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)
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)
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.
Paul,
At the risk of being banned…. Quit baiting….
“For those who work for a living the level of inequality in the U.S. is probably higher than in any other society at any time in the past, anywhere in the world …” (The Blog The Uncertain Gene and the Indoctrinated Dislike).
Dredd – so what does that have to do with Justice Roberts?
AY – Dredd and I are in a discussion. You are not part of it.
A different take on the aged former Justice Stevens:
http://www.breitbart.com/Big-Government/2014/04/21/Former-Justice-Stevens-Changing-The-2nd-Amendment-Is-A-Moderate-Proposal
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?
t=0
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.
And so it goes.
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.
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.
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?
Do know that Democritus was known as the Laughing Philosopher?
True that.
Democritus is better known as one of the fathers of atomic theory. And Democritus wanted people to be cheerful, not necessarily laughing.
“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?
Darren,
“Couldn’t we instead have your insights provided for the various articles posted here?”
Like the superb articles you post?
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?
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.
Ha-Hah!
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.”
“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.
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.
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 …..
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.