Montana Dissed Citizens United

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Patrick

Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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  1. Avatar Stillwater
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    says:

    Excellent work Patrick. IANAL, so I’ll fire in another direction: What they hell is wrong with Judge Nelson? He writes a devastating critique of CU then lamely concludes he has to support it anyway?!? WTF?Report

    • Avatar Patrick Cahalan in reply to Stillwater
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      says:

      “I fart in your general direction, Supreme Court.  Still, thou art Supreme in thy farty ways, and I am bound to tolerate your odiousness”.Report

      • Avatar Burt Likko in reply to Patrick Cahalan
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        says:

        That’s a crude but accurate distillation. Citizens United is the law of the land until and unless the Supreme Court reverses itself or the Constitution is amended. You don’t have to like it — just like you don’t have to like the Federal government criminalizing marijuana. You just have to acknowledge that it’s the law.Report

        • Avatar Patrick Cahalan in reply to Burt Likko
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          says:

          Crude but accurate was sort of what I was going for 🙂

          Question, Burt – since you’re more in the loop than not on these sorts of things.

          In order for the Supreme Court to reverse itself (or amend via a finding of more detailed circumstances), it has to have a new case to examine.  So as a principled (but still practical) judge, you have two competing obligations…

          One, to follow the law as it stands, and two to provide challenging rulings to the law when you believe SCOTUS to be in error… provided of course that, in your estimation, your ruling is something that SCOTUS can (and might) take up on merit.

          So in a way challenging an existing SCOTUS ruling can be regarded as good jurisprudence, provided that you are making a substantive challenge.

          That puts Judge Nelson in a difficult place if he finds CU a bad ruling, but his existing case provides no substantive difference wherein one can insert a legal lever and push, yes?Report

          • Avatar Kim in reply to Patrick Cahalan
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            says:

            wow, this is really insightful.

            You saw that black lady from Chicago a few years ago (the one the righties wanted to tar and feather?). Her perspective was “this is gonna be appealed, so I’m going to write the most flagrant decision I can get away with.” (this was in a case on civil liberties, probably around the Patriot act).

            She basically said, “I’m black and a woman, so I know you won’t respect my ruling anyhow, public at large. But hear me speak, and read my words.”Report

          • Avatar Burt Likko in reply to Patrick Cahalan
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            says:

            If I were a judge in Nelson’s position, I would do exactly what he did — set out all the policy reasons why it’s a bad decision and a bad result, then say, “But I am bound by the law in its current state, so I have to rule in a way that is clearly and obviously bad for society in general and contrary to the Constitution. Appeal me! Please!”Report

            • Avatar Patrick Cahalan in reply to Burt Likko
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              Oh, duh, of course.  Giving the plaintiff (or defendant) grounds to appeal up works as well.Report

            • Avatar Stillwater in reply to Burt Likko
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              says:

              Burt, So you disagree with the majority opinion here?

              Personally, I think the majority is doing the right thing wrt representing the interests of their state. By overturning the lower state courts decision that United is the law of the land, aren’t they effectively requiring a Federal court to hear a case regarding the limits of the United decision?Report

              • Avatar Burt Likko in reply to Stillwater
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                says:

                Second question answered first — they are at minimum trying to force the issue.

                As to the first question, a donation to a political campaign is inherently an expression of support for that candidate; it is inherently advocacy of a particular candidacy. Also recall that my concept of “rights” is that they are limitations on the power of government to act.

                So the issue for me is not whether a corporation is a “person” but rather whether the government possesses the power to regulate a corporation’s activity in the manner proposed by McCain-Feingold. As much as I like the idea of a clean election free from the corrupting influence of corporate money, I can’t reach an intellectually honest result other than one reasonably similar to Citizens United — there has to be some meaningful way for a corporation to engage in this sort of advocacy. If no such outlet exists as a result of statutory restrictions on how corporations can spend their money, then I think the government has overstepped the Constitutional limits on its power.

                I know my opinion is unpopular, and I do find this result of my intellectual approach to the issue distasteful. But that’s the result that I have to reach if I am going to be intellectually rigorous about this subject. But wait, it gets worse.

                It seems to me that this would be particularly true in Montana, even moreso than when considering the Federal constitution. Consider Article II, section 7 of the Montana state constitution, which reads in relevant part:

                No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.

                This is worded in a manner that is much more restrictive on the power of government even than the First Amendment (“Congress [and by incorporation, Montana] shall make no law … abridging the freedom of speech”). “Speech” alone is presumably a narrower category of communicative activities than “speech or expression.” And the phrase “No law shall be passed” fits rather squarely with my conception of rights as limitations on the exercise of governmental power. It’s not a question of whether the “right” is held by a corporation or a natural person; the question is whether the government can do this at all. It cannot.

                So I would not have reached the Federal issue at all. I would have found that the referendum statute of 1912 violated the state constitution.Report

              • Avatar jamie_2002 in reply to Burt Likko
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                says:

                A corporation is a legal entity created by government, with certain rights and powers granted to it, and certain benefits to its owners.

                How is the question of corporate personhood not relevant to what the government may or may not do to its own creation?

                Citizens United holds that the corporation is a “person” with rights beyond the strictures of the laws that define corporations. If a corporation is not a person, then its rights and powers are completely contingent on the relevant laws.

                Could a corporation in its own name bring suit against a state law that dissolved all corporations? Could an owner? If so, on what grounds– that their possession had been deprived of the privileges of person-hood?

                A related point on corporate personhood. The corporation for Public Broadcasting is a corporation, created by government with certain rights and powers. Can it claim personhood and contest the FCC regulations they face as infringements on their free speech rights? If not, why not? The claim that it is created by different laws with different rights and legal standing weakens the claim that corporate personhood escapes the limitation of corporate law.

                 Report

        • Avatar Pierre Corneille in reply to Burt Likko
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          says:

          Burt:

          Is it settled law that Citizens United applies to state-level regulations?  Also, judging just from what was quoted in the post, it seems like the Montana Sup Ct. was trying to claim there was a substantive distinction to be drawn between the Montana law in question and the federal one in Citizens United.Report

          • Avatar James Hanley in reply to Pierre Corneille
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            Is it settled law that Citizens United applies to state-level regulations?

            I’m not Burt, but I would think so.  It was an interpretation of the First Amendment, and states are bound by the First Amendment (via the 14th Amendment’s Due Process Clause).Report

            • Avatar Burt Likko in reply to James Hanley
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              says:

              Ding ding ding ding ding ding ding!

              Full point to James Hanley.Report

            • Avatar Pierre Corneille in reply to James Hanley
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              says:

              I guess I’m confused about how incorporation works.  I thought it was more piecemeal, ad hoc, and contingent.  I’m thinking of some case–I forget which one–that supposedly said, for example, that states must have juries for most criminal trials, but they need not necessarily be constituted the same way federal juries are.  But of course, I’m no lawyer.

              I’d still like to know if there are any distinctions that one might draw between the Montana law and the one challenged in Citizens United, but I know too little of both cases to render a sound opinion.Report

              • Avatar Burt Likko in reply to Pierre Corneille
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                The wikipedia write-up isn’t bad, but there’s no substitute for reading the real opinion in Gitlow v. New York from 1925. Conveniently, Gitlow, the first proper incorporation case, is about freedom of speech. But if you want to go back even further to see how incorporation works, you can also read this case, CB&Q RR Co. v. Chicago from 1897, which for all intents and purposes “incorporates” the Takings Clause.Report

              • Avatar James Hanley in reply to Pierre Corneille
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                says:

                Pierre,

                You’re correct that incorporation has been piecemeal (what the textbooks call “selective” incorporation”).  But, working off memory here, each of the clauses of the First Amendment has been incorporated through one case or another over the last 80 years or so.  And specifically the free speech clause has.  I’ll take Burt’s word that it was in Gitlow, and since then it’s been applied in numerous other cases (among the most famous of fairly recent ones being, for example, Texas v. Johnson, the flag burning case).

                There are only a few clauses in the Bill of Rights that haven’t been incorporated yet.  I’d have to dig into one of my law texts to verify, but they include the Third Amendment (I think for lack of a case ever bringing that to the Supremes, although there was a recent New York (I think) federal district case that relied on it), and parts of….um, Amendment 7, I think (jury trials in civil cases, perhaps not the most pressing issue in the Bill of Rights anyway).Report

              • Avatar Pierre Corneille in reply to James Hanley
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                says:

                Thank you (and Burt) for your replies.

                I should say I have not read the links Burt gave me, although I may have encountered those cases a while back when I tried (probably with none too impressive results) to teach myself constitutional law (I had taken an undergraduate course in the subject, and after I graduated bought part two of the con-law reader, which dealt with incorporation….but that was in another state, and the books are all outdated).

                I was thinking in part about selective incorporation when I suggested it was piecemeal, but I also was asking another question as well.  Perhaps I am approaching this issue too pedantically, but here’s another way of phrasing my initial question:  Granted that, say, the free speech clause was incorporated against the states by Gitlow:  is that incorporation a blank statement that henceforward, all free-speech cases decided in respect to the federal government automatically apply in exactly the same way to the states, or is there wiggle room (to use a technical term) that the states have, either in theory or in practice?  (The “in practice” is probably not too much of a concession because in practice, I imagine states try to push the envelope all the time.)  Perhaps the answer, or the seeds of an answer, is found in the Gitlow case Burt referred me to, which, again, I still need to read.

                Another question I had was about the Montana judges’ decision:  it seems to me–just from what was cited in the post because I haven’t read the decision–that they were trying to draw a distinction between the Montana law in question and the federal law in Citizens United, and that this distinction was more substantive than that one was a state law and the other a federal law.  I suppose if I really want to know the answer to that one, I have only to read the decision itself and a few other sources on the law in question.  Still, I was curious if anyone here has more ready knowledge of the subject.Report

              • Avatar James Hanley in reply to Pierre Corneille
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                There’s not really much wiggle room, unless the case in question has substantially different facts.  But any case that is really just another standard variation on free speech, then the wiggle room is pretty much non-existent. Since speech is considered a fundamental right, the Court will apply the strict scrutiny standard, requiring that the state show a compelling government interest and that they’ve written the law as narrowly as possible to achieve that interest without unduly burdening the right.  As traditionally interpreted by the Court, it’s pretty close to an impossible standard to achieve.

                I haven’t looked closely enough at the Montana case to answer your other question.  I’m curious, too, so I hope someone else takes the time.  (I really need to be finishing my syllabi for next Monday, but this is ever so much more enjoyable!)Report

              • Avatar Pierre Corneille in reply to James Hanley
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                says:

                (Yeah, I need to really be working on my dissertation.  But sometimes it’s fun for me to pontificate on subjects I have only a passing knowledge in!)Report

    • Avatar Kim in reply to Stillwater
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      says:

      “I’m trying to be the GOOD judge” — seems like he’s pulling a Kucinich prima donna, and saying that what the other dudes are doing is revising the higher court’s ruling, which he disagrees with on the principle that it is teh Higher Court, even if the higher court has done something egregious.

      The other judges appear to say “Matter of Conscience” overrides the general principle that higher court judgements shall guide lower courts. (akin to the “this law is stupid” method of finding someone not guilty).

      not a lawyer, have forgotten all the lawyer terms.Report

  2. Avatar Sam
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    says:

    Citizens United is a noxious decision if you’re capable of recognizing that a corporation isn’t the same thing as a person. Good for Montana. What’s the upshot though? What happens as a result of this? It presumably gets kicked up the line to judges friendlier to the rich and powerful elites who benefit wildly from the Citizens United decision. And then it gets overturned.Report

    • Avatar BSK in reply to Sam
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      says:

      Sam-

      Should a corporation have it’s ability to spend it’s money curtailed in other ways?  Or just with regards to campaigning?  And, if just the latter, how do we define “campaigning”?Report

      • Avatar Sam in reply to BSK
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        says:

        I don’t have a problem with specific restrictions upon corporate spending, be it eliminating it from politics whenever/wherever possible or preventing false/misleading advertising. I don’t have sympathy for the notion that a non-human entity enjoys the same legal rights as a human entity does.Report

        • Avatar Tod Kelly in reply to Sam
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          says:

          Would any other group of people – say, the AARP, PETA, Sierra Club, or even the DNC – fall under that same banner?  If not, why?Report

          • Avatar Jesse Ewiak in reply to Tod Kelly
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            says:

            I don’t know about Sam, but yes. I think there should be federal financing of elections and that’s it. No outside spending, no outside advertising, or anything else.Report

            • Avatar Will Truman in reply to Jesse Ewiak
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              says:

              Would it be an infraction to put a bumper sticker on my car? A sign in my yard? Painting the side of my barn? Endorsing someone on my blog?Report

              • Avatar Jesse Ewiak in reply to Will Truman
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                says:

                Well, you wouldn’t be infracting, but if the campaign paid you to paint that sign or gave you a bumper sticker or sign and paid for it beyond the x number of dollars allocated, the campaign would be dinged.

                As for a blog, no, that’s ya’ know, an actual use of the free speech/press. Not the twisted use by special interest groups or political campaigns.

                Large parts of the free world have limits on political campaigns without any seeming damage to free speech. In fact, many of them have more of a variety of opinion in their political culture than the US.Report

              • Avatar Dan Miller in reply to Jesse Ewiak
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                says:

                “As for a blog, no, that’s ya’ know, an actual use of the free speech/press. Not the twisted use by special interest groups or political campaigns.”

                Question: how would you categorize this?Report

              • Avatar Jesse Ewiak in reply to Dan Miller
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                says:

                It’s firmly planted as coming from Exxon. So everybody can see it’s PR. I’m sure even Chinese companies have PR. 🙂

                But, I’ll make you a deal. In the spirit of compromise. Corporations and other groups can continue to make donations and put up ads. But, they have to disclose who they are in every ad. So, instead of ‘Americans Against Horrible Things’, it has to say ‘Paid for by Exxon, Chevron, Shell, and BP.’Report

              • Avatar Dan Miller in reply to Jesse Ewiak
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                says:

                IMHO, that would be much less unconstitutional.  Thank you!Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                I disagree it’d be unconstitutional, but all right. 🙂Report

              • Avatar Will Truman in reply to Jesse Ewiak
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                says:

                What if the ad is actually purchased by a group called AAHT? One that has a lot of people, organizations, groups, and corporations contributing to it? What if, instead of four companies, it’s four hundred? Disincentivizing this by making them run 400 names strikes me as kind of problematic, since it gives advantage to singular, large corporations over the collective action of many, and I’m not sure that advantage is warranted.

                 Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                I’ll limit to five biggest funders or up to fifty percent of the funding, whichever is greater of any group.Report

              • Avatar DensityDuck in reply to Jesse Ewiak
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                says:

                Will, I’m assuming that you’ve seen the various ads for pharmaceuticals that go like:  “Name Of Product!” (three minutes of disclaimers about how taking it will make you turn into the Elephant Man and then kill yourself)  “Name Of Product!  If you can’t afford your medication, Astra-Zenica may be able to help.”

                What I’m saying is, big long chunks of Federally-mandated language aren’t a new thing.Report

              • Avatar Will Truman in reply to Jesse Ewiak
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                says:

                Wouldn’t my sign qualify as “outside spending”, though? Is there a substantive difference between painting my barn, getting a billboard, or putting an ad on television?

                What if my blog sponsored by the Koch brothers? And my blog’s mission is to assure that a particular candidate is elected president?Report

              • Avatar Jesse Ewiak in reply to Will Truman
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                says:

                Again, this isn’t about individual people making individual decisions and showing their support of a candidate. Hell, even if Donald Trump or the Koch Brothers want to publicly say they support candidate x or throw a sign outside their house saying they support candidate x or even send in an editorial to the WSJ they support candidate x, awesome. You just can’t buy TV ads, radio ads, or buy an ads in a newspaper. Just as in my perfect world, political parties or special interests couldn’t either.

                As for your blog, go back to my post to Dan Miller. There’d have to be a public disclosure of your connections. So, everybody knew it was basically PR. But again, you wouldn’t be able to pay for a TV ad or a radio ad selling the same things. Of course, remember, I also believe that cable news channels shouldn’t be allowed to call themselves news channels either. 🙂Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                But how do you draw the line between political speech and “regular” speech?Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                Touche.

                Though, I don’t let my students (they’re 4 and 5) use markers for a variety of reasons (all related to development, not some lame notion as “they don’t know how”).  And seeing as how politicians, collectively, have about the mental, emotional, and social maturation of a 4- and 5-year-old, we might want to go with something better suited.  Like a twisty crayon.Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                Jesse-

                Why would you limit that restriction to cable news channels?  Why let any channel call itself a news channel?Report

              • Avatar Will Truman in reply to Jesse Ewiak
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                Should the Washington Times and New York Times be able to call themselves newspapers?Report

              • Avatar Will Truman in reply to Jesse Ewiak
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                says:

                Jesse,  I am not sure I agree, but thanks for taking the time to answer my questions to give me a better idea of where you are coming from.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                BSK –

                On your first question, look at the rules that govern other countries that do basically the same thing and copy them. 🙂 I realize that’s a copout, but again, other Western nations pull it off. I think we can.

                To your second, basically the only things I’d allow as news is stuff like the national evening news and little else is ‘news’, even if I disagree with some of what they put on the air. The entirety of MSNBC, CNN, Fox, CNBC, and such is so full of commentary and analysis it simply isn’t news.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                Sure, I’d even say total right-wing rags like the Wall Street Journal and New York Post deserve to be called newspapers as long as their editorial page is plainly shown as they are now.Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                Jesse-

                I’m sure it CAN be done.  But SHOULD it be done?

                Should the government decide what is and isn’t news?  Would they be empowered to crack down on someone printing a newsletter out of their basement?Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                I’m not saying anybody shouldn’t be able to not say or do anything. Just saying the government should be able to regulate what you’re selling. You can print whatever you want, as long as you put in a disclaimer that it’s opinion. Just like Ragu can’t say it’s tomato sauce if they throw only cucumbers in the can, a ‘news’ station shouldn’t be able to call themselves a ‘news’ station if their entire broadcasting day is full of opinion.Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                But we can objectively determine the difference between a tomato and a cucumber.  I don’t know that we can with editorials and news.  And I’m on the record as saying false advertising claims ought to be handled through the civil system.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                …and I disagree with you on false claims. If the government can’t stop businesses from lying to consumer, what’s the point of it doing much of anything?

                As for news versus editorial, I think it’s fairly easy. Expressing an opinion in your writing? Editorial. The facts, even if they include people’s opinion in that story? News. It’s really not that difficult.

                 Report

              • Avatar Patrick Cahalan in reply to Jesse Ewiak
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                Expressing an opinion in your writing? Editorial. The facts, even if they include people’s opinion in that story? News. It’s really not that difficult.

                “Thanks, Victoria!  I’m standing on the steps of the 9th Circuit Court of Appeals, wherein the judges are debating right now the merits of a legal case that some experts say can possibly overturn Roe vs. Wade!”

                Facts?  Or opinions?Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                But what is the mechanism for stopping them from lying?  Arrest?  Fines?

                A false claim ought be remediated because it results in a violation of contract.  When I buy “Ragu Tomato Sauce” for $2.99, I am saying, “I will give you $2.99 in exchange for a jar of sauce made from tomatoes.”  If that sauce isn’t made from tomatoes and there is nothing on the jar to stipulate that it isn’t, Ragu has violated their agreement with me and I am justified in seeking remediation if I so desire it.  Making false claims criminal is to criminalize speech, something that is pretty explicitly forbidden by the constitution (despite the fact that it happens).  Should slander and libel be criminal, as well?

                As for news vs editorials, every editorial contains facts.  And you are essentially advocating for a government mandated definition of a subjective term.  Would that ban go for any word derived from news?  Could I call it a newsie-ma-goozie?  Could they call it “Fox Information-Only Channel”?Report

              • Avatar Stillwater in reply to Jesse Ewiak
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                To lamely  further Jesse’s point (cuz I don’t really have an argument here), if you look at two things about this issue – 1) how much money is spent on elections, and 2) how money spent on elections translates into policy – then maybe coming at this issue from his direction makes some sense. Clearly there is a balance between the right to speech and the undermining democracy based on the right to speech. The hard part is to clearly identity the specific problems too much money creates. And maybe that requires getting really clear on what constitutes ‘too much money’.

                 Report

              • Avatar Pierre Corneille in reply to Jesse Ewiak
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                says:

                Making false claims criminal is to criminalize speech, something that is pretty explicitly forbidden by the constitution (despite the fact that it happens).  Should slander and libel be criminal, as well?

                I’m not so sure that criminalizing false claims is indisputably unconstitutional.  Not that I think slander and libel should be criminal.  But maybe fraud in at least some cases should be.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak
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                says:

                Patrick : That looks like news to me. Other than the fact it’s coming from a local news channel. We both know they’d never cover something as heady as a Supreme Court case. 🙂

                BSK: Yes, every editorial contains facts, but not every news story contains an opinion. As for your second part, I think even the Congress can figure out all the replacement words somebody might throw in for ‘News’ an include them under the verboten list. But, if Fox News wanted to call itself the ‘Fox Fair & Balanced Opinion Channel’, I’d have no problems with that.Report

              • Avatar Patrick Cahalan in reply to Jesse Ewiak
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                says:

                What if the “some experts” are two lawyers who are paid by the news reporter’s boss… and an actual, bona fide survey of real legal experts would come back with, “This case has no practical impact on Roe, no.”

                Still news?Report

            • Avatar Dan Miller in reply to Jesse Ewiak
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              says:

              Ew, dude, no.  I think I just saw the First Amendment whimpering in a corner.Report

              • Avatar Jesse Ewiak in reply to Dan Miller
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                says:

                Money isn’t speech. A representative of Exxon or the ACLU can go talk on a street corner, send in an editorial, and such. They just can’t buy an election.Report

              • Avatar Dan Miller in reply to Jesse Ewiak
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                It costs money to pay people to write editorials, doesn’t it? Or to buy a soap box to stand on, for that matter.  Free speech without the ability to publicize it is no free speech at all.Report

              • Avatar BSK in reply to Jesse Ewiak
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                says:

                I think we’re conflating two things, and I’ll admit that I’m not sure which one in particular the CU case addressed.

                Are we talking about corporations donating money to campaigns?  Such as Exxon sending a check directly to Obama’s fundraising team?  Or are we talking about corporations spending their own money, resources, time, etc. to promote their agendas?

                If we’re talking about the latter, than the money is tied to the speech.  Otherwise, the government could say, “Sure, write any book you want, but spend more than a dollar on the paper you print it on and we’ll shut you down!”  If we’re talking about the former, than it is wrong to conflate money and speech.  I don’t know that that justifies limitations on the use of the money, but it is a different issue.

                And, for the record, I am no fan or supporter of “big corporate”.  I do not think that corporations should be treated exactly the same as individuals under the law because, well, they’re not treated exactly the same as individuals under the law!  You can’t arrest Exxon for murder no matter how many people they kill.  So, yes, I do think you can reasonably put rules in place (such as mandatory reporting on financial statements) that still allow a corporation the opportunity to speak freely.Report

              • Avatar Will Truman in reply to BSK
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                says:

                I think the donations directly to campaign teams are subject to the same caps as private donations. I don’t know that they’re really the issue. The issue, I think, involves donations to the parties themselves and PACs.

                That nitpick aside, you make a good point. Donations to subsidize a candidate’s megaphone are not speech the same way that running your own ads are. There may not be a substantive difference between Exxon (or the SEIU) donating money to Candidate X and Exxon running an ad under Candidate X’s direction, but I think from a constitutional standpoint there probably ought to be.Report

              • Avatar BSK in reply to Will Truman
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                says:

                And that last point is something I remember thinking about even as a kid, whenever campaign finance reform was kicked about.  At first I thought, “Duh.  Just give each candidate $X and that is what they have to spend.”  Then I realized, “Wait a minute… that would mean I couldn’t run a commercial made with my own time and with my own money.  That ain’t right!”

                I’m still not sure I’m okay with donation limits.  Not necessarily from a Constitutional perspective, but certainly from a “It’s my money and I’ll do with it what I like” mentality.  Otherwise, you are telling me I can buy $5M worth of dirty diapers on EBay but can’t give that money to a politician I want to see elected.

                And, where do we end the limits?  Would I be forbidden from selling 100 brand new Ferrari’s to candidate Y for $1 and then stand back as he sells them at face value?  How far do we go in limiting the transacations folks can engage in?Report

              • Avatar Patrick Cahalan in reply to Will Truman
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                This would be less of a problem if there were already venues wherein the American people were informed of their political candidates to a degree greater than the current epsilon of zero.

                I can think of a number of publicly funded ways (or subsidized ways) to alleviate a large part of this burden without making campaigns *all* publicly financed.

                Broadcast television and radio uses a licensing agreement with the FCC.  That could be amended in lots of ways.  “You want a license to air television in the U.S., you are hereby required to allow X hours of political programming in this format N weeks prior to the election, with 1/Mth in prime time, etc.”

                I don’t necessarily like it, as almost any incarnation would be yet another embedding of the two-party system, but it could be done.

                “Right wing talk radio” and “liberally-biased mainstream media” would have to carry programming supporting the other side, which would stick in their collective craw pretty badly.Report

              • Avatar Mike in reply to Will Truman
                Ignored
                says:

                “Donations to subsidize a candidate’s megaphone are not speech the same way that running your own ads are.”

                And “running your own ads” that explicitly say the same thing that a candidate says, or that say “vote for candidate x”, or “vote against anyone who doesn’t support this position” is different from subsidizing the candidate’s megaphone how?Report

              • Avatar Liberty60 in reply to BSK
                Ignored
                says:

                “And, where do we end the limits?  Would I be forbidden from selling 100 brand new Ferrari’s to candidate Y for $1 and then stand back as he sells them at face value?  How far do we go in limiting the transacations folks can engage in?”

                Don’t we already do this with tax law, money laundering, and general property disputes?

                That is, don’t we have a raft of accounting regulations that courts use to determine if true assets and track money for tax purposes?Report

              • Avatar Patrick Cahalan in reply to Liberty60
                Ignored
                says:

                Do you think there are loopholes in tax law that advantage the wealthy?

                Do you think that tax law is hugely labyrinthine and unwieldy?

                Do you have an expectation that this would be different, and if so… why?Report

          • Avatar Sam in reply to Tod Kelly
            Ignored
            says:

            Respectfully, you’re not going to get me to believe that I am the same as Walmart. Not now. Not tomorrow. Not next week.Report

      • Avatar Pierre Corneille in reply to BSK
        Ignored
        says:

        BSK:

        I actually don’t, in principle, mind courts interpreting corporate charters narrowly to prevent the corporation in question from going ultra vires of its assigned powers.  I’m not sure how that would work in practice, however.  And if a corporation was designed primarily for the purpose of campaigning, I would guess that such would be permissible.

        My point is that corporations enjoy their legal status from the state,* and the state ought to be able–if its policymakers are willing to do so–to define the contours of that status.

        *I’m not arguing that everything about what counts as a corporation is necessarily a creation of the state–there may be such thing as a voluntary aggregation that has some of the attributes of a “corporate” body even if it has no legal recognition as such.Report

    • Avatar James Hanley in reply to Sam
      Ignored
      says:

      Citizens United is a noxious decision if you’re capable of recognizing that a corporation isn’t the same thing as a person.

      But less noxious if you’re capable of recognizing that the First Amendment never refers to citizens, but only to limits on Congressional authority.

      We could read the First Amendment as saying, “Congress shall make no law restricting freedom of speech except when it’s funneled through the medium of corporations,” but I’m not yet persuaded that’s an inarguable reading.Report

      • Avatar Jesse Ewiak in reply to James Hanley
        Ignored
        says:

        Again, if you think the spending of money = speech.Report

        • Avatar James Hanley in reply to Jesse Ewiak
          Ignored
          says:

          Jesse,

          Yes, with that qualifier.  For myself I find the arguments that it doesn’t equal it to be disingenuous.  I think if money wasn’t so closely related to the effectiveness of speech, advocates on your side wouldn’t be so up in arms about it.  And I’m a strong enough free speech advocate to think the First Amendment reaches to efforts to limit the effectiveness of speech.Report

        • Avatar kenB in reply to Jesse Ewiak
          Ignored
          says:

          If the government prevents me from buying a printing press or hiring people to distribute my pamphlets, is that also not a 1st Amendment violation in your world?  After all, buying equipment and hiring people isn’t speech.Report

  3. Avatar BSK
    Ignored
    says:

    I am bothered by the implications CU decision.  But as I’ve thought about it more, I’m more bothered by the general methodology of campaign finances laws.

    There is no law against me or my corporation spending millions of dollars to promote Coke or to bash Pepsi so long as what we say is verifiably true.  So why ought there be limits/laws on me or my corporation spending millions or billions of dollars to promote Candidate X or bash Candidate Y, against assuming what we say is verifiably true?  And, if we accept that the government can limit speech and spending in this way, where do we draw the line?  Can they limit an individual or corporation’s ability to promote a policy if that policy is closely tied to a candidate’s platform?  I’m not one for slippery slopes, but I’m also not one for chipping away at the first amendment.

    And, yes, I know there is a lot to be said about equating speech and money, persons and corporations (I do take umbrage with LLC’s being able to enjoy certain “rights” or “privileges” while limiting their liability or accountability, but that is another conversation for another day).  But, at the end of the day, as scary as this decision is… it just might be the right one if we truly favor liberty.Report

    • Avatar Kim in reply to BSK
      Ignored
      says:

      … doubtful. The ruling on “promoting causes” says that if you’ve been promoting them before the election, then you’re probably good.

      So there’s perpetual “Clean Coal” ads. and perpetual “WV Mountains” bumper stickers.Report

      • Avatar BSK in reply to Kim
        Ignored
        says:

        So if I’ve been touting Mitt Romney as a swell dude since early 2011, I’m okay?  Because when, exactly, does an “election” begin?Report

        • Avatar Kim in reply to BSK
          Ignored
          says:

          no, you can’t tout romney, but you could tout “similar to his health plan” stuff. or other policy positions that he supports

          Kinda like how big auto ran a lot of the health care lobbying.Report

          • Avatar BSK in reply to Kim
            Ignored
            says:

            So if I love Michael Vick (I do!) and BSKCorp spends millions of dollars on an awesome website dedicated to his brilliance (it  doesn’t!), we’d have to suddenly stop doing that if he decided to run for office (he shouldn’t!)?Report

    • Avatar Patrick Cahalan in reply to BSK
      Ignored
      says:

      Put in on your financial statements, that’s all I ask at this point.Report

    • Avatar Burt Likko in reply to BSK
      Ignored
      says:

      There is no law against me or my corporation spending millions of dollars to promote Coke or to bash Pepsi so long as what we say is verifiably true.

      Close. The standard is actually so long as what you say is not verifiably untrue.

      If the standard were only things that are verifiably true, then you’d be reduced to slogans like “Coke: It’s made of mostly carbonated water and high fructose corn syrup!” and that doesn’t really give you enough flexibility and freedom to engage in commerce in a meaningful way.

      But you can’t say something that is deceptive or objectively false, so a slogan like “Coke: It cures AIDS!” is likely to draw some censorship. That doesn’t actually bug me all that much, free speech advocate though I am (or, if you prefer, “free speech advocate though I claim to be”). It’s probably worth some introspection to get to the idea of why, normatively, that kind of censorship doesn’t bug me — does that mean that the First Amendment is aimed at enabling the public to discern truth? Seems to me that there is more to freedom of speech than that, particularly with regards to culture, although I would probably concede that truth is an element why free speech is valuable to a society like ours.

      Anyway, under current law, you may freely opine or engage in “puffery,” e.g., “Coke: It tastes way better than Pepsi!” That statement is neither verifiably true nor verifiably untrue, because of its inherent subjectivity. It’s sales talk. Learning to sort through sales talk to identify actual facts within representations is part of the skill set of a consumer and, frankly, something that I think the law ought to assume a person of normal intelligence and education is able to do. It isn’t appropriately the job of the government to tell you whether you like Coke better than Pepsi. So puffery is, and ought to be, permitted and not subject to governmental regulation.Report

      • Avatar Kim in reply to Burt Likko
        Ignored
        says:

        so you get all those ads about SEX. And Temptation, which reduces back to SEX, and all those ads about buying this will get you Girls, which reduces back to SEX.

        But any conscious consumer would be easily able to recognize that eating chocolate really isn’t sex, even if the ad is trying to trigger the same pathway.Report

      • Avatar BSK in reply to Burt Likko
        Ignored
        says:

        Sloppy language.  Thanks for correcting.

        I fall where you do, but believe that such situations are better remedied through the civil system.  It’s not illegal to make a false advertisement, but you expose yourself to a lawsuit.  The crime is not the language you used, but entering into a falsified contract.  I don’t know if this is a better or worse incentive for companies to avoid knowingly putting forth false information, but it seems the better way to get at it.

        Patrick-

        Can you elaborate on the financial statement piece?Report

        • Avatar Patrick Cahalan in reply to BSK
          Ignored
          says:

          I’ve brought this up before when Citizens United came up.

          Corporations have a duty to their shareholders to spend their money in ways that generate profit for the corporation.  Expenditures need to be accounted for on the consolidated financial statements for publicly-held corporations, likewise everybody needs to file a tax return.

          I’m less concerned with corporations participating in the legal process (I think it is bad, but not necessarily a game-breaker) than I am with corporations participating in the legal process without review (which is a game-breaker).  Unlike a private citizen, who has a vested interest in perhaps protecting their privacy in the political process… a corporation is a public entity.  They have no expectation of privacy from their shareholders for normal expenditures.

          If they want to donate money to a campaign or a PAC or anything else, this should be listed as a line item on the consolidated financial statements and detailed in the notes.Report

          • Avatar BSK in reply to Patrick Cahalan
            Ignored
            says:

            No issues with this.  This is where the unique nature of a corporation comes into play.

            What would be interesting is to hear how companies justify such expenses as “revenue generating”.  “Why’d we spend $10 million on Romney?  How will that generate profit?”  “Um, he’s in our pocket.”Report

            • Avatar Patrick Cahalan in reply to BSK
              Ignored
              says:

              Well, it’s not entirely out-of-bounds for a corporation to say that there are policy stances from which they will profit that are good for the general public, anyway.

              Plus, as both Jaybird and Jason have pointed out before, the Red Cross is a 501(c) corporation.  It’s just non-profit.  Many political organizations are corporations.

              Still, “put that on your financial statements” also seems more than justifiable for public corporations that are political organizations, as they rely on donations quite a bit and they have a responsibility to their donors, as well.

              One can even make the case that a non-public corporation ought to report this if they accept direct government payments, contracts, or subsidies.  ConAgra is private but if they get $N millions a year from corn subsidies, they ought to make clear to the taxpayer if they’re spending any of that money on political contributions, as well.Report

          • Avatar Burt Likko in reply to Patrick Cahalan
            Ignored
            says:

            This is particularly true for publicly-traded corporations; the public can freely buy and sell stock in them and therefore the public is entitled to truthful and accurate disclosures of what the corporation does with its money.Report

            • Avatar Kim in reply to Burt Likko
              Ignored
              says:

              … even Dumb Money?Report

              • Avatar Burt Likko in reply to Kim
                Ignored
                says:

                Especially Dumb Money.Report

              • Avatar Kim in reply to Burt Likko
                Ignored
                says:

                so how do you tell your 401k you don’t want to be invested in Exxon? And if you tell them such, do you expect that they’ll actually listen?Report

              • Avatar Patrick Cahalan in reply to Kim
                Ignored
                says:

                This is an asspain, but it can be done.  Admittedly, it’s not a perfect solution for that reason… on the other hand, corporations do seem to respond quite a bit more quickly to things like bad publicity campaigns than they do to people fiddling with small inputs into their stock price.  If Exxon puts on their financial statements that they donated $1M to a PAC that puts on *their* financial statements that they donated $500K to Romney and $N to the re-election campaign coffers of Senator Inhofe and somebody reports that on the front page of the NYT, people bitching and boycotting Exxon is much more likely to change that than, say, Concerned Citizens futzing around with their 401k contribution ratios.Report

              • Avatar Kim in reply to Patrick Cahalan
                Ignored
                says:

                agree with you and appreciate the edification.Report

              • Avatar Jesse Ewiak in reply to Patrick Cahalan
                Ignored
                says:

                But, here’s the thing. Corporate entities already have done the math. I forget the exact number, but the return on investment for political donations to actual tax breaks, subsidies, and so on is something insane like 1,000%.

                In other words, even if there is a boycott effort, they know it’s not going to effect their bottom line.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan
                Ignored
                says:

                Before we start saying that more than sunlight is needed to cure the wound, let’s try shedding some sunlight.

                It’s something that (a) can be done without running into first amendment concerns and (b) doesn’t require much in the way of actual implementation and (c) is really hard to argue *against*.

                Fighting over Citizens United in the courts, or attempting to amend the Constitution, are both long-term, high expense courses of action.  US GAAP could be changed tomorrow.

                Hell, the government doesn’t even need to get involved.Report

              • Avatar Jesse Ewiak in reply to Patrick Cahalan
                Ignored
                says:

                One of the few things I have less faith in when it comes to accountability than certain parts of the government is companies who depend on the continued existence of those massive multi-national’s to survive. 🙂Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan
                Ignored
                says:

                I’m down with pessimism, Jesse.

                I’m not entirely certain that things would be substantively better with better reporting.  On the other hand, I have no reason whatsoever to think that they’d be *worse*, and it’s pretty easily doable.

                So I can see lots of potential (if unlikely) upside, and no real downside except “It didn’t work, so now we need to try something else”.Report

      • Avatar Tod Kelly in reply to Burt Likko
        Ignored
        says:

        Burt – I might add that though you may not say something that is verifiably untrue, it certainly appears from my layperson’s eyes that you can imply something that is untrue.  Sugar-heavy cereals, Coke, and McDonalds are all often featured in ads that imply they are very, very healthy food products.  Individual investment firms certainly imply that you will retire quite comfortably if you hire them.  I have even seen truck and SUV commercials imply that they are very green products indeed.

        Feel free to correct me if I am way off base?Report

      • Avatar DensityDuck in reply to Burt Likko
        Ignored
        says:

        “Coke: It’s made of mostly carbonated water and high fructose corn syrup!”

        haha, sort of like “Slurm! It’s highly addictive!”Report

    • Avatar Comrade Dread in reply to BSK
      Ignored
      says:

      There is no law against me or my corporation spending millions of dollars to promote Coke or to bash Pepsi so long as what we say is verifiably true.  So why ought there be limits/laws on me or my corporation spending millions or billions of dollars to promote Candidate X or bash Candidate Y, against assuming what we say is verifiably true.

      In the former case, you’re simply using your funds to influence private companies. The most harm you may cause is less Pepsi being consumed and some people who worked for Pepsi suddenly needing to find new jobs.

      When you’re giving to a politician, you are buying influence with them. This person, if elected, now has the power and the ability of the state at their disposal, which they can use to disproportionally benefit you, even at the expense of the rest of their constituents, and with sufficient resources, you can drown out the any would-be reformers with hours of advertising telling people that up is down, war is peace, and black is white.

      Worst case scenario is that your current stooge loses his next election, but then you can hedge your bets by spreading the money around to both parties and politicians in multiple states.Report

      • Avatar DensityDuck in reply to Comrade Dread
        Ignored
        says:

        “When you’re giving to a politician, you are buying influence with them. This person, if elected, now has the power and the ability of the state at their disposal…”

        Well, but isn’t the argument against Citizens United that corporations have undue power and influence? If that’s true for politicians as well, then isn’t an anti-CU argument actually a pro-Libertarian argument?Report

        • Avatar Scott Fields in reply to DensityDuck
          Ignored
          says:

          I would have thought the Libertarian argument would have to be anti-Citizens United, frankly.

          I’m at a loss. How could one possibly hope to achieve less crony capitalism and diminish the ability of monied interests to pervert free markets, if unlimited and anonymous expenditures in support or opposition to a political candidate, as allowed by the Citizens United decision and the proliferation of super-PACs, is the law of the land?Report

          • Avatar Jaybird in reply to Scott Fields
            Ignored
            says:

            Crony capitalism is bad, sure.

            The best tools to fight against do not include censoring people who get together to make movies that criticize the government.

            Given that the Government argued, among other things, that the law allowed it to ban books, why would you think that the Libertarians would take the side of censoring PPV movies?Report

            • Avatar b-psycho in reply to Jaybird
              Ignored
              says:

              Basically.  If the combination of privilege via corporate status and unlimited campaign activity is an issue, the problem is the privilege, not the campaign activity.Report

              • Avatar Jaybird in reply to b-psycho
                Ignored
                says:

                I mean: Imagine if the Federal Government censored Fahrenheit 9/11 because they said “it’s effectively an attack ad against politicians”. Like, you couldn’t buy a ticket to see it.

                “It’s too close to an election”, they’d say.

                I can understand why some folks would be cool with this. I can’t understand why people would think that Libertarians should be cool with this.Report

            • Avatar 62across in reply to Jaybird
              Ignored
              says:

              Jaybird –

              I asked the question more from the standpoint of the widely expected practical effects of the Citizens United ruling rather than the specifics of the case. That may be a distinction that you don’t make.

              If the First Amendment prohibits government from placing any limits on independent spending for political purposes by corporations and unions, what can be done about bought politicians?

              What are these “best tools”?Report

              • Avatar Jaybird in reply to 62across
                Ignored
                says:

                I asked the question more from the standpoint of the widely expected practical effects of the Citizens United ruling rather than the specifics of the case.

                Fair enough.

                Do you mind if I ask you to look at it as if the case was decided otherwise? What would the widely expected practical effects be?

                (Though, before you ruminate on that, I’d ask for you to look at the specifics again and extrapolate from there what practical effects would be widely expected.)Report

          • Avatar Liberty60 in reply to Scott Fields
            Ignored
            says:

            Scott, I believe the libertarians response to private influence over government is to shrink government, not the interests that influence them.

            Nope, I don’t get the logic either.Report

            • Avatar James Hanley in reply to Liberty60
              Ignored
              says:

              Nope, I don’t get the logic either.

              I’m pretty sure it’s been explained here plenty of times.  Are you saying you understand the argument from the libertarian perspective or that you think there’s a flaw in it?Report

              • Avatar b-psycho in reply to James Hanley
                Ignored
                says:

                He probably thinks “without government, who will check big business?”  Despite government not doing so.  In fact, despite government being openly buddy-buddy with big business.

                 Report

              • Avatar Jaybird in reply to b-psycho
                Ignored
                says:

                If one has the attitude of “I (or someone very similar to me) will be in charge of deciding what everyone else will be able to see, hear, or read… so I (or someone very similar to me) will have all of the information. It’s *YOU* people who should be prevented from hearing all of it. Don’t worry, though, I (or someone very similar to me) will have your best interest at heart and will make sure that only the best information makes it through the filters down to you”, then I can understand hating the idea of Citizens United.

                I can’t understand why someone who does not have this attitude would like it.Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                First, my question should read “don’t understand…from the libertarian perspective.

                Second, it’s a sincere question.  Either Liberty has not yet understood what we libertarians are arguing on this issue, or he has understood it and rejected it.  His comment is cryptic enough to not reveal which, but inquiring minds want to know.Report

            • Avatar 62across in reply to Liberty60
              Ignored
              says:

              I see the logic. I don’t see the execution.

              How do you even elect the lawmakers needed to create policy that would shrink government, if they have to win office against opponents backed by monied interests (unions or corporations, I don’t think it matters) who can dump unlimited and anonymous funding into negative attack ads?Report

              • Avatar 62across in reply to Jaybird
                Ignored
                says:

                I don’t understand.Report

              • Avatar Jaybird in reply to 62across
                Ignored
                says:

                I’m digging your thought process on this. I’m asking you to keep going with it.Report

              • Avatar Scott Fields in reply to Jaybird
                Ignored
                says:

                I have nowhere further to go, sadly. I come seeking answers.

                I guess I favor full public funding of elections, as I see no other way to weaken the dependency of politicians on money men of all stripes. I’m open to suggestions on solutions, but I think the crisis for good governance that stems from this dependency is indisputable.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                Unfortunately you’re right, Scott.  The mechanism is the problem.  I think the traditional libertarian answer has been, “The Libertarian Party is the fastest growing political party in America!” with the implication that soon there would be a popular groundswell, a political revolution, that would sweep away all the old as the majority demanded and elected candidates who would reject corporate influence.  It hasn’t exactly been one of the stronger elements of libertarian thought.

                I think it would take a constitutional amendment, and I think the only way that could come about is for the state governments to call for a constitutional convention–for whatever reason, not necessarily concern about this issue–and for a majority there to hold this as an important issue.Report

  4. Avatar Scott Fields
    Ignored
    says:

    The dissenting Judge Nelson’s best quote was this:

    “While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court’s decision.  And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”

    Report

  5. Avatar Brandon Berg
    Ignored
    says:

    I think everyone should have the right to say absolutely anything I want them to say.Report

  6. Avatar greginak
    Ignored
    says:

    I think this is one of those problems without a clear solution. Corps aren’t people and i don’t like CU but i can’t see how you fix it. (No i don’t consider enacting the entire libertarian set of ideas a viable or good solution.)

    I do like the idea of giving candiates free TV time on FCC liscensed stations. Hell CSPAN would be a great place for that. I would think it would also offer an opertntiy to get more voices out there, perhaps by basing the free CSPAN time on somethign like peopel registered with a party or votes in the previous election. Yeah people might not watch CSPAN or think it the machine their dad wears to stop snoring but..you know..horses and water and all that.

    The way PAC and SuperPACs are set up now there is no transparency in funding which is a problem.Report

    • Avatar James Hanley in reply to greginak
      Ignored
      says:

      The way PAC and SuperPACs are set up now there is no transparency in funding which is a problem.

      I agree, and I am very inclined toward the idea of requiring total disclosure of names of contributors.

      And then I always remember that the FBI tried to use the tactic of disclosure of names to disrupt the civil rights movement.

      And then I get really depressed.Report

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