Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktJeffery Toobin has an article in the New Yorker about the behind-the-scenes action in Citizens United. It’s long, so I haven’t had the chance to read it in its entirety, but here’s a “review” from Jonathan Adler at VC. The first graf:
The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.
Filed under: Constitution, Supreme Court | Tagged: campaign finance, Citizens United |
All Things in Moderation 
From the Toobin piece: “The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents.”
Well, this has become the conventional rhetorical move to draw false equivalence. But invalidating statutes that violate the Constitution is not “activism.” It is activism not to do so. And it is activism to distort the Constiution and invent rights nowhwere found in it to strike down statutes. Toobin is just a foot soldier in a long-term propaganda campaign.
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Mike, thanks. Just got home after a long day of catch-up and chose to read this article. Next I will read the critiques you linked. But I am too tired now. G’night!
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Mark:
I still await your explanation of why BO is more qualified to be prez than WMR. (I presume it entails more than just the fact that BO has already been prez for 4 years).
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Thanks for that New Yorker article. It was very detailed and nuanced. Not being a lawyer, I appreciated the review of precedents and anti-precedents. As a First Amendment absolutist, I agree with the decision but I’m troubled by the politicking and maneuvering behind it. Appointing Roberts to the Supreme Court will be perhaps George W. Bush’s most lasting legacy.
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“The Chief Justice wanted to make Stewart’s position look as ridiculous as possible.”
Robert’s didn’t do anything. The position was ridiculous on its face.
“The trio made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end.”
Frankly, I thought that was the goal for McCain-Feingold. censorship. just dressed up and called something more palatable.
“the idea that commercials are somehow unavoidable in contemporary American life”
and idea that is laughably ignorant.
“In an early attempt to protect workers from exploitation, New York passed a law prohibiting bakery employees from working more than sixty hours a week or ten hours a day”
That’s not my understanding of Lochner. I thought it was an effort of spearheaded by larger organizations to put down the non-unionized family run competition.
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Based on this article and the recent ACA broccoli case, the conservative justices seem rather fond of reductio ad absurdium hypothetical questions.
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Hypotheticals are a routine part of judges’ repertoire in oral argument.
No one had ever answered the broccoli question.
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” I thought that was the goal for McCain-Feingold. censorship. just dressed up and called something more palatable.”
And here I always thought it was about corruption. How silly of me.
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I don’t follow. What does corruption have to do with it? Unless you’re equating a campaign contribution to be a bribe.
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I’m saying it is naive to ignore the relationship between money in politics and political favors. Everything is a market, right? Just what is being bought & sold in DC?
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bsimon:
I’m saying it is naive to ignore the relationship between money in politics and political favors. Everything is a market, right? Just what is being bought & sold in DC?
Both McCain and Feingold had each engaged in extensive fundraising for their respective campaigns. Are you saying that the law they authored together is an implicit admission that they had been selling their congressional votes, and needed a law in place to stop them from doing so?
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The base unit for sale is access. upgrades, of course, are available.
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Are you saying that the law they authored together is an implicit admission that they had been selling their congressional votes, and needed a law in place to stop them from doing so?
McCain was a member of the Keating Five.
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yello:
McCain was a member of the Keating Five.
He (along with Glenn) was also cleared of any impropriety.
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The base unit for sale is access. upgrades, of course, are available.
That sounds hilariously true. Are there rate sheets available?
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well, there’s the wholesale price — what I pay — then there’s what I charge you, marked up off of the wholesale price. plus expenses.
and that wholesale varies by model. I can get you in a stripped down econbox (junior back-bencher of the out of power party — say a freshman House D) for next to nothing. but, i’ll level with you. the ride just isn’t all that.
i think this model is a better fit. been in office for a couple of years. on the committee with jurisdiction in your area of concern. take care of her and we’ll all go places.
but maybe that’s not your thing. you look like a muscle car guy. and let’s face it. we all are. committee chairman. power and substance, all in one package.
oh that one? — don’t think that’s in your budget. you can get two of these committee guys for one of those. leadership is more of an aspirational model.
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So yello, what you’re failing to understand is that guy who was cleared of wrongdoing spent the subsequent couple decades of his career trying to censor speech. His signature legislation had absolutely nothing to do with Keating. It was about censorship, nothing more. Stop being so naive.
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bsimon:
that guy who was cleared of wrongdoing spent the subsequent couple decades of his career trying to censor speech.
You are confused. The discussion was about a single piece of legislation. Not what a particular sponsor of that legislation spent two decades trying to do.
His signature legislation had absolutely nothing to do with Keating.
Actually I suspect it did. The “appearance of impropriety” stung him in the Keating fiasco, and if I recall he often defended M/F on the grounds that it eliminated or reduced such “appearances”. It also censored people.
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right — he had to be protected from himself. i have to censor these ads and limit these campaign contributions, otherwise i’ll be, or appear to be, corrupt.
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Got it. So Feingold was the backwoods hick enthralled by the elder statesman who lured the naive youth into the deal with promises of …. u, something important, apparently.
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nova:
I’m cracking up reading your list. Now, we all know that there are committee chairmen and then there are Committee Chairmen. How much for the CC? “If you have to ask …”
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Speaking of Super PACs:
WASHINGTON — The push to raise unlimited contributions by a super PAC backing President Barack Obama’s reelection has run into a number of hurdles since Priorities USA Action was set up by former White House aide Bill Burton in 2011. Major Democratic donors have shunned the group, denying it funds to compete equally with the big Republican super PACs and social welfare nonprofits.
The most common complaint from Obama backers who won’t give to the super PAC is one that the president previously voiced: Unlimited money is bad for democracy.
“If we’re going to be the party of the people, where do we draw that line?” asked Don Peebles, a real estate developer worth upwards of $350 million and a bundler for the Obama campaign. “At the end of the day, Grant [and] Hamilton don’t vote.”
Of those who flood super PACs with big donations, Peebles noted, “People aren’t just giving this money because they care. They’re giving money to influence the government.”
Warren Buffett, the third-richest man on Earth, criticized super PACs at a May shareholders meeting: “I don’t want to see democracy go in that direction. … You have to take a stand someplace.”
In February, as it became clear that Republican super PACs and other groups would be able to raise and spend well over $100 million in the 2012 election, the president embraced Priorities USA Action, albeit still with reservation, and had his campaign state that he supported its efforts.
Fundraising for the group had been moribund before that. In January it didn’t even crack $100,000 in contributions. Since then, donations have ticked up, but not to the levels seen by the Republican groups.
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The discussion was about a single piece of legislation. Not what a particular sponsor of that legislation spent two decades trying to do.
Scott, do you really believe our discussions should be so limited?
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lms:
Scott, do you really believe our discussions should be so limited?
Please, lms. Read the exchange again. The only thing I was trying to limit was the effect of bsimon’s caricatured (mis)representation of what I had said.
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Sorry to go off topic I guess, but I thought Mark and a few, or most others, would appreciate this one.
This probably isn’t the best link to explain the legalities, but it’s the first one I found. I’m sure we’ll hear more soon.
NEW YORK — A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.
U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a “chilling impact on First Amendment rights.” She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.
“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” the judge said.
She said the law also gave the government authority to move against individuals who engage in political speech with views that “may be extreme and unpopular as measured against views of an average individual.
“That, however, is precisely what the First Amendment protects,” Forrest wrote.
She called the fears of journalists in particular real and reasonable, citing testimony at a March hearing by Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members, conversed with members of the Taliban during speaking engagements overseas and reported on 17 groups named on a list prepared by the State Department of known terrorist organizations. He testified that the law has led him to consider altering speeches where members of al-Qaida or the Taliban might be present.
Hedges called Forrest’s ruling “a tremendous step forward for the restoration of due process and the rule of law.”
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No one’s here so I’m out……….manana.
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lms:
Details on the suit are linked in our “Link Dump” on the left (Why I’m Suing Barack Obama). Relevant SCOTUS precedent includes Holder v. Humanitarian Law Project (“material support” statute is Constitutional).
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“The only thing I was trying to limit was the effect of bsimon’s caricatured (mis)representation of what I had said.”
The sauce for the goose is no good on the gander?
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bsimon:
The sauce for the goose is no good for the gander?
I’m not sure what this is referring to. I suppose you are implying that I have misrepresented you at some point, but I have no idea when that might have been. Perhaps you could be more specific.
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On a different note, Joe Biden was ranting about, er, something today:
http://videos.mediaite.com/embed/player/?content=RPVPP10N1VKLZP7R&content_type=content_item&layout=&playlist_cid=&media_type=video&widget_type_cid=svp&read_more=1
He’s right in a sense. I definitely don’t get it. Does anyone else know WTF he is ranting about in his “BTW” aside?
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Scott, all I have to say is that you have repeatedly demonstrated that engaging in discussion with you is fruitless & thus a waste of time. I decline to reply further for that reason. Thanks for understanding.
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bsimon:
Nice copout.
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M,Cain’s problem was that Keating’s donations embarrassed him. He had, from McCain’s standpoint, the bad fortune of getting caught. This really bruised McCain’s rather inflated sense of Honor and, worst of all from McCain’s standpoint, jeopardized his electability. McCain’s crusade thereafter was to ensure that no incumbent face serious political challenge while re-inflating his own sense of Honor. If that meant censorship, well why shouldn’t his own sense of Honor be superior to everybody else’s inferior Freedom of Speech.
There really is a lot to admire about John McCain just not his super size ego. It’s second only to one.
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“Scott, all I have to say is that you have repeatedly demonstrated that engaging in discussion with you is fruitless & thus a waste of time. I decline to reply further for that reason. Thanks for understanding.”
I have to admit that I am deeply fascinated by the fact that you keep announcing this. It says something.
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“It says something.”
I thought he deserved an answer to the direct question. I’ll try not to make that mistake again. Thanks for understanding if I’m flawed and unable to live up to the standards to which I try to hold myself. But, hey, I didn’t use naughty names, so give me a little credit for progress, eh?
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bsimon:
I thought he deserved an answer to the direct question.
I didn’t ask any question. I suggested that you might make whatever it was you were insinuating more explicit. Obviously you aren’t willing to do so, although you obviously had no problem making the insinuation in the first place. Others can judge for themselves why that might be.
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Back on topic,
“McCain’s crusade thereafter was to ensure that no incumbent face serious political challenge while re-inflating his own sense of Honor.”
Are you saying that you see no relationship between sizable political donations and political favors?
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“Are you saying that you see no relationship between sizable political donations and political favors?”
I see a direct correlation between the perceived need of many organizations to involve themselves in politics because government is increasingly involving itself in these organizations and their activities. I think governments increased regulation of more and more things is done to perpetuate this cycle.
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“I see a direct correlation between the perceived need of many organizations to involve themselves in politics because government is increasingly involving itself in these organizations and their activities.”
Roughly when do you think we passed the tipping point for this particular problem?
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1913’s as good a time as any.
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lms, thanks for the link on the indefinite detention ruling. That’s good news, along with proposed legislation changing the NDAA provisions. It is good to see that the Smith-Amash bill is at least getting a vote in the House, but we’ll see how far it gets. There also was this last week at motherjones about the Smith-Amash bill and an R alternative proposal incorporated into the next pending defense authorization bill.
Some legislators have responded to the NDAA backlash with proposals that do not truly address the matter. Rep. Scott Rigell (R-Va.) offered legislation that would “guarantee” a judicial hearing for anyone captured on US soil. The proposal effectively does nothing because the Supreme Court has already ruled that terror detainees, citizens or otherwise, can use the right of habeas corpus to challenge their detention. But being able to challenge a detention is not equivalent to the right to a trial. Rigell’s proposal “doesn’t even come close to the rights that Americans are due under the Constitution,” says Adams, Amash’s spokesman.
Still, Rep. Buck McKeon (R-Calif.), the chairman of the armed services committee, has integrated the language of Rigell’s “habeas guarantee”—not the Smith-Amash proposal—into his version of the defense bill.
The Smith-Amash bill also faces serious opposition in the Senate, especially from a group of senators who tried to authorize indefinite detention for US citizens last year.
The issue of indefinite detention of U.S. citizens certainly has produced some strange bedfellows. When I am reading and agreeing with something on the Tenth Amendment Center website, I wonder if I need to get my water tested, lol.
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Great conversations – I wish I had time to engage. I don’t. It may be a week before I see daylight.
LMS, thanx for the link.
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I think governments increased regulation of more and more things is done to perpetuate this cycle.
Troll, does this mean you think government increases regulatory activity for the express purpose of creating or maintaining an environment conducive to sizable political contributions in exchange for political favors? If not, can you explain what you mean by “this cycle”?
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Roughly when do you think we passed the tipping point for this particular problem?
The Teapot Dome Scandal
McCain’s shame was that he openly and directly intervened with regulators on behalf of a large campaign contributor creating a quid pro quo impression of being bought. His reaction was that preventing large contributions in lieu of behaving honorably would fix that problem.
All politicians complain constantly that the endless fund raising cycle prevents them from spending more time directly serving their constituants. Yet none can afford to unilaterally disarm. We are now seeing deep pocket individuals and groups setting up third party (and not in the political party sense) organizations who recruit and fund their own slates of candidates.
I’m not saying this is good or bad in that weather is neither good nor bad. It’s just an observation of the current climate.
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Here is Glenn Greenwald’s piece on the ruling by Forrest. He seemed a little surprised. Can someone explain to me what might come next? More lawsuits right?
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“Troll, does this mean you think government increases regulatory activity for the express purpose of creating or maintaining an environment conducive to sizable political contributions in exchange for political favors? If not, can you explain what you mean by “this cycle”?”
For the most part, yes.
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Having now skimmed Forrest’s opinion, I’m baffled by her reasoning. I don’t know what she’s enjoining, who this injunction applies to, and what the government can’t do now. I’m confused as to why the plaintiffs even have standing. Most of the stuff in those sections of the NDAA were already being done by the Bush/Obama Administrations under the AUMF from 2001.
The DoJ will appeal to the 2nd Circuit, who will reverse. Hedges, et al. may then appeal to SCOTUS, where it will likely not be granted cert. If the Justices decide to hear the case, the 2nd Circuit opinion will be affirmed.
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Mike, now I’m even more confused. This legal stuff is definitely not my forte.
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Mike, I too was confused by items you mention, but nonetheless glad to see this on record in some court. Not having time to read further into the case, I wonder if standing was not raised as an issue? The legal process will take some time and probably not arrive at a result fruitful for those who oppose indefinite detention, which is why I am also glad to see some proposed legislation on the matter.
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okie,
About standing, this is what Judge Forrest had to say:
“It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.”
I’m not sure I understand the DoJ’s position here either, unless they are arguing for even more expansive powers than currently wielded.
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