Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktTom Goldstein at SCOTUSblog posted over the weekend about the upcoming challenge to the Montana SC decision upholding a ban on corporate expenditures in state elections. While the case itself is likely not going to be all that exciting (the Citizens United majority will assuredly reverse the MT SC), the inside baseball look that Goldstein provides on Ginsburg/Breyer’s grant staying the MT SC decision is very interesting.
An excerpt:
What, then, does Justice Ginsburg’s statement tell us? First, these two Justices at this stage recognize a square conflict between the Montana Supreme Court’s decision and Citizens United. They “vote[d] to grant the stay” because the state supreme court was “bound to follow this Court’s decisions” – ipso facto, the state court’s ruling did not follow Citizens United. If these two strong opponents of Citizens United see that conflict, then presumably the Citizens United majority does as well. That means that the state’s argument that its law is distinguishable because it “imposes far different obligations” than did the statute in Citizens United has no traction for a potential majority as a ground for distinction, though perhaps it could be a basis on which Citizens United could be “modified.”
Second, look to what Justice Ginsburg does not say. The statement indicates no sympathy for the claim that this case does not present an appropriate opportunity to consider the question presented. So there is no interest in the state’s contention that, with respect to these petitioners, “the Act operates as no more than a disclosure law of the sort this Court has long upheld.” As a result, the state has to work from the understanding that certiorari is certain to be granted, and the case is going to present the question whether Citizens United should be overruled or modified.
Third, and most important, the statement seemingly identifies the argument that Justices Ginsburg and Breyer think has the best chance: “whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway” or instead should be “withdrawn or modified.” That argument should be based on the practical evidence of “Montana’s experience, and experience elsewhere.”
Filed under: Uncategorized |
All Things in Moderation 
Being generally unfamiliar with this case, I ask the basic question: this is a Montana law that the Montana SC upheld, correct?
I’m curious if there is any point at which the Supremes might contend that the SC limitations on corporate spending is the business of the state. Presumably, there’s a federal interest because it involves election spending, but there is presumably some leeway allowed to the states in regards to local election laws and standards.
Is there any evidence Montana’s bans on corporate spending have been effective?
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KW:
this is a Montana law that the Montana SC upheld, correct?
Correct. The statute is the 100 year old “Corrupt Practices Act” originally enacted in response to the actions of the copper mining industry.
I think there is no chance that SCOTUS will not reverse, first because of the precedent of Citizens United and second because statute is a total ban on corporate spending. Statutory limitation may be OK, but those limitations had better have a really good foundation.
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It continues to boggle my mind that so many people think prohibitions on political campaign speech can even remotely be consistent with the First Amendment.
Just boggles my mind.
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It continues to boggle my mind that so many people think prohibitions on political campaign speech can even remotely be consistent with the First Amendment.
Couldn’t it be regulation of commerce? We’re not saying they can’t say anything, we’re just saying they can’t spend money, right? Isn’t that argument at least theoretically possible? And isn’t there some precedent for states at least nibbling around the edges of what is federally constitutional in their own laws?
BTW, I may have said before, I think Citizens United is what McCain’s Campaign Finance Reform gave us, and it was largely inevitable. Once you start define Campaign Finance Reform as a way to limit the voice of special interests (i.e., activist groups),clear-cut a swatch before elections where almost everybody has to shut up (except for loopholes) and allow incumbents to ignore the new Campaign Finance laws, if they are running against a challenger with a lot of money . . . you get Citizens United.
Money will find it’s way to power. As long as there is demand, there will be supply.
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Then, there’s a simple solution:
http://www.fun-with-words.com/boggle.html
BB
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qb:
It continues to boggle my mind that so many people think prohibitions on political campaign speech can even remotely be consistent with the First Amendment.
I wonder how many actually think that, and how many simply don’t really care that it isn’t. Mich’s belief that the philosophy of government upon which the nation was founded is outdated and insufficient for modern “requirements” is surely held by many and also likely to have implications regarding the meaning and application of individual rights previously held to be sacrosanct.
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It continues to boggle my mind that so many people think prohibitions on political campaign speech can even remotely be consistent with the First Amendment.
I don’t see how complete prohibitions can be consistent, but I can understand the argument that limitations may be necessary and are consistent with the First Amendment. I think another (more) interesting debate, and one QB previously touched on, is the anonymous nature of the donations, petition signatures etc. They mentioned on the news today that votes in the Michigan primary are not secret.
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They mentioned on the news today that votes in the Michigan primary are not secret.
The sign-in sheet is correlated to the ballot cast?
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Mark,
I heard this on the news this morning and the discussion I heard is a bit inaccurate. Apparently, your party ballot seletion will be disclosed, not your actual vote. I don’t know if that makes much of a difference, but I suppose it is a bit better than your vote being public.
This is from the FAQ published by Michigan on primary votes:
Will my ballot selection be made public?
Yes. By law a public list must be made available that includes the presidential primary ballot
type chosen by each voter in the Feb. 28, 2012 presidential primary. This list must be made
available by May 9, 2012. County, city and township clerks must retain the forms indicating each
voter’s presidential primary ballot selection for 22 months. This ballot selection information is
subject to disclosure under the Freedom of Information Act. The public list of voters’
presidential primary ballot selections and the documents containing this information held by
local clerks must be destroyed after the 22-month retention period expires.
They don’t say which law requires such a disclosure. I wonder if the ballot tells you that your ballot selection will be disclosed.
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Thanx, Ashot.
I have always wondered if your pseudonym should be pronounced “As hot” or “A shot”.
Day off.
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“As hot” or “A shot”.
Hah….I’ll let each individual poster make that decision for him/herself.
FWIW I always read “A shot”.
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Kevin:
Couldn’t it be regulation of commerce? We’re not saying they can’t say anything, we’re just saying they can’t spend money, right? Isn’t that argument at least theoretically possible?
Maybe theoretically, but it is an argument that reeks of after-the-fact justification, as it is plainly not an attempt to regulate commerce. It is an attempt to regulate political speech.
And imagine the joke that the Bill of Rights would become if such arguments were accepted as valid. We’re not saying you can’t worship at whatever church you please, we’re just saying you can’t spend money on it. Regulating commerce, don’t you know. And we’re not saying you can’t own a gun. We’re just saying you can’t buy one. Regulating commerce. We’re not saying you can’t print what you want In your newspaper. We’re just saying you can’t spend money on newsprint, ink, or writers. That regulating commerce thing.
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Mich’s belief that the philosophy of government upon which the nation was founded is outdated and insufficient for modern “requirements” is surely held by many
And has been. Thomas Jefferson thought the constitution should be torn up once a generation, and rewritten for the needs of the times. Although one wonders if he saw the European Constitution if he would feel the same way.
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KW:
Couldn’t it be regulation of commerce? We’re not saying they can’t say anything, we’re just saying they can’t spend money, right? Isn’t that argument at least theoretically possible?
Theoretically, I guess. But a theory that won’t have any support at SCOTUS. Buckley v. Valeo pretty clearly states that spending money on an election is protected speech.
What I’d like to ask our lawyer friends here is whether they think that campaign contribution limits are an impermissible infringement on 1st A rights.
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What I’d like to ask our lawyer friends here is whether they think that campaign contribution limits are an impermissible infringement on 1st A rights.
Sorry to have been kind of hit-and-run on this, but my position on this is no, it isn’t. To me, the difference between giving money to someone and spending money to say what you want is clear.
I know there are arguments about implicit quid pro quo, coordination, etc., but these don’t destroy the distinction.
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1] One of the majority Justices would have to think that the recent flood of cash demonstrates a time-place-manner problem. QB has pointed out to me that, at least until now, there has been no limitation on getting one’s message out caused by unlimited indirect funding. I do not think we have seen that happen yet. It is not yet an issue of not enough soapboxes for everyone b/c someone bought them all.
2] The political problem with the flood of cash is obviously that all elected politicians of any stripe at every level can effectively be bought, not that a party will gain an advantage. That was what the the campaign finance laws through a century were about. My guess is that full disclosure and transparency is the best we will ever be able to do about this, because that cat was out of the bag, anyway. Still, I remember when constituent service was taken more seriously by everyone from the most liberal to the most conservative congressperson or senator. So the process has become more cynical in the last thirty years [not simply in the last two years].
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Mike, I think that if indirect funding is essentially unlimited, the individual can buy as much media time for her view as she wants.
I think that funding rules for campaigns can be permissible because the individual donor has an alternate mode of unlimited expenditure. A campaign needs a minimum amount of money to be taken seriously, and a limitation below that minimum would be questionable, but a generous maximum on campaign spending and on the qualifications of donors and the sums of their donations should be no problem unless there is also limitation on soft money.
I think there is room to ban foreign money, btw. That may prove the lynchpin for the disclosure requirements becoming more stringent.
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ashot:
I don’t know if that makes much of a difference, but I suppose it is a bit better than your vote being public.
This doesn’t strike me as that big a deal. If voters are allowed to choose which party’s primary to vote in, wouldn’t the state need to keep track of who voted in which in order to reconcile the number of ballots used with the number of voters signed in?
Also, why are there two primary dates, Feb 28 and then August 7?
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If voters are allowed to choose which party’s primary to vote in, wouldn’t the state need to keep track of who voted in which in order to reconcile the number of ballots used with the number of voters signed in?
Right, and if the state has a record of it, I suppose it should be available through a FOIA request.
Also, why are there two primary dates, Feb 28 and then August 7?
Feb 28 is just for the presidential primary and August 7 is the state primary.
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Looks like QB and I agree, in principle.
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I’ve had a firm opinion that campaign contributions should be unlimited and fully disclosed (above a silly limit where the costs of disclosure exceed the donation). Say, anything over $20. The Enid Green Waldholtz scandal in Utah illustrated the folly of the current campaign system.
This opinion, by the way, preceded Citizens Untied.
BB
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I should clarify a bit. When I say think contribution limits probably do not violate the First, it doesn’t mean I think they are a good idea.
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FB, we are in total agreement—that’s been my opinion, predating CFR. See who feels it’s worth throwing millions at a candidate, and all will be right with the world. And it would be fodder if less-than-great folks donated to your campaign.
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“Still, I remember when constituent service was taken more seriously by everyone from the most liberal to the most conservative congressperson or senator. So the process has become more cynical in the last thirty years [not simply in the last two years].”
Couldn’t this really be a function of a large increase in population while the number of House seats has been frozen since, what, 1915? The constitution sets the number of Senators per state at two, so you have the same problem there as well, much higher population for the same two Senators. My arguement isn’t that their “not bought,” when weren’t they , but more along lines of more people wanting things (nipple suckers?) and the same amount of nipples since the early 20th century.
Just a quick question for all, when were elections less influenced by money?
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Couldn’t this really be a function of a large increase in population while the number of House seats has been frozen since, what, 1915?
I don’t think so, George. More staffers assigned to respond is the answer. I think staffers, as late as my great interaction with Pete Wilson [R] SD-CA, were very responsive, and my client was being screwed by SS in TX. My [D] congressman’s staffer took my complaint over the phone, called Wilson’s staffer, and Wilson himself called me back.
I was John Carter’s roommate in law school and raised over $1000 for him when he first ran as a [R] from Round Rock and his staffer won’t call me back b/c I am 4 mi. south of his CD.
My own congressman, McCaul, doesn’t have staff that returns calls as far as I can see.
Maybe the internet has something to do with it.
Doggett’s staff does return calls, and so does Cornyn’s. I think KBH is angry at me, but it could be she is no longer returning calls either.
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A discussion on the Diane Rehm show this morning, germane to this thread
Don’t know that they’ve ever really been less influenced by money, McWing. Maybe GW?
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QB/Mark:
Thanks for your input. And QB (and FB) has even answered one of my follow-up questions. Do you think disclosure about who donates to whom is constitutional? Or is anonymity protected as well?
Re banning foreign money. How would one determine the origin of money spent by a multinational corporation? What would the bright line be?
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I honestly don’t have a strong position regarding constitutionality of campaign contribution limits. I simply think they’re not merely ineffective, it’s antiffective. [Yes, I make up words too. Awaiting a shot across the bow from Scott.] Holy crap! That word is defined. [Just looked it up.] Ah well, I never said I was original.
OK. Back to topic. Campaign contribution laws seem to me to be squeezing the balloon. It’ll push out somewhere else. As for foreign money, I’ll go with since it’s not American money, it doesn’t have the rights that American money has. As we have tax laws for that sort of thing, go with those. Naturally, Google will shift its money around so that it can spend as much as it needs to do while minimizing the tax burdne.
BB
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FB:
Yes, I make up words too. Awaiting a shot across the bow from Scott.
You can make up words all you want, without objection from me. It’s when you invent definitions for already existing words that I’ll say something.
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