Pat's Original Proposal - 98 Views Before Transplanted Here

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(1) Pat's original proposal 3 days before the State of the Union Speech;
(2) NY Times news account of the Supreme Court Decision; and
(3) Reuters news account of President Obama's attack on the decision during the State of the Union speech and Justice Samuel Alito's televised reaction mouthing "not true" to the President's claims.
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Pat's Original Proposal - 98 Views Before Transplanted Here

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Supreme Court Jan. 21st Decision on Campaign Contributions
by Pat » Mon Jan 25, 2010 2:40 am
I propose that we focus on the Supreme Court's 1/21/2010 decision eliminating restrictions on campaign contributions of corporations, labor unions, etc., as unconstitutional restrictions on "free speech."

Editorial Note = the 183 pages of text of the opinions (approximately half of which comprises a passionate dissent) can be viewed at

NY Times – January 21, 2010

Justices, 5-4, Reject Corporate Spending Limit
By Adam Liptak

WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.

The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

The decision will be felt most immediately in the coming midterm elections, given that it comes just two days after Democrats lost a filibuster-proof majority in the Senate and as popular discontent over government bailouts and corporate bonuses continues to boil.

President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.

The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.

Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings.

Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” Justice Kennedy wrote. Justice Clarence Thomas dissented on this point.

The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing.

“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”

Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.

Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.

The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”

But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.

The McCain-Feingold law contains an exception for broadcast news reports, commentaries and editorials. But that is, Chief Justice John G. Roberts Jr. wrote in a concurrence joined by Justice Samuel A. Alito Jr., “simply a matter of legislative grace.”

Justice Kennedy’s majority opinion said that there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory would allow Congress to suppress political speech in newspapers, on television news programs, in books and on blogs.

Justice Stevens responded that people who invest in media corporations know “that media outlets may seek to influence elections.” He added in a footnote that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.

On its central point, Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Alito, Thomas and Antonin Scalia. Justice Stevens’s dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.

When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds. The court could have ruled that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law. Thursday’s decision rejected those alternatives.

Instead, it addressed the questions it proposed to the parties in June when it set down the case for an unusual second argument in September, those of whether Austin and McConnell should be overruled. The answer, the court ruled Thursday, was yes.

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Kennedy wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Reuters – 10:35 pm EST - 28 Jan 2010

White House Defends Obama's Court Ruling Criticism
By David Alexander

WASHINGTON (Reuters) – The White House squared off on Thursday against conservative critics who questioned whether President Barack Obama had gone too far by condemning a Supreme Court decision in his State of the Union address to Congress.

Obama's very public criticism of the ruling was highly unusual for a president, and it drew a visible reaction from Justice Samuel Alito, who was shown on television shaking his head and apparently mouthing the words "not true."

The Supreme Court's 5-4 ruling last week said long-standing campaign finance limits violated the constitutional free-speech rights of corporations. Critics said it opened the door to massive corporate spending on national elections.

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," said Obama, a constitutional lawyer.

"I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities," he said, urging Congress to pass a new law to help correct the problem.

The Supreme Court is considered a co-equal power along with the presidency and the Congress under the U.S. Constitution, which demands a separation of the judicial, executive and legislative branches of government to prevent abuse of power.

Justices are appointed by the president and confirmed by the Senate. The court originally was far weaker than the other branches, and since that time presidents, while chafing at its rulings, have generally avoided action that could erode its authority.

Alito had no comment on the controversy, a Supreme Court spokeswoman said.

The White House said the president disagreed with Alito's legal position on the issue. As a senator, Obama voted against Alito's confirmation as a Supreme Court justice. Alito, a member of the court's five-member conservative majority, was appointed by then-President George W. Bush.

"One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private," White House spokesman Bill Burton said. "This is one of those cases."


Obama's remarks quickly came under fire after the speech Wednesday to a joint session of Congress. Senate Republican Leader Mitch McConnell said the president was "completely wrong" about the case.

He said contrary to Obama's assertion, federal regulations as well as a law untouched by the court ruling barred foreign nationals or foreign corporations from making contributions to U.S. election campaigns.

"The court ruled unconstitutional sections of federal law that barred corporations and unions from spending their own money to express their views about issues and candidates," McConnell said. "This was the right decision because democracy depends upon free speech, not just for some but for all."

His comments echoed those of the independent, which concluded it was unclear whether the court's ruling would lead to a flood of campaign advertising by foreign-based companies because a law still on the books bars them from spending money on U.S. elections.

Former Alaska Governor Sarah Palin, the Republican vice presidential candidate in the 2008 election, questioned Obama's truthfulness.

"When we see an issue like this, words spoken that may not be true coming from our president and embarrassing our Supreme Court and not respecting the separation of powers, we have a problem," said Palin, now a commentator for Fox television.

She said those sorts of comments were the reason "people are disenchanted and are becoming more disengaged" from government, "and that's illustrated there by that justice mouthing those words, 'Not true.'"

Vice President Joe Biden defended Obama's remarks. "The president didn't question the integrity of the court or the decision that they made," Biden told ABC's "Good Morning America" program. "He questioned the judgment of it."

The White House issued a fact sheet defending Obama's statements, noting that the four justices who dissented from the decision had raised concerns that it would open the door to unchecked spending by foreign-owned corporations.

But the majority decision in the case indicated the ruling was not addressing the question of whether the government could act to prevent foreign individuals or associations from influencing U.S. elections.

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