of his colleagues assure us we need not be alarmed by the effect of gifts of large sums of money to the campaigns of those seeking elected office.

    It is difficult, but not impossible, to select one sentence in 46 pages of the Chief Justice’s opinion that stands out as the most amusing. A good candidate is found on page 2 of his opinion, however, where he says: “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” For the benefit of my non-lawyer readers, “general gratitude” is not a term taught in law school nor is it a particular word of art. It simply describes the warm feeling a political candidate has upon receiving a large sum of cash from someone who, before the gift, was a complete stranger. To bolster that bit of jurisprudential nonsense the Chief Justice hearkens back to an earlier triumph in judicial nonsense, Citizens United v. Federal Election Comm’n. He quotes approvingly from that opinion that: “Ingratiation and access . . . are not corruption.” (“Ingratiation” is the product of “general gratitude.”) Those are but a couple of the Chief Justice’s attempts at whimsical analysis. Early in his opinion he approvingly notes that the Court has historically said that Congress cannot “regulate contributions simply to reduce the amount of money in politics or to restrict the political participation of some in order to enhance the relative influence of others.” What the Chief Justice means by “enhance the relative influence of others” is that if the election process were a level playing field, the poor and the rich would have exactly the same opportunity to influence the outcome of the election. Money would not make a difference. The result of that would be to deprive the wealthy of the ability to obtain “ingratiation and access” that large contributions give them. Chief Justice Roberts observes that current law permits a voter to contribute up to $5,200 to nine candidates but not an additional $5,200 to a tenth. If there are more than nine candidates the wealthy voter would like to support, “the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.” That he describes as a “clear First Amendment” harm. It penalizes the voter for “robustly exercising his First Amendment rights.” He observes that working for a candidate by going door to door on the candidate’s behalf is no substitute for giving money since if a voter wants to support 50 candidates the voter cannot possibly have enough time to do canvassing for all 50 candidates. By removing the limit on the total amounts a voter can give during an election cycle, a voter can contribute in a meaningful way to the campaigns of 50 or even 500 candidates.

  40. What John Roberts Doesn’t Get About Corruption
    Quite a lot, it turns out.
    By ZEPHYR TEACHOUT
    April 14, 2014
    http://www.politico.com/magazine/story/2014/04/what-john-roberts-doesnt-get-about-corruption-105683.html#.U1UdYF50VhA

    Excerpt:
    In McCutcheon, as in Citizens United v. FEC, the 2010 case that laid the groundwork for last week’s decision, the lead opinion uses quid pro quo as kind of Latinate talisman that can get judges out of the mess of actually balancing difficult questions of democracy. The problem is that, like a lot of talismans, it looks older and more genuine than it is. It is actually only a few decades old, and doesn’t have the magic they think it does. Until the court mentioned it in Buckley v. Valeo, the 1976 case that struck down expenditure limits for the first time, it was not a major part of corruption law, and until Justice Sandra Day O’Connor was replaced by Samuel Alito, no majority opinion had used it to define the outer limits of corruption.

    The chief justice has one thing right: Quid pro quo is indeed a Latin phrase. However, he got almost everything else about it wrong. First, its historical legal roots lie not within corruption, but in contract law. It refers, in that context, to the idea of relatively equal exchange between parties. In the absence of relative equality—quid pro quo—a court might question whether there was an actual contract. If I give you a dollar, and you give me a mansion, our contract would lack quid pro quo.

    In fact, the phrase “quid pro quo” appeared less than 100 times in all state and federal bribery and extortion cases before 1976. There are a handful of cases in which the language of quid pro quo shows up in bribery discussions, but not as one of the elements of, or an essential feature of, bribery. Most of the time, though, it was used in the historical “equality of exchange” sense. In cases holding that no quid pro quo was required to prove extortion, the courts meant that the illegal deal didn’t need to be equal or fair.

    When quid pro quo was mentioned in the per curiam opinion Buckley, it was not as a definition, but in passing. These are the relevant passages: “To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” And: “Assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers.” Neither of these passages takes on the task of defining corruption by reference to quid pro quo, or explains what quid pro quo means.

    No reasonable reading of Buckley limits all corruption to quid pro quo corruption. Elsewhere in the opinion, the court is quite clear that it is concerned with more than quid pro quo, and more than just “explicit and blatant exchanges.” No matter: After Buckley, several of the justices attempted to make the phrase the epitome of corruption, instead of an example of it.

  41. Elaine – regardless of what you and I think about it or what liberal/progressive blogs you post here, it is what it is. George Soros and Mike Bloomberg get to spend more money buying candidates. You could too, if you had the money, actually, your old teacher’s union will try.

  42. The Pro-Money Court: How the Roberts Supreme Court Dismantled Campaign Finance Law
    David Earley, Avram Billig
    April 2, 2014
    http://www.brennancenter.org/analysis/pro-money-supreme-court

    Excerpt:
    The Supreme Court’s McCutcheon v. FEC decision further increases the influence of big money in elections. But McCutcheon is just the latest in a long string of cases weakening campaign finance rules. Since Chief Justice John Roberts and Justice Samuel Alito joined the Court in 2005 and 2006 respectively, six decisions have significantly reshaped the legal landscape dictating how much big money can flow into political races. Here is some background on what the Court did, how it affected American elections, and what could happen next.

    2007: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc.

    The SCOTUS Ruling: The Court struck down a law regulating sham issue ads — television advertisements that clearly target specific candidates, but avoid regulation by posing as “issue” ads. For example, an advertisement referring to a candidate by name close to the election, but instead of explicitly advocating voting for or against the candidate, tells the viewer to “call Rep. Smith and tell him to stop corporate polluters.”

    The Majority Opinion: Chief Justice Roberts on the continued regulation of issue ads: “Enough is enough. Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.”

    The Dissenting Opinion: Justice Souter: “Neither Congress’s decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.”

    The Result: By rejecting Congress’s decision to regulate political spending, the Court encouraged the creation of more and more political ads that circumvent campaign finance law by leaving out “magic words” such as “vote for” or “vote against.” As any voter who lives in a battleground state knows, these ads now dominate many elections, often funded by shadowy groups that do not reveal their donors.

    2008: Davis v. FEC

    The SCOTUS Ruling: The Court struck down the so-called “Millionaire’s Amendment,” which had permitted congressional candidates facing wealthy opponents who spent more than $350,000 of their own money on the race to raise larger contributions until they achieved parity with their wealthy opponents.

    The Majority Opinion: Justice Alito: “While [the law] does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.”

    The Dissenting Opinion: Justice Stevens: The law “does not impose any burden whatsoever on the self-funding candidate’s freedom to speak, it does not violate the First Amendment, and . . . it does no more than diminish the unequal strength of the self-funding candidate.”

    The Result: Opponents of extremely wealthy candidates are left without an effective way to overcome their significant financial disadvantage. By striking down the “Millionaire’s Amendment,” the Court helped to ensure that Congress would continue to be dominated by the very wealthy, a state of affairs recently described by the Center for Responsive Politics.

  43. Legalized Corruption and the Twilight of Campaign-Finance Law
    In McCutcheon v. FEC , the Supreme Court finds that those whose lack of money stifles their voices are simply losers in a fair democratic system.
    GARRETT EPPS
    APR 2 2014
    http://www.theatlantic.com/politics/archive/2014/04/legalized-corruption-and-the-twilight-of-campaign-finance-law/360051/

    Excerpt:
    After Wednesday’s execrable decision in McCutcheon v. Federal Election Commission, we are likely to hear more bashing of the Court’s 2009 decision in Citizens United v. Federal Election Commission. But McCutcheon’s roots lie much deeper than Citizens United, in these words from the Court’s first major campaign-finance decision, Buckley v. Valeo (1976):

    the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.
    Although this passage does not reappear until page 18 of the Court’s four-justice plurality opinion in McCutcheon, they were almost the first words out of Chief Justice John Roberts’s mouth when he announced the decision from the bench Wednesday. They remove any consideration of civic equality, or of a right to be heard as well as to speak, from the ongoing debate about money in politics. Over the years, they have corroded the structure of campaign-finance regulation, and Wednesday, as Justice Stephen Breyer said in a forceful dissent from the bench, they laid it waste.

    Roberts said Wednesday that neither Congress nor the states can regulate campaign finance “simply to reduce the amount of money in politics.” This prohibition extends to regulation of contributions, which he said involve “the right to participate in choosing our political leaders.”

    All of which means, in effect, that the more money flowing through the system the better. Those who, from lack of money, are muted or excluded from the process are simply losers in a fair democratic system.

  44. John Roberts’ humiliating arrogance: Wingnuts reveal contempt for democracy
    Chief justice’s latest blow to campaign finance usurps the role of Congress, a legal expert explains
    JOSH EIDELSON
    4/3/14
    http://www.salon.com/2014/04/03/john_roberts_humiliating_arrogance_wingnuts_reveal_contempt_for_democracy/

    Excerpt:
    The Roberts Court’s five conservative justices dealt a fresh blow to campaign finance reform Wednesday, quashing overall limits on campaign contributions.

    “The interests of the 99 percent … are going to be further drowned out,” argued attorney Chisun Lee, counsel for New York University’s Brennan Center for Justice. Lee accused Chief Justice Roberts, who wrote Wednesday’s controlling opinion (McCutcheon v. Federal Election Commission), of misrepresenting the issues, narrowing the definition of corruption, and substituting the courts’ judgment of the facts for elected officials’. A condensed version of our conversation follows.

    What will this decision mean for U.S. politics, and where in particular will the impact be felt?

    It elevates the power of the wealthy donor, the person who can afford to spend more than six figures in a federal election cycle … even further above the rest of us in the 99 percent. The court has said that contributing money to buy access to the political process is what democracy is all about. And this furthers the power of elites in American politics today, and we’re going to be working very hard to beat that back.

    How is the median American citizen going to be affected by this?

    The average American citizen’s voice in politics will have to compete that much harder against special interests, who can now spend exponentially more money to gain influence over the political process. How this will play out in specific policy decisions, no one can say today. But the interests of the 99 percent, or even the citizen of moderate means, are going to be further drowned out by the greater power of wealthy donors.

    In that controlling opinion, Justice Roberts writes that, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Why do you disagree?

    What we disagree with is the elevation by Chief Justice Roberts’ opinion of the right of the wealthy donor to buy influence, to the level of the freedom of the press. And we do disagree that that is what the First Amendment stands for.

  45. Elaine – any liberal candidate who thinks they have gotten too much money can give it back. I am sure they will all do this.

  46. Elaine – are you going to roll out every liberal rag this morning? I hate to say this, but if you’ve read one, you’ve read them all.

  47. Paul,

    You seem fixated on George Soros. Are you a fan of his? Are you going to keep bringing up his name? Are you in favor of his spending millions in campaign donations?

    If you don’t want to read what I’ve posted–don’t read what I’ve posted. You’re not the only person who reads this blog. I don’t tailor my posts and comments for you.

  48. Elaine,
    Great links! Keep them coming. Especially ones like the Brennan Center article that exposes the nonsense that the Roberts Court spews on campaign finance.

  49. Elaine – just leveling the playing field because I think I know where all this is going. If you are progressive, you have a meme that has to be completed if you are talking about money in politics. Just making sure we see both sides of the coin, or maybe the only side of the coin.

  50. Paul,

    I see you don’t want to answer the questions that I asked you about George Soros. I guess when you have an opinion on a subject/issue and constantly repeat your talking points it’s called “leveling the playing filed.” Interesting.

  51. Elaine – and you don’t think constantly linking new sites with the same opinion is tilting the playing field?

  52. rafflaw,

    I think some right-wingers may find this court ruling could pose a problem at times. They want the wealthy to be able to donate as much as they choose to political parties/campaigns–just as long as the rich people/organizations making donations aren’t George Soros or liberals or unions.

  53. Paul, You’ve just been given a lot of homework, and “You better do it young man or you’ll be here after school!” Elaine LOVES to still give homework assignments. Occupational hazard.

  54. Paul,

    This is a blog–not a major national news network. You can leave as many comments as you like on this thread–as can anyone else. No one is stopping you–except for the spam filter…when it’s cranky.

  55. Nick – I don’t do homework.
    +++++++++
    Elaine – it is nice that you recognize that Soros, liberal pacs and unions donate, too. There is hope for you yet. :)

  56. Chrissake Paul! George Soros is a good billionaire, one of the very few and The Koch Brothers are evil billionaires. Now, drink your Kool-Aid, and shut up!

  57. Paul,

    I guess you missed a comment that I made much earlier in this thread:

    http://jonathanturley.org/2014/04/20/chief-justice-roberts-and-mccutcheon-v-federal-election-commission/#comment-1026890

    Elaine M.

    Paul,

    There are wealthy Democrats/Liberals–as well as rich Republicans/Conservatives–who contribute big money to political campaigns. I’m against big money buying politicians/politcal favors/legislation that benefits them. I don’t care if the wealthiest contributors are red or blue. Their money perverts our system of government.

  58. Certain billionaires are buyers of politicians in both parties. But, I have come to see the dynamic I saw as a PI many times. People are so entrenched in what they believe they could pass a polygraph. That pathology never ceases to fascinate me.

  59. Elaine – my mind picks up patterns. When you have a thread (I guess that is what we would call this), you continually fertilize it with more and more liberal postings backing up your original take on the subject. This morning you dropped four new ones? More? You are the only blogger who works like that. Everyone else might (and I say might) add new material if they are refuting a particular argument from somebody.
    Where most threads die after a day, you seem to keep yours going, resurrecting it with new (rehashed material). I think you kept that one going for 10 days. I was personally impressed. That was a major effort.

  60. Elaine – your posters all think that only Republican donors are evil. That is what/who I am speaking to.

  61. Paul Schulte

    “Elaine – my mind picks up patterns. When you have a thread (I guess that is what we would call this), you continually fertilize it with more and more liberal postings backing up your original take on the subject. This morning you dropped four new ones? More? You are the only blogger who works like that. Everyone else might (and I say might) add new material if they are refuting a particular argument from somebody.”

    *****

    I post opinions by different people–some, on this thread, were written by lawyers/legal scholars.

    I’m the only blogger who works like this? So what? I don’t mind being different from other people/bloggers.

    **********
    Paul Schulte

    “Where most threads die after a day, you seem to keep yours going, resurrecting it with new (rehashed material). I think you kept that one going for 10 days. I was personally impressed. That was a major effort.”

    *****

    Which post would that be? And why do you find it bothersome that I add new comments to a post that may be several days old?

  62. Elaine – the opinions you are posting are all the same. They could have been written in a backroom somewhere. There is no real variety in the opinions. Whether they are from legal scholars or pundits, though, it makes no difference. The court has spoken and for the time being it is the law of the land.

  63. Elaine,

    Methinks you have an ardent admirer ….. Stalker or another paradox of a former stalker…..

  64. Well, it is the law of the land only as a tax, which the Obama administration swore up and down it wasn’t. Still, Roberts went there. However, the ACA is legislation, not a Constitutional right, it can be overturned or modified.

  65. You know Paul….. Elaine may not be able to respond in kind…. But if you don’t like the post, thread, blog and/or people you are welcome to move on at anytime you want….. You just started attacking Elaine…. But you have a buddy that attacks every post Elaine does….. Maybe you need a new line of work or a break….

  66. The newest decision is based upon legislation which can be overturned as well…. Pick and choose what you support much….

  67. Paul,

    You’re the one who has been kvetching all morning. You don’t like the way I do things–then don’t read my posts. Or maybe you’d prefer to write to Jonathan with a list of complaints about me–and suggest to him that he tell me to change the way I do things at RIL.

  68. Elaine – actually, I am commenting on your style. I think I have very civilly explained my position about your style. I have even complimented you. Unlike some others I do not like running to mommy or daddy to have them settle things. I do not think you are going to change. However, I think it would not hurt you to realize what it is you are doing and take stock of that. It is the teacher in me, Elaine. As you know, it never goes away. ;)

  69. The Tyson thread is a recent example of “beating a dead horse.” There are many others. But, here’s the thing, in a libertarian’s mind a person has a right to point out something that bothers them, and the other person has a right to say “tough titty.” That is what has occurred here and I think it’s healthy. What’s the big deal?

  70. “What’s the big deal?” Well, that’s mostly a rhetorical question, but this is the US, anyone is free to reply or not.

  71. Elaine,

    Charlton might be best to answer this….. Is a person with multiple personalities able to answer for the other?

  72. Elaine,

    Nick had a question, well with the other dribble one wouldn’t know….. I’m probably getting reported for this….

  73. “However, I think it would not hurt you to realize what it is you are doing and take stock of that. It is the teacher in me, Elaine.”

    Oh, puh-lease.

    Many of us appreciate Elaine’s style, postings, etc. and like her followup articles and links, as well.

    One has to wonder why some folks are here?

  74. Exactly AP. I suspect I would rather have had Elaine as a teacher for my children and grandchildren above other teachers here. Elaine, I know I’ve also told you this before, I appreciate the effort and clarity you put into your blog posts, I’m sure most here would agree. Thanks Elaine for what you do and who you are. If I emulated anyone it would be you.

  75. Annie – I know that you, Elaine and AY backstop each other all the time. I have no problem with that. ap – I am here because of people like you. :)

  76. ap – I am here because of people like you. :)

    Said with a smile. Of course.

    Well, you’ve met your match, “Paul”.

  77. Bullies abound… here, there… and on the streets of America.

    (I hate them too, Annie.)

    If the shoe fits, right?

  78. Annie – if ap is my match I surely cannot be bullying. Bullying would be trying to guilt people into leaving the site because they do not agree with the consensus. Or calling them names, or baiting them. At what point have I bullied you, Annie?

  79. Paul Schulte wrote: “ap – I am here because of people like you.”

    And what kind of person would that be, “Paul”?

  80. Paul,
    Please concentrate on a person’s arguments as opposed to complaining about how they are presenting their evidence. Evidence that proves one’s point from several different sources may be similar, but the sheer numbers of the expert opinions adds to the weight of the argument.

  81. rafflaw – the sheer number of people parroting the same thing does not add to the weight of the argument. And as I have said, and you should agree, for right now, the Supreme Court has spoken.

  82. http://talkingpointsmemo.com/livewire/john-paul-stevens-campaign-finance-mccutcheon-john-roberts

    Retired Justice John Paul Stevens is taking aim at the Supreme Court’s recent 5-4 decision to eliminate the limit on a person’s aggregate expenditures to political candidates and committees in an election cycle.

    “The voter is less important than the man who provides money to the candidate,” he told the New York Times, criticizing what he views as the premise of Chief Justice John Roberts’ controlling opinion. “It’s really wrong.”

    Before he retired in 2010, Stevens was outspoken in defending the legality of campaign finance limits. Most famously he wrote the scathing dissent against the Citizens United ruling that opened the floodgates for unlimited independent expenditures to influence elections. Now he’s taking aim at the McCutcheon v. FEC, written by Roberts, in which the same five justices dealt another blow to campaign finance regulations.

    Stevens told the Times’ Adam Liptak that the very first sentence of Roberts’ opinion — “There is no right more basic in our democracy than the right to participate in electing our political leaders.” — was misleading. “The first sentence here is not really about what the case is about,” the former justice said.

    He posited that the decisive opinion reflected “an incorrect view of the law” but allowed that it was consistent with the reasoning in Citizens United. “The opinion,” he said, “has the merit of being faithful to the notion that money is speech and that out-of-district money has the same First Amendment protection as in-district money.”

    Stevens tore into Roberts and the Supreme Court’s conservative tilt in a separate interview with New Yorker legal analyst Jeffrey Toobin.

    “Sam Alito replacing Justice O’Connor was a very significant change,” he told the magazine in an article for its forthcoming issue. “He is much more conservative. And, as for John Roberts, he is much more in the direction of protecting the rights of very rich people to donate money to campaigns than [former Chief Justice] Bill Rehnquist ever was.”

    Stevens, who turned 94 on Sunday, has written a new book called “Six Amendments: How and Why We Should Change the Constitution” that’s due to be released this week. “

  83. I appreciate the help on the war on Elaine…… I am pleased that there are others whom feel the same way that don’t mind defending another’s point of view….. It appears we have a bully puppet….

  84. Back when we were the Exceptional Nation and we tried all the Nazi criminals and, perhaps not criminals, at Nuremberg after WWII we went after the Nazi secret police, army, navy, police, and judges. If you Google search: The Judges Trial you will see how we prosecuted for crimes against humanity guys like Roberts. If an Exceptional collection of Nations States were to hold Nuremburg Trials today for crimes against humanity the collection of defendants could include: Cheney, Bushie, Roberts and all the CIA, NSA and some FBI chiefs. They could go back and begin with the crimes of McUltra, Cointel, and go forward to today.

  85. (Paul. I have a pretty good grip on “the answer”…,”grasshopper”. Now, have a good day.)

    Thanks for the links, swarthmoremom.

  86. Justice Stevens is the one who wants to amend the Constitution to take our rights away. Not sure I am following him.

  87. You are welcome, ap. Next they will proclaim that Ford appointee Justice Stevens is a far out leftist.

  88. Paul,
    First of all, what you consider as parroting similar opinions or evidence on a subject does add to the weight of the argument one or more people are making. Secondly, it is not your job, or my job to decide how one presents their opinion. Thirdly, yes the Supreme court has “spoken”, but the Supreme court deciding on an issue hasn’t stopped the House from voting approximately 50 times to defund the ACA after the Roberts Court approved its constitutionality.

  89. Have you read Justice Steven’s book Paul? What rights is he suggesting be taken away? The right of unlimited campaign spending that was actually created by the Supreme Court?

  90. rafflaw – since the ACA is legislation it can be amended, defunded or overturned. And there are a couple of court cases in the pipeline that might do just that, using a different tack. This particular case is a freedom of speech issue which may or may not come up again. But we probably will not see it for awhile. So beating our heads against the wall one way or the other is not going to help.
    I am sure you are aware that the Supreme Court does not count the number of amicus briefs on one side and weighs them against the number on the other side and then decides the case. They weigh the actual arguments. Whether you or I agree with the arguments they accept is neither here nor there.

  91. Paul said: “There is no “War on Elaine” for all of you paranoids out there.”

    One man’s “paranoia” is another man’s “heightened awareness”, Paul. :-)

  92. Since campaign finance is regulated by the FEC and related code of federal regulations it too can be amended….

  93. I have seen the changes to the Constitution by Justice Stevens, one is that only militia could be armed. If you Google news him several articles have the changes to the Constitution he is suggesting. However, it would never get through. He is asking for limited campaign spending as an amendment.

  94. “Justice Stevens is the one who wants to amend the Constitution to take our rights away. Not sure I am following him.”

    Laughing…

  95. “Next they will proclaim that Ford appointee Justice Stevens is a far out leftist.” – swarthmoremom

    swarthmoremom,

    Yes, “a far out leftist” and “dangerous”, even, according to some.

  96. ay – can you have a war of non-aggression. Because I do not agree with something Elaine posts am I at war with her? Does that cause an issue? Or do you want this blog to be an echo chamber? Would that make you more comfortable?
    It was Annie that I was responding to about the bullying, not you – ay. This is just the type of name calling I was talking about.

  97. Just to make everyone happy Stevens is a far leftist. Now, everybody happy? He is not dangerous because he will never get the changes and he has no power anymore.

  98. Actually Paul, you may have forgotten an article written several weeks ago that showed the Chamber of Commerce had a 90-95% success rate with cases it filed an amicus brief, in so I am not so sure that the Roberts majority does not weigh who is supporting which side.
    Secondly, why would the House do 50 votes to defund or overturn legislation when the Supremes approved it and the Senate won’t vote on nonsensical legislation? Could it just be politics that causes them to do that vote which cost the taxpayers large amounts of our money?
    Finally,
    Justice Stevens isn’t the first to suggest that the second amendment was designed only for militia purposes. That was the ruling of the court for decades. You also might want to look into why the founders were so concerned to make sure militia’s right to arm was protected. Especially in the southern colonies.

  99. SWM, I’ve read excerpts of Steven’s book. What seems to be one of his biggest problems w/ the losses he suffered while on the bench is 2nd Amendment issues. Regardless of their political point of view, I like politicians, judges, athletes, etc. who bow out gracefully. It’s unseemly in my opinion to whine about all his losses while on the court. And, I would say the same about Scalia, who probably will not bow out gracefully either. O’Connor has been my favorite in my lifetime. She’s written and spoken after retirement, but not in the whiny tenor of Stevens.

  100. GBer’s, A few of us are getting eaten alive on the gambling thread. Assistance would be appreciated.

  101. Deletion notice: I have had to delete two or three comments by Anonymously Yours, and one from Dredd and Paul respectively. Again, we love to have opposing views on this blog. No need to make it personal. If you cannot discuss such subjects without going personal, please do not comment.

  102. Paul, Hang tough, bro! The ganging up is not nearly as bad as it was. Hard to believe, but the archives prove it so. It is less of an echo chamber, more civil and diverse.

  103. Dredd – just because you do not agree with his decisions does not mean Roberts has violated his oath of office.

  104. Paul Schulte

    Dredd – just because you do not agree with his decisions does not mean Roberts has violated his oath of office.
    ===================
    Nor anyone else.

    Thus, logical deduction: that is not my reason for saying that.

    Just because you say something incoherent does not make it coherent.

  105. rafflaw – I do remember the article on the Chamber. But that has nothing to do with the number of amicus briefs.

  106. Dredd – Bill Maher, good progressive that he is, is hardly a Constitutional scholar. Again, how did Roberts violate his oath of office.

  107. Corporate personhood is the legal concept that a corporation may be recognized as an individual in the eyes of the law. This doctrine forms the basis for legal recognition that corporations, as groups of people, may hold and exercise certain rights under the common law and the U.S. Constitution. For example, corporations may contract with other parties and sue or be sued in court in the same way as natural persons or unincorporated associations of persons. The doctrine does not hold that corporations are flesh and blood “people” apart from their shareholders, officers, and directors, nor does it grant to corporations all of the rights of citizens.

    Since at least Trustees of Dartmouth College v. Woodward – 17 U.S. 518 (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts. In Santa Clara County v. Southern Pacific Railroad – 118 U.S. 394 (1886), the reporter noted in the headnote to the opinion that the Chief Justice began oral argument by stating, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”[1] While the headnote is not part of the Court’s opinion and thus not precedent, two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania – 125 U.S. 181 (1888), the Court clearly affirmed the doctrine, holding, “Under the designation of ‘person’ there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution.”[2] This doctrine has been reaffirmed by the Court many times since

  108. Paul Schulte

    Corporate personhood is the legal concept that a corporation may be recognized as an individual in the eyes of the law.

    =================
    Corporations are created by state law, not federal law.

    What they are is a state matter.

    The conservative activists on the court are making legal saucage that will rot with time but in the mean time has no food value.

    It is poison.

  109. Dredd – well as long as the Supreme Court doesn’t allow same-corporate marriages, I will be okay. :)

  110. The other part of the story is the development of corporations, which is an interesting story in itself. Adam Smith didn’t say much about them, but he did criticize the early stages of them. Jefferson lived long enough to see the beginnings, and he was very strongly opposed to them. But the development of corporations really took place in the early twentieth century and very late in the nineteenth century. Originally, corporations existed as a public service. People would get together to build a bridge and they would be incorporated for that purpose by the state. They built the bridge and that’s it. They were supposed to have a public interest function. Well into the 1870s, states were removing corporate charters. They were granted by the state. They didn’t have any other authority. They were fictions. They were removing corporate charters because they weren’t serving a public function. But then you get into the period of the trusts and various efforts to consolidate power that were beginning to be made in the late nineteenth century. It’s interesting to look at the literature. The courts didn’t really accept it. There were some hints about it. It wasn’t until the early twentieth century that courts and lawyers designed a new socioeconomic system. It was never done by legislation. It was done mostly by courts and lawyers and the power they could exercise over individual states.” (Corp Germ > Corp Seed > Corp Monster).

  111. Paul Schulte

    Dredd – well as long as the Supreme Court doesn’t allow same-corporate marriages, I will be okay. :)
    ===============
    The supreme cornservative five are in illegitimate relations with the fiction they think is a person.

    They are legal jerk offs.

  112. Dredd,

    Something kinda funny is that conservatives have claimed Roberts violated his oath of office by affirming the ACA…… And another time administering the oath of office to Obama….. My my some have short convient memories….

  113. Dredd – since corporations seem to have been recognized as a legal person since the early 19th century, I am not sure why you think they are the only ones who think that way. Own stock? That is in a corporation, Mutual funds? Stocks in corporations. Own an smart phone? Built by a corporation. Use the Internet today? Brought to you by a corporation.

    Just don’t understand this intense dislike you seem to have for corporations.

  114. I think conservatives, myself included were horrified when he voted to uphold Obamacare based on the ‘fact’ that it was a tax. I do not remember anyone saying he violated his oath of office. And as chief justice he can or cannot deliver the oath of office to the incoming President. It goes with the job, just like presiding over an impeachment trial of a President.

  115. Dredd – what we have come to in this discussion of Robert’s violating his oath of office is that you cannot back it up. If you could have you would have jumped at the chance.

  116. Paul Schulte (schulte means trained, indoctrinated BTW)

    Dredd – since corporations seem to have been recognized as a legal person since the early 19th century …
    ================
    They were always aborted before they became a person (what is that for you guys now, soon as you pull out?).

    They were conceived for a specific purpose, like building a bridge, then were aborted once the bridge was completed.

    Once upon a time when there was no T-Bagger mental malfunction, they knew that calling imaginary things people would get you into the looney bin. Now it gets you in the T-Bag.

    Like Sarah Palin in the following Bill Maher new rules that explains why you have no working memory (they did not even invite corporate persons to the convention!):

  117. Schulte also means to nurture. to train, to indoctrinate. This is why I made a great teacher. :) Thanks for looking it up. Before the Internet I never knew.

  118. AY – I think the Kenya site is done by Obama’s relatives. Several seem to think he was born there.

  119. Dredd – I went to your link but it went to your blog, it is bad form to cite yourself, and it had to do with the President of the United States. Have another link that is not to yourself?

  120. Deletion notice: I have again had to delete numerous comments by AY and Dredd in this thread. I fail to understand why this is necessary. Both AY and Dredd continue to post nasty and personal attacks. When I looked at the alleged impetus for these comments, I have not found violations warranting deletion. I truly do not understand why it is necessary for me to continue to do this. We are simply not interested in juvenile personal jabs at other posters. It is time to move on, please. If you cannot discuss these issues without taking pot shots at opposing posters, there is a universe of other blogs for you to go to. I have no dog in this fight. I am not interested in the merits of the issue in reviewing comments and I play no favorites. I simply ask that you act as adults. This site was created originally for my students, who continue to frequent the site. I try to teach civility and respect for opposing views in my class and on this site. That has proven a relatively easy standard for 99 percent of our posters. I fail to see why it is such a challenge for others. Please comply with the policy or stop commenting on this site. Your cooperate would be greatly appreciated.

  121. This is crazy Jonathan….. That was directed at you….. You deleted it…. It’s your blog…. You can let the rude ones ruin it…. It’s your choice…. Again… What do they have on you?

  122. AY, I did not delete one but a series of your comments. I cannot imagine that you honestly believe that these were comments in compliance with our policy. I did delete one comment directed at me because of digs at individuals and the fact that it came as part of a series of postings that had to be deleted. I take such comments seriously when directed to me, but they are more persuasive when they are not part of a series of posts violating our policy. Once again, you can email me with any comment that you believe violates the rule. I will try to get over the to the site unless I am in court. Finally, no one has anything on me AY. I have no desire to delete any posts and I only do so in the clearest possible cases. Indeed, I resent having to repeatedly delete posts from the same people. You have insightful comments and views expressed on this blog. I value those posts and accordingly I fail to understand the difficulty in complying with our civility rule.

  123. I recall a very good analogy made about drinking establishments, the exercise of rights and the use of and actions taken in preservation of the commons in such places.

    This is (still) no different, Jonathan.

    Cause.

    Effect.

    Just about everyone recognizes the causation.

    But some still don’t.

    It’s a simple matter of proper correlation because while correlation is not always causation?

    Sometimes it is.

    You seem perpetually surprised that people respond when attacked and usually in kind.

    That is a most curious perspective on human nature that seems at odds with the observable.

    And Jesus wept.

    But Buddha?

    He is laughing.

    And so it goes.

  124. Wow Jon….. Maybe you need a closer talk with your guest bloggers about who instigates what….. I take exception when one of your guest bloggers is continually attacked…. Are you familiar with parallel ip addresses or VPN…. You might be surprised…. I know Elaine does not need my assistance…. But you as the owner of this blog should at least have the gumption to defender her when she is attacked …..

  125. “If someone has a gun and is trying to kill you, it would be reasonable to shoot back with your own gun.” ― Dalai Lama XIV

    He advocates shooting them to wound if at all possible, but even such a renowned pacifist realizes that self-defense is an inherent right beyond law.

  126. Gene – I hope the Dalai Lama realizes that in stressful situations the first thing to go is your fine motor skills. Wounding???? Right. That’s why cops can shoot 150 rounds and never hit anybody.

  127. I’ve been asked to clarify the “bar analogy”, so here is the quote I referenced (from an out of camera conversation):

    “A bar is a social setting much like a blog; a commons. People are free to go to bars and drink (engage in free speech) as they will. If you’ve had too much to drink and becoming a danger to yourself or staggering about making a mess, you will be called a cab and sent on your way ([Ed. Note: references to specific posters deleted and/or banned in the past omitted.]). If you start getting abusively personal with patrons or staff ([Ed. Note: references to specific posters omitted.]), you will be ejected. Sometimes permanently. These limitations on access to the commons curtail individual rights in small ways, but they are done to preserve both the stability of the commons and the rights of other patrons (and staff) to enjoy the commons. This reasoning is analogous to the reasonable restrictions on free speech found at law, from fighting words to defamation to incitement. The inability and/or unwillingness to protect the commons because X has the right to drink in a given establishment will (and I say this having been a bouncer) always lead to ruin.

    I’ve said it before. I’ll say it again. I’ll say it because I do care.

    Absolutes, be it in politics, ethics or economics rarely work in practice. When they do, it is an exception, not the rule.

    Free speech in the commons is no different.”

  128. Sidebar:

    “I try to teach civility and respect for opposing views in my class and on this site.”

    Really. Civility aside, for a mere veneer of pseudo-politeness is not the same as true civility. I know you disagree, but . . . bless your heart.

    Let’s look at respect. Do you teach that all opposing views are worthy of respect simply because they are in opposition or do you teach that positions earn respect on the merits of their logic and evidence in support of that logic? Respect is earned, not due. And it is earned in argument based upon logic and evidence. Call it technocratic if you will, but this application of the scientific method works so well it is the core foundation of legal argumentation and the rules of evidence. Logic and best evidence practices are a way to interrogate the nature of reality to discern truths. Specious claims, bad logic and poor evidence are the tools of the weak minded and the purposefully deceptive. Propaganda in the most pejorative sense of the word works because it discourages reasoning and fact checking. Not every statement is opposition is worthy of respect and if one accepts the proposition that unless someone is arguing a Devil’s advocate position, then they own the positions that they take. Respecting someone’s right to have an opinion and express it does not translate to a duty for others to respect that opinion. That right however does not exist in a vacuum nor without context.

    Preserving the right of dissent and the right to free expression doesn’t mean you throw standards and common sense out of the window.

    Ideas and arguments of positions in support of stand or fall on the merits.

    At least if you value critical thinking.

    So. Do you teach critical thinking? Or blind adherence to formality over function? Or that there is some higher goal than reason, equity, evidence and logic in the pursuit of justice? Because aside from the “cookie cutter” aspect of a legal education, I thought making critical thinkers was part of the program too.

    Or maybe that was just the Jesuits.

  129. Gene:

    Why is it necessary to comment only with jests and disparagement toward Professor Turley? Couldn’t we instead have your insights provided for the various articles posted here?

  130. Darren,

    “Couldn’t we instead have your insights provided for the various articles posted here?”

    Like the superb articles you post?

  131. “Why is it necessary to comment only with jests and disparagement toward Professor Turley?”

    Criticism isn’t jest or disparagement, Darren. Especially when it is both logical and valid. It’s serious as a heart attack even if I do couch it in humor. I’m prone to satire and lampooning. It is my nature.

    He himself has said he has no problem with criticism.

    I’ll quit commenting on the mess here when people quit sending me email about the ongoing train wreck. I don’t write for this blog anymore nor do I follow it nor do I feel the need to participate in the type of community he is shaping. I hadn’t even looked at the site for about a week until I got seven – count ’em (7) – emails today complaining about this thread. However, the volume alone prompted me to look out of morbid curiosity if nothing else.

    He can ignore the root of the problem all he likes.

    I’ll point it out when I feel like it.

    “Couldn’t we instead have your insights provided for the various articles posted here?”

    Under the current inequitable conditions where instigators are encouraged and when those they attack fight back, they are the ones penalized?

    What do you think?

  132. Gene

    One could argue that it might not be worth the heartache or annoyance to have to be expected by those who have complained about how this site is managed to then submit to their demands by returning to the website and call it into question when it appears most likely it will not change to one’s liking.

    I wouldn’t want to be expected to be the arbitrator of this when it seems there are other issues in life more pressing. There just comes a time to let things go rather than shout at the storm and expect it to change by invoking another tempest.

    From what I gather the Flowers for Socrates website is doing well for you. Wouldn’t it seem unpleasant to have to experience someone coming from here and offering nothing other than criticism in how you run your website and basking in schadenfreude that it didn’t meet with the approval of the commentator?

  133. Darren,

    You mistake critic for arbiter. The results of that criticism? Be they storm or calm? Is of no consequence to me. Change? I fully expect Jonathan to keep beating his head against the wall until he figures it out for himself. One can only point to the path. Each must choose to walk it or not for themselves.

    Also, what prompted my comment was the inequity one of your fellow GBs is subject to, not an expectation of change.

    And for the record, I’ve had people from here come to FFS and complain/suggest changes/etc.

    I’ve either addressed those concerns or adopted the suggestions.

    Like in a democracy.

    Anything else?

    Or would you care to address the substance of the arguments above instead of . . . whatever it is you are trying to accomplish.

  134. Anything else?

    Or would you care to address the substance of the arguments above instead of . . . whatever it is you are trying to accomplish.
    ~+~
    No, nothing else. I said what I wanted and made a suggestion. How you would like to consider it is your choice.

  135. Democritus is better known as one of the fathers of atomic theory. And Democritus wanted people to be cheerful, not necessarily laughing.

  136. Paul Schulte

    Dredd – I went to your link but it went to your blog, it is bad form to cite yourself, and it had to do with the President of the United States. Have another link that is not to yourself?
    ==================
    A blog is not a person either.

    Do you have lots of imaginary friends?

  137. Dredd – I know that you have figured out the ins and outs of WordPress (which I have not) so I would like to ask a favor of you. When you want ME to respond to a link you have sent address it to me and use the format you have at 8:17 am. Because of the lighting in my office, if you embedded the link, like you have been doing, it looks the same as the regular font for this blog. It will save us both a lot of time if you use the technique used at 8:17 am.

    Considering your response, can I assume that the answer to “Have another link that is not to yourself?” is no.

  138. Justice Stevens Suggests Solution for ‘Giant Step in the Wrong Direction’
    By Adam Liptak
    APRIL 21, 2014
    http://www.nytimes.com/2014/04/22/us/politics/justice-stevenss-prescription-for-giant-step-in-wrong-direction.html?_r=0

    Excerpt:
    WASHINGTON — Justice John Paul Stevens, who turned 94 on Sunday, is a mild man with an even temperament. He has a reverence for the Supreme Court, on which he served for almost 35 years until his retirement in 2010, and he is fond of his former colleagues.

    But there was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the court had made a disastrous wrong turn in its recent string of campaign finance rulings.

    “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.”

    He talked about what he called a telling flaw in the opening sentence of last month’s big campaign finance ruling. He filled in some new details about the behind-the-scenes maneuvering that led to the Citizens United decision. And he called for a constitutional amendment to address what he said was the grave threat to American democracy caused by the torrent of money in politics

    Last month’s decision in McCutcheon v. Federal Election Commission struck down aggregate contribution limits, allowing rich people to make donations to an unlimited number of federal candidates.

    Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.”

    But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

    The plaintiff, Shaun McCutcheon, an Alabama businessman, had made contributions to 15 candidates in the 2012 election. He sued so he could give money to 12 more. None of the candidates in the second group was running in Alabama.

    Mr. McCutcheon was not trying to participate in electing his own leaders, Justice Stevens said. “The opinion is all about a case where the issue was electing somebody else’s representatives,” he said.

    “The opinion has the merit of being faithful to the notion that money is speech and that out-of-district money has the same First Amendment protection as in-district money,” he said. “I think that’s an incorrect view of the law myself, but I do think there’s a consistency between that opinion and what went before.”

    He was referring to the court’s earlier campaign finance decisions and, notably, to Citizens United. How that case was transformed from a minor, quirky case about a tendentious documentary into a judicial landmark has long been a source of mystery.

    For starters, the case was argued twice. The first time was in March 2009, meaning it should have been decided by the end of the term that June. I asked Justice Stevens whether he, as the senior justice among the four dissenters, would have assigned the 2009 dissent.

  139. Hey Schulte: If you want to have a private conversation with someone, get their email, or in Dredd’s case, go to his blog. This is a public chatroom, where there is no such thing as eavesdropping.

    If you make a comment, be prepared for a response from any quarter.

    BTW, Breitbart?! You’ve just effectively admitted that you condone utter dishonesty and widespread lying. Basically, you might as well admit to being a liar, yourself, if you’re going to repeat anything that guy or his followers had to say

  140. RTC – you have not been playing along, so I will bring you up to speed. Dredd and I have been having a public discussion regarding Chief Justice Roberts. AY – is not part of that discussion, but can play if he wants, just as you can if you want.
    BTW, that is a pretty broad brush you are painting with regarding Breitbart. Care to back it up with some proof?

  141. RTC wrote:

    “Hey Schulte: If you want to have a private conversation with someone, get their email, or in Dredd’s case, go to his blog. This is a public chatroom, where there is no such thing as eavesdropping.

    If you make a comment, be prepared for a response from any quarter.”

    Yep, RTC… took the words right out of my mouth.

  142. We know that “anyone can play” — that’s the way it works!

    AY gets “to play” in any discussion that he chooses, albeit in a civil fashion. And the civility thing cuts both ways. That’s the way it works! (-;

  143. ap – AY spent yesterday complaining about my commenting on Elaine style. Now today he is commenting on my style. If AY or you or any one else want to play along the question under discussion is “Exactly how did Chief Justice Roberts violate his oath of office?”

  144. Anonymously Yours

    Paul,

    “At the risk of being banned…. Quit baiting….”

    *****

    Paul Schulte

    “ap – AY spent yesterday complaining about my commenting on Elaine style. Now today he is commenting on my style.”

    *****
    Paul,

    Are you admitting that “your style” is baiting people?

  145. And after some conversation on the matter, I’m prepared to say that I may have been wrong about Soros, though I’d stipulate that he hasn’t been seen in quite a while. That’s the result of having an open mind and strong-sense reasoning.

    It’s pretty certain that Breitbart, however, is very dead, and good riddance. There is an overwhelming abundance of proof concerning Breitbart’s mendacity. Small children and farm animals know the guy wasn’t to be trusted. Maybe you want get on board? Trust me on this, you’ll sound much more intelligent if you never mention his name again.

    I’m kidding, I know you’ll bring up his name every chance you get.

    BTW, since we’re referring to other threads today, remember how you said none of Jane Goodall’s studies related to humans? Turns out, when she discovered that chimps fashioned twigs to be used as tools, Dr. Leakey declared that we must redefine humans, or tools, or include chimps in our definition of humans. And that was only the start of Goodall’s insights into our understanding of humans.

    But let me guess, Breitbart turned up evidence that Leakey was a well known communist who used heroin and consorted with prostitutes.

  146. Those chimps better not fashion sticks into guns or they will be ousted from the jungle by virtue of the zero tolerance policy.

  147. Elaine – the answer to your question is no. Just because AY made the comment does not make it correct.

  148. RTC – we redefined the use of tools. Dogs use humans as tools. Wolves do not. My dog comes to get me to either be fed or let out. I am her tool. Not always a compliant tool, but still her tool.

  149. AY — the answer was not an answer to that question. He did prove that Obama had violated his oath of office though. :)

  150. AY – the answer submitted does not answer the question asked. If an appropriate answer is not forthcoming then it means that the statement is without proof.

  151. Paul,
    No one person dictates what anyone on this blog wants to discuss. If you don’t like what someone is saying, move along and choose a different thread or ignore them.

  152. Raff,

    As you can see…. I’m the one that should be scolded….. Paul and Nick are pure…. They would never provoke or bait anyone….. I am the one that should be admonished…..

  153. rafflaw – I am so glad to hear that. Others on here have often been offended when I tried to add a slightly different twist to the same general subject. Thanks for the blessing. :)

  154. Deletion Notice: Anonymously Yours and RTC have had posts deleted for violation of the civility rule. Please comply with our policy if you want to continue to post on this site.

  155. Good…. Now Jon…. If you can see… I haven’t posted on anything else…. I was defending myself…. If I can’t defend myself after being attacked… Then why continue here…. You are unequally enforcing your rules of civility…..

    You can’t or won’t defend your guest bloggers…. When they are attacked… What good does it do to even post here anymore….

  156. AY, your post was deleted for continuing to engage in name calling or personal attacks. You did not send any post to me by email that you claim violates the policy but I looked and I did not find a violation. You clearly either refuse to comply with the policy or find it impossible to comply. Indeed, you now have the record of deletions by my count in the history of this blog. You have been invited to engage with us on the merits of these important issues. However, you have continued the pattern of personal digs. We all understand that you feel singled out and that this blog is run in a facially absurd fashion. It is time to move on so please conform with our policy or seek a dialogue on a blog that you consider better managed.

  157. Sometimes a change of scenery is helpful. Why doesn’t everyone mosey over to the new Supreme Court post on affirmative action. Lot’s of substance there.

  158. Two quotes for you, ap.

    “You see, Doctor, God didn’t kill that little girl. Fate didn’t butcher her and destiny didn’t feed her to those dogs. If God saw what any of us did that night he didn’t seem to mind. From then on I knew… God doesn’t make the world this way. We do.” – Rorschach

    “Go crazy? Don’t mind if I do!” – Homer J. Simpson

  159. Paul,
    I am in no position to “bless” anything. Only Prof. Turley can do that. I am merely suggesting that you and no one else can decide what is discussed and how it is discussed and presented. Once again, only Prof. Turley has that authority.

  160. rafflaw – this is your direct quote “No one person dictates what anyone on this blog wants to discuss.” That is what I responded to. :)

  161. Propaganda can be defined as style as an obfuscation over substance at the expense of truth, thus illustrating that methodology impacts veracity. Which in turn calls in to question the motives of those using suspect methodology. Even non-sequitur can be causal in semantics and rhetoric.

    Just sayin’.

  162. Thanks, Gene. I’m quite certain that you understood the direction that wind was blowin’… just as I’m sure that Buddha is laughing.

    “God doesn’t make the world this way. We do.” -Rorschach

    And what a fine mess, huh?

    As to Homer? Thanks for the laugh and an excuse to post this:

  163. The American Government Is Open For Corruption
    By Charles P. Pierce
    April 2, 2014
    http://www.esquire.com/blogs/politics/mccutcheon-decision-campaign-finance-040214

    Excerpt:
    And John Roberts apparently resides on Neptune. And, in case you didn’t get the point.

    “Finally, disclosure of contributions minimizes the potential for abuse of the campaign finance system. Disclosure requirements are in part “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens United, 558 U. S., at 367 (quoting Buckley, supra, at 66).They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Disclosure requirements burden speech, but, unlike the aggregate limits, they do not impose a ceiling on speech.”

    Having earlier argued that there was a First Amendment issue to be found in the aggregate limits because they hindered an individual’s right to participate in the political process — It is here helpful to note the everlasting irony of Antonin Scalia’s view of Bush v. Gore. There is no individual right to vote, but an individual’s right to purchase a candidate must be untrammeled — but here, Roberts is saying it plain. To restrict money is to restrict speech. Period. And the only real legal restraint on the wholesale subletting of American democracy is John Roberts’s strange devotion to “disclosure” as some sort of shaming mechanism within the electorate. Good luck with that one.

    Justice Stephen Breyer takes up a lot of these points in his dissent, most notably, the majority’s laughably narrow definition of what political corruption actually is — that political corruption exists only if you buy a specific result from a specific legislator. But it hardly matters. The five-vote majority in favor of virtually unlimited corporate and individual spending in our elections is a rock solid one. Four days after almost every Republican candidate danced the hootchie-koo in Vegas to try and gain the support of a single, skeevy casino gazillionnaire, the majority tells us that there is no “appearance of corruption” in this unless somebody gets caught putting a slot machine in the Lincoln Bedroom on behalf of Sheldon Adelson. Money talks. Big money repeats itself, over and over, age after age.

  164. The ‘McCutcheon’ decision explained — more money to pour into political process
    Welcome to the dawn of the ‘jumbo’ joint fundraising committee
    By Michael Beckel
    http://www.publicintegrity.org/2014/04/22/14611/mccutcheon-decision-explained-more-money-pour-political-process

    Excerpt:
    Will McCutcheon affect state laws too?

    McCutcheon’s ripple effect could soon be coming to a state near you, and with it, more money from wealthy donors. At least eight states — and possibly as many as 20 — could see laws overturned, depending on how regulators, government officials and judges interpret the McCutcheon ruling.

    How is the McCutcheon case different than Citizens United?

    The Citizens United decision in 2010 didn’t affect contribution limits to candidates or parties. It affected spending. There’s a difference. Citizens United, along with a lower court ruling, allowed for unlimited donations from corporations, unions and individuals to go to super PACs and nonprofits, which, in turn, could spend the money on ads blasting or praising candidates. That’s not considered a corrupting influence because these groups are banned from coordinating their spending with candidates.

    Why are some people so concerned about McCutcheon?

    Campaign finance reform advocates are concerned about a sort of systemic corruption that may arise through the formation of jumbo joint fundraising committees. The leader — possibly a ranking party member — might become a sort of power broker, and the person who wrote the check would no do

  165. Paul Schulte

    AY – Dredd and I are in a discussion. You are not part of it.
    ==============
    Daylight prevails over darkness in my preferences, therefore AY is always welcome.

  166. Nick Spinelli

    Sometimes a change of scenery is helpful. Why doesn’t everyone mosey over to the new Supreme Court post on affirmative action. Lot’s of substance there.
    =============
    Yes, but not by the comment coup crew of two.

    Who continue the “I do not know what I am talking about but it never has mattered” mantra of denialism and forgetting, the two main “virtues” of mouthy fuels.

  167. Supreme Court’s abomination: How McCutcheon decision will destroy American politics
    Thanks to Scalia and co., the rich will now be able to buy politicians as effortlessly as they buy anything else
    Paul Campos
    4/2/14
    http://www.salon.com/2014/04/02/supreme_courts_abomination_how_mccutcheon_decision_will_destroy_american_politics/

    Excerpt:
    “Money talks,” Elvis Costello once observed, “and it’s persuasive.” The belief that this is especially true in the world of politics led to the passage of the Federal Election Campaign Act. In the aftermath of Watergate the FECA was strengthened in an attempt to limit the corrupting influence of money on politics, and, until 2010, the Supreme Court largely upheld Congress’s power to do so.

    That year the Citizens United case, which essentially found that the free speech rights of corporations were more important than legislative attempts to keep money from corrupting the political process, occasioned a great deal of outrage. But that case marked merely the beginning of what is likely to prove to be a series of increasingly successful assaults on campaign finance laws.

    And now, Wednesday, the next blow to attempting to keep the rich from being able to buy politicians as effortlessly as they purchase anything else has been struck by McCutcheon v. FEC, a Supreme Court case dealing with limits on how much money individuals can contribute to candidates.

    McCutcheon has now struck down overall limits on individual campaign contributions. This latest outburst of judicial activism in the struggle to render campaign finance laws completely toothless is merely accelerating a historical process that is coming to seem almost inevitable.

    To see why, consider the practical implications of the theory that weak or nonexistent limits on campaign finance will allow the rich to transform what is putatively a democratic republic into an unapologetic plutocracy.

    If money can buy the political outcomes desired by the super-wealthy oligarchs at the apex of our increasingly unequal economy, then there are only two possible ways to avoid this result. First, we can assume that that there is a strong distinction between law and politics, that judges make legal rather than political decisions, and that legal decisions, unlike political outcomes, cannot be bought.

    Or, in the alternative, we can construct a society that does not tolerate the sort of vast accumulations of individual and family wealth that would allow a tiny economic elite to buy both the legislative and the judicial processes.

    Pursuing the first alternative is obviously naive. If stupendous wealth is free to buy electoral results, it will also be free to buy judicial decisions as well. And, as the outcome in Citizens United demonstrated, this will not even require anything as crude as straightforward bribery.

  168. Opening the political money chutes
    By Richard L. Hasen
    April 7, 2014
    http://blogs.reuters.com/great-debate/2014/04/07/opening-the-political-money-chutes/

    Excerpt:
    The headline about a new Supreme Court opinion rarely tells the whole story. Rather, the detailed reasoning of the ruling often reveals whether a decision is a blockbuster or a dud.

    When the court writes broadly, it can eventually remake entire industries, government practices or areas of the law. Lawyers and lower courts scrutinize an opinion’s every line and footnote, pouring over the legal reasoning and noting subtle changes from the court’s earlier decisions in the same area.

    This is why it is fair to call last week’s Supreme Court ruling in the campaign finance case McCutcheon v. Federal Election Commission a blockbuster case. In McCutcheon, the court struck down limits on the total amount that an individual could give to federal candidates, parties and certain political committees in an election cycle.

    The ruling is itself significant, and will channel a great deal of money into the hands of party leaders — opening up new ways for big donors to buy access to elected officials. But just as significant is the court’s reasoning — which could well lead to courts striking down what remain of campaign finance limits, including limits on contributions to individual members of Congress. We could be on our way to politicians accepting multimillion-dollar contributions from a single donor.

    Elsewhere I have explained many of the subtle but significant shifts in reasoning and definitions that turn McCutcheon from a narrow holding on “aggregate limits” into a broadside against most campaign finance limits. This led Justice Stephen Breyer, in his dissent, to say that Chief Justice John Roberts’ majority opinion “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

    Among the most important changes in Roberts’ opinion was the court’s defining “corruption” narrowly as akin to bribery — which makes it difficult to justify any challenged campaign finance limit.

    While McCutcheon’s narrowing definition of corruption has gotten attention, a related change by the court majority in McCutcheon has been all but ignored: the virtual disappearance of the “appearance of corruption” as a basis for limiting campaign contributions. Its troubling disappearance demonstrates the extent to which the Supreme Court majority is willing to ignore political reality for the sake of its extreme free speech views.

    The Supreme Court’s 1976 opinion in Buckley v. Valeo for the first time set out the basic ground rules for determining when campaign finance limits are acceptable under the First Amendment’s right of free speech and association. It held that contribution limits (which it said only marginally impinged on free speech rights) could be justified by the government’s interests in preventing either “corruption” or the “appearance of corruption.” On the latter, the court explained, “Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.”

    Writing in Buckley, the court drew an analogy to its earlier decision rejecting a First Amendment challenge to a law barring federal employees from engaging in partisan activities: “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’”

    In the years since Buckley, the meaning of corruption has wavered between a narrow concern about bribery and quids pro quo on the one hand and broader concerns about “undue influence” on the other. Before Roberts and Justice Samuel Alito joined the court, a number of opinions on contribution limits defined the term “corruption” broadly, and the term “appearance of corruption” even more broadly. As Justice David Souter wrote in a 2000 case, Shrink Missouri: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”

    Appearance of corruption, then, worked as a stand-in for the absence of direct proof of money buying votes. The “appearance of corruption” recognized the public’s broader concern that money can skew legislative outcomes.

  169. Elaine,
    As Hasen suggests in your latest link, the concern is that there will be direct large donations directly to candidates and the removal of the “appearance of corruptions” language. I submit that the 90% success rate by the Chamber of Commerce in argued or briefed cases in front of the Supreme Court suggests that the purchase is already complete.

  170. I would suggest that the Chamber of Commerce is successful because they have picked cases that they feel they can win at the appellate level.

  171. Not So Risky Business: The Chamber of Commerce’s Quiet Success Before the Roberts Court – An Early Report for 2012-2013
    Doug Kendall
    Tom Donnelly
    May 1, 2013
    http://theusconstitution.org/text-history/1966/not-so-risky-business-chamber-commerces-quiet-success-roberts-court-early-report

    Excerpt:
    While most of the Supreme Court universe has been focused on the landmark civil rights cases on the Court’s docket this Term – blockbuster cases addressing affirmative action, voting rights, and marriage equality – the press has paid scant attention to the rest of the Court’s docket. Lost in this shuffle is an emerging story about the Supreme Court’s business-heavy caseload this Term and the Chamber of Commerce’s continued success before the Roberts Court generally. Although often ignored by the American public, these cases involve important issues with potentially far-reaching consequences for workers and consumers nationwide.

    This report is the latest in our continuing examination of the Chamber’s overall success before the Roberts Court. Since 2010, Constitutional Accountability Center has been tracking the Chamber’s Supreme Court activities and releasing related reports each Term. With the Court wrapping up the current Term’s arguments last week, now is a good time to check in on the Chamber’s track record so far and preview some of the significant issues still to be decided.

    The Chamber and the Roberts Court: An Update

    All told, the Chamber of Commerce has filed a whopping 18 amicus briefs this Term – just below its record number of 21 in October Term 2010. Overall, the Court will likely decide 76 cases this Term, meaning that the Chamber will have participated in roughly 24% of the Court’s decided cases.

    This in itself is an important story. For instance, during the final five years of the Burger Court – just before the first member of the current conservative bloc (Justice Antonin Scalia) assumed his seat – the Justices were hearing twice as many cases (between 153 and 160 per Term) as they are now. At the same time, the Chamber was filing in an average of seven cases per Term, or approximately 4% of the Court’s cases overall. Therefore, even as the Court is now hearing far fewer cases, the Chamber is participating in a greater number of them. Over the past thirty years, the Chamber’s participation rate has increased six-fold, from 4% in the early 1980s to 24% today.

    This dramatic increase in participation is a reflection, in part, of the Chamber’s success in shaping the Court’s docket. As SCOTUSblog reported in early April, the Chamber remains “the country’s preeminent petition-pusher,” as it filed the greatest number of amicus briefs at the cert. stage of any private organization during SCOTUSblog’s three-year study period (running from May 2009 to August 2012).[1] Importantly, the Chamber also has the highest success rate of any of the ten most active organizations during this period – with the Court granting 32% of the Chamber’s cases overall. Therefore, the Chamber is not just participating in cases that the Court decides to hear, but it’s also aggressively and successfully working to shape the Court’s docket.

    Finally, and most important, the Chamber continues to win the vast majority of its cases before the Roberts Court. Although many of the Chamber’s cases this Term are still pending, it’s already off to a strong start, winning six cases so far and losing only one[2] – a record that’s consistent with (and somewhat stronger than) the Chamber’s overall tally before the Roberts Court to date. Indeed, since John Roberts took over as Chief Justice and Justice Samuel Alito succeeded Justice Sandra Day O’Connor, the Chamber has prevailed in 69% of its cases overall (66 of 95 cases from 2006-2013).

    To place this overall success rate in historical perspective, it’s useful to compare the Chamber’s record before the Roberts Court to two other recent periods of relative stability on the Court – the Burger Court from 1981-1986 (the five Terms before Justice Scalia was confirmed) and the Rehnquist Court from 1994-2005 (the period that preceded the Roberts Court and involved no changes in Court personnel).

    Interestingly, the Chamber actually lost more cases than it won in the late Burger Court – amassing only a 43% success rate overall (15 of 35 from 1981-1986). The Chamber’s success rate then increased during the stable Rehnquist Court to 56% (45 of 80 from 1994-2005). And, finally, as mentioned above, it increased yet again during the Roberts Court to 69%. Therefore, during this 30-year period, the Chamber’s overall success rate has consistently improved – reaching its peak only in recent years.

  172. We sure do appreciate the effort that Elaine puts into her postings. So well written and backed up by fact.

  173. Paul,
    Do you really believe that? Or maybe it is because the Chamber has the best attorneys? Or maybe the success rate is related to the Roberts court majority members where the rate has skyrocketed? My money is on the latter reason.

  174. Some attorneys are far more successful with the Supreme Court than others. And they are getting more work.

  175. rafflaw,

    I think you’ll enjoy this Mark Fiore cartoon video from March 2013:

    Scalia Archie Bunker
    Let’s visit that lovable Supreme Court father figure, Antonin Scalia, as he sings his homage to race and equality in the United States.

Comments are closed.