Supreme Court: Citizen’s United vs FEC (updated)

(10 am. – promoted by ek hornbeck)

The upcoming case, Citizen’s United vs FEC, will be Justice Sotomayor’s debut case on the Supreme Court.  The case, however, has taken a strange and dangerous turn:

Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.

Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.

Why would the Supreme Court take a case that has a defined decision (whether or not the making of a political movie puts the makers under the McCain-Feingold Campaign Finance Law restrictions) and suddenly wish to hear arguments about another issue?

That answer should be obvious: they want to give corporations, and their money, more say in our political process.  

The case is an easy one; do they fall under the guidelines established or not.  The Supreme Court wishes to extend its arguments to whether campaign finance rules should be eviscerated or not.  This is, by its very definition, “legislating from the bench”.  

Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.

This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since 1907 in one case and 1947 in the other, banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.

It is clear is that Chief Justice John Roberts wants to do just that or the Court would only have decided on the issue at hand.  The question now is just how much will the Sotomayor nomination help or hurt us?

On the Rachel Maddow Show, Rachel and Slate’s Dahlia Lithwick discussed Justice Sotomayor.  

Rachel Maddow had Slate columnist Dahlia Lithwick on her show tonight to discuss the degree to which conservatives are trying to paint Obama’s Supreme Court nominee Sonia Sotomayor as an out-of-the-mainstream liberal whom Obama selected solely for her inspiring life story. Lithwick explaining that Sotomayor is a moderate judge who is eminently qualified to be nominated and that Obama has simply found a nominee who is well-qualified and has an uplifting life story.

In fact, in a separate show, Rachel herself called Justice Sotomayor a moderate that pulled the Court a little further to the right.

“The first time a liberal justice stepped down under Obama’s watch, the president replaced David Souter with Sonya Sotomayor, a moderate whose appointment probably tilted the court to the right,” said Maddow. “… Will he pick a moderate, moving the court to the right, yet again?”

I was one of the few that was against the Sotomayor nomination for that very reason.

First off, let’s discuss the Supreme Court nomination of Judge Sotomayor.  I keep hearing about how this pick by President Obama was genius.  Genius, I tell you!  The GOP can’t attack her without digging a deeper hole.  Except, the GOP isn’t attacking her.  The talking heads, like Rush Limbaugh, are attacking her.  Newt Gingrich, who is a disgraced politician hoping for limelight, is attacking her.  The GOP knows she will sail through the confirmation.  

This is a Judge who was first nominated by George H.W. Bush.  She has sided with conservative opinions the majority of the time in her decisions.  She is a moderate Judge that leans to the right.  The consideration for her nomination by Bush 41 was the same as President Obama’s; the Left would never be able to block her nomination without digging a hole with the hispanic and women voting blocks.  

Now, it is true that once a Judge reaches the pinnacle of the Supreme Court, they are then free to rule as they see fit.  Judge Souter proves this.  He, too, was a moderate conservative Judge, nominated by a Republican to the Supreme Court, who once he got there issued opinions that were more liberal.  But, this misses the point; why even appoint a moderate who leans to the right in the first place?  

Correct me if I am wrong, but, didn’t President Obama win the Presidency under the Democratic Party?  Didn’t the Democratic Party win even more seats in both the Senate and House?  Did not we just get two young stalwart republican Judge’s appointed to the bench?

If Judge Sotomayor turns out not to be another Justice Souter, President Obama has just cemented the conservative tenor of the Supreme Court for decades to come.

With the expected retirement of Justice Steven’s, President Obama could have two moderates that swing to the right, and that, would be the end of a balanced court for decades.  

Watch this case very closely and Justice Sotomayor even closer.

UPDATE:  From Politico (I’m bypassing most of Mr. Smith’s laborious article to the money quote):

And so, perhaps not surprisingly, the Court has decided to take this opportunity to review its jurisprudence in the area, and in particular the McConnell and Austin decisions. If Austin is overruled, the federal prohibition on corporate expenditures in political races, and similar laws in 22 states, would be declared unconstitutional. Merely overruling McConnell would have less impact but still be far reaching.

I highlight that sentence because, later in his article, Mr. Smith states:

The government, and Austin’s other supporters, also argue that corporations will dominate the political debate, spending, in the words of Democracy 21 President Fred Wertheimer, “hundreds of millions” to defeat candidates. There are three answers to this argument. The first is that that’s OK – corporate shareholders, or in the case of non-profits, corporate members, should have a right to express themselves on political issues. Of course, Wertheimer and others consider it bad, and it may be, but that is not self-evidently true. Similarly, some think corporate speech is obviously protected by the Constitution, and others think not. Whatever one thinks of those underlying questions, however, Wertheimer’s claims are almost certainly overblown.

Overblown?  Hardly!  We get two candidates in the general (usually) after the Party Primaries.  Both candidates, if Austin is overturned, would be forced to try to be more pro-business than the other, lest, corporations simply pour millions into one candidate’s campaign.  It is not “overblown” to believe that if corporations are allowed to pour money into elections unchecked that our elections will forever be decided by corporate fiat.

Mr. Austin thinks differently:

It is true that if Austin and McConnell are overruled, it will be a big deal, but as is often the case, we can overstate the impact. Will it mean a “free for all” or a “wild west” approach to campaigns (assuming that would be bad)? No. Corporations and unions will still be prohibited from contributing to candidates, individual limits on contributions will remain in place, disclosure laws will still be in effect, and political committees will still have to register with the government before speaking out. In fact, political campaign speech will still be more heavily regulated than it was at any time in our nation’s history between the repeal of the Alien and Sedition Acts in 1801 and the passage of the Federal Election Campaign Act of 1971. Even the most ardent regulator can probably live with that.

I do not see how Mr. Austin reconciles the two; that federal prohibition on corporate expenditures would be deemed unconstitutional, and, that corporations would still have prohibitions on their expenditures.

Re-read the paragraphs and tell me if you read the same thing I have; that once prohibition on corporate spending is deemed unconstitutional, any and all laws that effect same are null and void.