U.S. Supreme Court prefers monied speech to liberated speech

The U.S. Supreme Court has continued its project of creating coin-operated elections in America, with its decision in the Arizona case of McComish v. Bennett. The Supreme Court struck down a provision of the Arizona law that would increase state candidate financing when an opponent of a clean money candidate financially increased his or her stake in dirty money. Here's how the stricken provision was described in the Court's syllabus:

They are also granted additional matching funds if a privately financed candi- date’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in op- position to a publicly financed candidate, exceed the publicly financed candidate’s initial state allotment. Once matching funds are trig- gered, a publicly financed candidate receives roughly one dollar for every dollar raised or spent by the privately financed candidate— including any money of his own that a privately financed candidate spends on his campaign—and for every dollar spent by independent groups that support the privately financed candidate.
Dan Froomkin of Huffpo offers this analysis:
Arizona's law was passed in 1998 after a wave of corruption scandals. The idea was to encourage candidates to forgo the scramble for money, with all its inherent invitations to corruption -- to spend more time speaking to the electorate, and less time speaking to potential funders. In that sense, its goal was very much to increase genuine political speech. But to the Roberts court, money as speech takes precedence over speech as speech.
Justice Kagan's Dissent hammers the Majority's pro-corruption position in the form of a story:
Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government. Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who “bundle” campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption. Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. They too enact contribution limits and disclosure requirements. But they believe that the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers. [More ...]

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Defensive Justice: Inside the mind of Supreme Court Justice Samuel Alito

On Monday, May 16, 2011, Associate Justice of the United States Supreme Court Samuel A. Alito spoke at a function sponsored by the Bar Association of Metropolitan St. Louis. I attended because I was curious about his thought process; what was going on in his mind? I had no idea what Justice Alito was going to discuss until he began to speak. I recorded his speech on a small recorder and I took some notes. Alito is part of a Supreme Court majority that has repeatedly written opinions that have wrested power from average citizens at the expense of powerful corporations. Yet Justice Alito began his talk by proudly reciting an inscription on the walls of the United States Supreme Court: "Equal Access to the Law." That’s a strange line to recite by a judge who has voted to bar ordinary citizens from having meaningful access to courthouses (see AT&T v Concepcion) and barred them from having meaning access to democracy itself by unleashing an ocean of money into the electoral process (see Citizens United and see here). [caption id="attachment_18157" align="alignright" width="300" caption="Image: Creative Commons"][/caption] Alito titled his talk "The Top 10 Things You Might Not Know about the United States Supreme Court." Because Alito is often touted as an “intellectual,” I assumed that the talk might be intellectually challenging, but it was a self-absorbed and disingenuous talk delivered in a humorless tone. Alito’s talk was also highly defensive, as described below.  His talk was especially disappointing in light of Alito’s claim that he has given this same talk to other audiences on many other occasions. That would presumably would have given him the opportunity to hone some inspirational messages into his talk, but I felt no inspiration.  Feel free to disagree with me after listening to Alito’s entire speech here. Without further ado, here are Samuel Alito’s "top ten things” along with my reactions to these “things.” Topic one: "Most cases are not about the Constitution." I never assumed otherwise, and I suspect that most audience members (all most all of them practicing attorneys) never assumed otherwise. It was curious is that Alito mentioned Brown versus Board of Education as one of the great cases coming out of the United States Supreme Court. Brown was a case in which the court was looking out for the little guy, something the current court has not shown much interest in doing. Therefore, one might wonder how the majority on this court would have reacted in such a case had this majority been sitting on the bench back in 1954. If this sounds harsh, give me one reason to think otherwise. Brown pitted the Court against legislators; it was inconvenient decision for those in power. It was a decision driven by a desire for “social justice,” an alien concept for the current court. Topic two: "Most cases are governed by precedent." [More . . . ]

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The U.S. Supreme Court’s trajectory on campaign cash

In the April 11, 2011 edition of The New Yorker, Jeffrey Toobin connects the dots and announces what the United States Supreme Court has in store for us. The latest evidence is the attitude displayed by a majority of the justices during an argument concerning the constitutionality of an Arizona clean-money level-the-playing field election law. All of this conservative activism is allegedly being done to make sure that the government won't "stifle debate," even though the Court's approach is drowning out non-monied natural people and inviting large monied corporations to rig elections.

The implications of the Court’s approach are now becoming more clear. In the Citizens United case, the majority decreed, in an opinion written by Justice Anthony M. Kennedy, that corporations and other organizations could bypass the old limits by giving unlimited amounts not to candidates but to nominally independent groups that support them. (Corporations, of course, traditionally give more to Republicans.) But the logic of the decision—and the views expressed by the majority at the argument last week—suggests that in the future the Court will allow corporations to skip the third parties and give money directly to the candidates. It also implies that any limit on the size of contributions, by individuals or corporations, may now be held to be unconstitutional. The Court did suggest that requirements calling for the public disclosure of contributions might pass constitutional muster, but Congress shows no inclination to enact any such rules. President Obama’s DISCLOSE Act, which would have bolstered disclosure requirements, died in Congress last year. (Clarence Thomas, the silent Justice during oral arguments, believes that even disclosure violates First Amendment rights.)
For a succinct and accurate rendition of Citizens United, check out this video by Annie Leonard.

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Federal Reserve ordered to disclose recipients of bailout funds

Here's some good news from the U.S. Supreme Court:

The Federal Reserve will disclose details of emergency loans it made to banks in 2008, after the U.S. Supreme Court rejected an industry appeal that aimed to shield the records from public view. The justices today left intact a court order that gives the Fed five days to release the records, sought by Bloomberg News’s parent company, Bloomberg LP. The Clearing House Association LLC, a group of the nation’s largest commercial banks, had asked the Supreme Court to intervene.
It takes some real chutzpah to deny the public the right to know how $3.5 trillion in public funds were used.

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Taking back the Constitution

In the February 7, 2011 edition of The Nation, Garrett Epps argues that the political right is trying to steal the United States Constitution "in plain sight," and that it's time to take it back because it belongs to all of us. His article is titled "Stealing the Constitution: Inside the right's campaign to hijack our country's founding text--and how to fight back." Epps argues that it's time to counteract the "poisonous rubbish" that the far right's self-appointed constitutional "experts" are teaching well-meaning citizens. One of those "experts" of the far right is United States Supreme Court Justice Antonio Scalia, who has just agreed to serve as a faculty member for Michele Bachmann's new "Constitutional School" for new members of Congress. How has the political right been able to successfully portray itself to be the only party that can meaningfully define the Constitution? One big reason is that legitimate constitutional scholars are unwilling to step into the fray in a public way. Instead,

Scholars from top schools hold forth with polysyllabic series of hermeneutics that ordinary citizens can't fathom. Meanwhile, conservatives don't hesitate to speak directly to the public-and, often, to dumb down the Constitution. They purvey a simple method: anyone who doesn't support the far right version of the Constitution is at best unpatriotic, at worst a traitor.

[More . . .]

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