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Oyez, Oyez

SCOTUS2The first Monday in October is when the Supreme Court of the United States traditionally meets for the first formal session of its annual terms. Yesterday was no exception. There is every reason to expect an active and controversial term to follow between now and June of 2014 when the session ends.

It’s worth noting that the Court today enters its fourth term with its current makeup. By now, most people know the setup of personalities. While all nine jurists are important, four stand out. Chief Justice John Roberts administers and guides the institution in a manner eerily reminiscent of John Marshall, mostly right of center but with his primary loyalty to the judiciary itself rather than to the partisan ideology that set in motion the political forces put him at the apex of the American legal profession. Antonin Scalia, the Court’s dean (meaning its most senior Justice), is the center of the Court’s so-called right wing, while the balance of intellectual power on the so-called left wing of the Court shifting seemingly to Justice Elena Kagan, leaving the fulcrum of power on close issues still resident, as it has been for years now, with Anthony Kennedy.

Because of Kennedy’s status as the perceived critical vote, a lot of litigants on both sides of many traditional ideological divides seem to think that they have an advantage in timing right now, before the makeup of the Court changes as it inevitably but unpredictably will in the future.

The High Court is considered an “essential” part of government and therefore is open for business despite the pending shutdown of the rest of the government. So yesterday, the High Court heard oral argument in two cases — one is a complex securities case presented in three related lawsuits, and the other is an age discrimination case. Most lawyers, I expect, will see the complex securities litigation in the wake of a collapsed Ponzi scheme as the meatier of the two, but the age discrimination case looks more interesting to me. The discrimination case deals with both a subject matter closer to my own area of practice and a maneuver of using a direct Constitutional claim to sidestep an inconvenient provision of a statute.

But neither of these are where the action is going to be this year. Looking up and down the Court’s docket, here are the cases this year that you should watch closely.

In McCutcheon v. Federal Election Commission, the Court will consider Congress’ power to regulate (that is to say, “limit”) contributions of money to candidate finance committees. Limits on individual contributions to individual candidate’s committees have been upheld since the inscrutably complex landmark campaign finance case of Buckley v. Valeo, although in the wake of the 2010 decision in Citizens United v. Federal Election Commission we’ve reason to question the premise that limits on contributions are consistent with the prevailing interpretation of the First Amendment as applied to election law. It’s unlikely but not inconceivable that Buckley will be overturned or modified such that all Congress can do is require sunshine on campaign finance but otherwise allow essentially anyone to contribute any amount of money at any time.

This case is up for oral argument today (October 8). If you’re one of those people who is still fuming over Citizens United, maybe you’ll want to make some time to pay attention to these arguments.

Near and dear to my interests is Town of Greece v. Galloway, a case involving a municipality’s use of sectarian prayers to open meetings of its council. A case affecting how my own city does its official business will be directly affected by the decision in this case, which represents the culmination of a national effort by religious conservatives to shift the law such that official entities may refer explicitly to their preferred religion. This case more than many others I can recall sets up a class between the Free Speech and Free Exercise Clauses on the one hand, and the Establishment Clause on the other: On the one hand, people should be able to pray as they like and its no business of the government telling them what they can or cannot put in their prayers. On the other hand, having a body of government solicit a prayer that endorses a specific deity sure looks like the government is endorsing the worship of that deity.

There’s two “structural” extent-of-power cases to watch: one dealing with Presidential power, one dealing with state power, and one dealing with judicial power.

Potentially among the most politically important cases is NRLB v. Noel Canning, because this case deals with the extent of the President’s ability to make appointments to agencies while Congress is in recess. When, as now, Congress and the President are deadlocked for political reasons, many appointments to fill executive-level vacancies in the bureaucracy seem possible only if the President can bypass the threat of a filibuster in the Senate or some other kind of interference from the House. This case will examine the validity of such a recess appointment while the Senate was engaged in procedural gamesmanship of its own.

Law geeks are going to be fascinated with Executive Benefits Insurance Agency v. Arkison. Bankruptcy courts are creatures of statute, not of the Constitution, like regular federal courts. So they don’t have the same ability as regular federal courts to hear all sorts of cases; they can only hear cases “arising under” Federal law. We learned this in the case of Marshall v. Stern, the famous Anna Nicole Smith probate case. Normally, such “core proceedings” are enough for bankruptcy courts to do do their jobs. But most (if not all) states have “fraudulent transfer” laws that can void transfers of money to shelter it from judgment creditors. So if I have $100,000, and I set up a dummy corporation and put my $100,000 in it, and then I file for bankruptcy and say I have no assets, can the bankruptcy trustee “claw back” the $100,000 in the limited jurisdiction of a bankruptcy court? Or, does the trustee have to go to a state court or a regular Federal court to get that money? And does it matter if my corporation consented to the bankruptcy court’s hearing the case?

In the realm of civil rights legislation, an examination of the extent of permissible use of statistical data to prove up an inference of discriminatory intent, in the context of the Fair Housing Act, will be up for review in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. That’s how a lot of anti-discrimination law gets done, so if this one goes sideways, both the governmental and civil rights bars are going to have to take a step back and re-think what kind of evidence goes in to these cases.

There will also be another examination of affirmative action in higher education — here looking at the ability of voters to abolish race-based and sex-based considerations altogether though a ballot initiative — in Schuette v. Coalition to Defend Affirmative Action, a case dealing with the ever-controversial admissions office of the University of Michigan.

At least one prominent constitutional scholar has identified McCutcheon and Schuette as the clear headline cases of the Term. Perhaps that’s because there are no direct abortion cases on the docket this year — nothing, not voting rights and not same-sex marriage, electrifies the Court quite like abortion.

The closest we come to an abortion case is Cline v. Oklahoma Center for Reproductive Justice, a case involving a state law requiring doctors to strictly adhere to FDA guidelines superceded by advances in scientific research but not yet updated in the FDA approved labels, when administering certain drugs that can be used in aborting pregnancies. (I hesitate to call these drugs “abortifacents,” because I lack the medical knowledge to apply such a label. But I suspect it is appropriate.) For instance, can the state limit the ability of a doctor to prescribe a certain drug only to terminate ectopic pregnancies based upon the FDA approved label referring only to that situation?

There is also a case involving “buffer zones” for protestors around abortion clinics, so that’s always ripe for some interesting First Amendment issues in the world of fine-tuning time, place, and manner legislation. I predict, though, that McCullen v. Coakley will be interesting only as an examplar of whether particular time, place, and manner restrictions are appropriate under the First Amendment or not.

There’s two criminal procedure cases that some court watchers have flagged to keep an eye on. In Kansas v. Cheever, the defense proffered an expert psychologist to testify that the defendant could not have formed the requisite mental state necessary to be found guilty of the crime, and the state rebutted with its own expert evidence based in part upon statements made to a court-appointed mental examiner during an early mental evaluation. Does use of those statements by the prosecution to rebut the defense expert violate the Fifth Amendment’s prohibition against self-incrimination, or does the defense’s introduction of the expert testimony waive the right against self-incrimination?

Potentially more broad in effect than Cheever is Fernandez v California. Can your roommate give consent for the police to conduct a warrantless search of your home? I wonder if the roommate can give consent to search a shared area of the home like the living room, but not an informally “reserved” area like the defendant’s bedroom. Which might seem both fair and realistic for a roommate situation, but that’s a much more complex inquiry for a court to get into, and as a matter of law, all roommates have equal rights to the whole of the rented premises. I see a tangential effect of this ruling on electronic surveillance — if your cell phone company consents to a search of data that it co-owns with you, is that an effective consent or an unreasonable search?

On my own, I’m interested in Navarette v. California. Police get an anonymous tip that a vehicle is being driven by someone who is inebriated. Is that enough to pull over the vehicle, or is corroborating evidence (likely the officer personally witnessing erratic or dangerous maneuvers) needed to justify the stop?

Not currently on the docket, but reasonable candidates to become mid-term additions, are any of a number of challenges to various facets of the Affordable Care Act (most likely, in my opinion, Free Exercise-based challenges to the contraceptive mandate) and the New Mexico case of Elane Photography v. Willock.

Also of interest on today of all days is a decidedly odd interview given by Justice Scalia to New York Magazine. I call it “odd” because it is a remarkable departure from the ideal of judicial reticence to publicity and scrutiny, and in its own way is deeply personal to a polarizing figure. But it’s fairly clear that Justice Scalia is going to do what he wants and insist that there’s nothing wrong with what he does. IMO, he skirts but does not cross the grounds of judicial propriety. A few passages are remarkably insightful, in particular this relating to the seeming gravitational attraction between conservative legal thought and emphasis on the power of the executive branch:

Q: You came to Washington as a lawyer during the Nixon administration, just before Watergate. What on Earth was that like?

A: It was a sad time. It was very depressing. Every day, the Washington Post would come out with something new—it trickled out bit by bit. Originally, you thought, It couldn’t be, but it obviously was. As a young man, you’re dazzled by the power of the White House and all that. But power tends to corrupt.

Q: Then you served in the Ford administration. That must have been an awfully lonely time to be a young conservative.

A: It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had a president who had never been elected to anything except … what? A district in Michigan? Everything was in chaos. It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

I hadn’t particularly thought about the attraction conservatives hold for executive power in terms of a reaction to anti-Watergate Congressional activism. I’d always thought conservatives of that era were reacting to the Warren Court’s restrictions on criminal procedure during a time of high public apprehension about crime. It’s worth pondering how much of the reaction to Congress trying to prevent another Watergate was considered and principled from a Constitutional perspective, and how much of it was reflexive and motivated by a need to backstop a loss of partisan efficacy. Remarkable either way that this banner is still being carried out into the field forty years later, and that it still shows through, with eyebrow-raising candor, in Justice Scalia’s remarks.

I commend the entire interview to you, Readers of all political stripes. Love him, hate him, or simply find him a critical and fascinating figure, Antonin Scalia is one of the Court’s centers of gravity, and an insight into Justice Kagan’s hunting buddy’s decision-making process will be illuminating.

His decision-making process, as that of his eight Brother and Sister Justices, will be hot topics as we move through this year’s term.
 
Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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241 thoughts on “Oyez, Oyez

  1. In McCutcheon v. Federal Election Commission, the Court will consider Congress’ power to regulate (that is to say, “limit”) contributions of money to candidate finance committees.

    It’s obvious that the First Amendment does not refer to money, because money is not speech. Therefore when Congress regulates how much money you spend promoting an issue or a candidate, it is not regulating speech. Likewise, when it regulates how much money you can spend on creating a news network, it is not regulating speech or the media. And when it regulates how much money you can spend on bumper stickers for your car (I’m advocating a limit of $0), it is not regulating speech.

    This is so obvious I’m not sure why we’re still having debates about it.

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    • I’m with you, in theory. Money is not speech. But when tyranny goes after free speech, its usual technique is to smash the printing presses, which do cost money. When these nightmare coups go down, the plotters first seize the television and radio stations with dreary predictability.

      Freedom of the press cannot be entirely extricated from the cost of the presses.

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      • Form follows function. The function of the press is to print speech. Perhaps if we wire the press up with a heating element, we might make panini in it. Beyond that — Resolved: a printing press is an organ of speech.

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      • Stop the presses. Is money speech? If the press costs money, it isn’t free speech, if the television isn’t free, it isn’t free speech, if radio isn’t free, it isn’t free speech. You’ve said money isn’t speech. I say it is. I can spend my money as I like and if I tell a printer to print up ten thousand broadsheets for my political rally, the First Amendment gives me the perfect right to do so.

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      • If the press costs money, it isn’t free speech

        Well, we could conflate different meanings of “free”–one being “freedom from legal constraint” and the other being “doesn’t cost a penny”–but I don’t see how that provides any clarity.

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      • If only HTML had provided us with a sarcasm tag…. I completely agree, money isn’t speech. But money is converted into political power as surely as potential energy is converted into kinetic energy. Every effort to attenuate the power of money in politics has gone down in flames, culminating in Citizens United v. Federal Election Commission, 558 U.S. 310.

        Until Congress addresses the issue, putting limits on itself, the courts are powerless to stop the flood of PAC money sewage coming up through the grates.

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      • So since there is Freedom of Speech i can shout in the face of an ex “i’m going to kill you” for an hour? I can buy pictures of child porn?

        Of course there are other factors in both these hypotheticals where freedom of speech can, is and should be limited. But isn’t that the point about CU and whatever else we might do, that just saying FOS doesn’t address other conflicts that might be present.

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      • Trick question James….there is no difference between those three things. Or well actually the point is that FOS is a right but it can conflict with other things in which case it can be limited. That really is the entire point.

        Is there really that much disagreement that the huge piles’o’cash that are used to buy influence in our politics aren’t a problem? There are huge disagreements about what to do about it if anything clearly, but isn’t the problem pretty clearly agreed on in one way or another.

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      • Trick question James….there is no difference between those three things.
        Then you can identify the harmed individual in the third case?

        Is there really that much disagreement that the huge piles’o’cash that are used to buy influence in our politics aren’t a problem?
        Are you sure that's where the disagreement lies?

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      • There could be a lot of harm in the third case if the rich man can be preferential treatment from the government. To use an obvious example would it be okay if the check Joe wrote was to the judge presiding over his criminal trial? Why shouldn’t that be okay? Is it limiting Joe’s freedom of speech or the judges to say he shouldn’t take a check from a guy he is judging? Well if that is limiting Joe’s FOS then I’m all for limiting it.

        If money can buy government preference than that seems like a harm to the rest of us.

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      • Is there really that much disagreement that the huge piles’o’cash that are used to buy influence in our politics aren’t a problem? There are huge disagreements about what to do about it if anything clearly, but isn’t the problem pretty clearly agreed on in one way or another.

        I would say focusing on the huge piles of cash is looking at the wrong thing. A huge pile of cash can be used to buy influence, or guns, or drugs, or a huge vault to make a cash swimming pool in; or, it can be used to buy warm footie jammies for orphans. So clearly the money itself isn’t the problem; it’s the ends to which it’s put.

        Personally, if Bill Gates (or his company) wants to donate a kabillion dollars to the candidate of his choice, I think he (or they) should be able to.

        What I would LIKE, is some way for these sorts of contributions (at least the large ones) to be easily (and I mean TRIVIALLY so, like a simple 5-minute web-search) visible, public record* in such a way that voters can clearly see where each candidates’ money is coming from, and vote accordingly (and adjust future voting patterns with the benefit of hindsight).

        I’m not sure how easy this is to do in practice though. Seems like whatever rules we make are going to get gamed.

        *I realize this kinda conflicts with my vigorous defenses of anonymity and pseudonymity and privacy elsewhere. But I am willing to make an exception here, especially for large sums – presumably, someone (or a corporation) with that kind of cash is already in the public eye, and can hire bodyguards/personal assistants/screeners if necessary.

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      • Premise: Of course free speech doesn’t cover stuff like “I’m going to kill you!”

        Premise: The Republicans are effectively screaming that they’re going to kill us.

        Conclusion: it doesn’t violate free speech to prevent Republicans from buying commercials.

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      • Glyph- I agree in general. I’m not really all that hot about limiting campaign donations. I’d love to see complete transparency but that isn’t happening. In fact some of the loudest voices for unlimited campaign cash are also the ones pushing for opaque disclosure laws. Lots of people really seem to want to avoid transparency. Barring transparency though its hard for me to see how we limit our gov from being so completely bought and sold. I’d like to see candidates given free TV time for one thing.

        Clearly money can be speech but i don’t think money/speech completely overlap. Was i engaged in free speaking when i bought some fig newtons at the quik e mart on sunday? It didn’t feel like it.

        Jay- Impressively tendentious trolling.

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      • When it comes to the government, I am not sure who is arguing against transparency.

        Except the government, usually.

        Like I said, I am not thrilled about forcing people/companies to disclose these transactions for reasons of privacy/anonymity – to the extent money is LIKE speech, then requiring campaign donation disclosure is somewhat akin to forbidding anonymous political speech, which would have been a Paine for Thomas.

        Plus I’m not sure how feasible it is. Probably a million ways to get around it.

        But as a democracy, if we want to avoid even the appearance of evil, we probably need to try.

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      • Glyph- I think plenty of PACs and issue groups have wanted transparency. The PAC’s like to call themselves Patriotic Americans for Freedom, America and Patriotism but don’t want to admit all their funding comes from the Koch’s or Soros. That has actually been one of the functions of PAC’s, to provide a pretty name for a bunch of money that someone doesn’t want anyone to know is donating. I also recall some of the anti-gay marriage groups in Cali, i think, being upset that their list of who donated would be public since they were afraid of retaliation.

        People with lots of money who want to influence things like things to be opaque. The Stonecutters lose their mystique and power if everyone knows about them.

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      • I would say that political speech is among the kinds of speech that the First Amendment was intended to protect and that we’d pretty much have to demonstrate that the speech in question was effectively identical to falsely shouting “fire” in a crowded theater prior to shutting speech down rather than arguing “well, we can censor *SOME* speech… therefore the burden of proof that we shouldn’t censor this speech is on the speaker.”

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      • Of course FOS can be limited in some situations. So the question then is political campaigns one of the those situations.

        Terrifying a person with shouted threats can be prohibited, and photographing the rape of little kids can be prohibited, so why can’t political speech be prohibited?

        So to run this the other direction, if I take the position that campaign contributions cannot be limited, am I logically required to take, or at least seriously consider, the position that photographing the rape of little kids cannot be prohibited?

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        • So to run this the other direction, if I take the position that campaign contributions cannot be limited, am I logically required to take, or at least seriously consider, the position that photographing the rape of little kids cannot be prohibited?

          I suppose a part of this question becomes: Can you be liable for the contents of political campaign speech that’s brought from you. Let’s say you fund Campaign X, and X decides it’d be a great idea to plaster major ads stating Y is a pedophile and putting up photoshopped images of the same all around town.

          Should we be able to sue Donor J.H. for the actions of Campaign X?

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      • What I would LIKE, is some way for these sorts of contributions (at least the large ones) to be easily (and I mean TRIVIALLY so, like a simple 5-minute web-search) visible, public record* in such a way that voters can clearly see where each candidates’ money is coming from, and vote accordingly (and adjust future votes with the benefit of hindsight).

        I’d like to see politicians required to dress like NASCAR drivers where their clothes are covered with the logos of all their sponsors. The size of the logo would increase with the size of the contribution. C-SPAN would be a lot more interesting to watch.

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        • The point of that expansion is “if political contributions are speech, should they also come with the other obligations created by speech/expression”?

          Which does in fact include things like libel and slander suits. (Granted public figure exemption might as well make it pointless).

          Basically, logically if you are under the belief that restricting campaign contributions is restrictions on expression, then it should also be treated as expression for other purposes. If said money is used to fund libelious expression, should you be held responsible for that?

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        • But on your logical conclusion, I think in which case you’d have to be separating the act of photography from the rape (even if, technically they can’t be). Because simply photographing or drawing or writing something is speech/expression and ought not be prohibited.

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      • Nob–The issue is whether giving money to a political campaign and photographing the rape of a child are similar enough that we can use our response to one as a meaningful guide to our response to another. I’ll await your argument that they are. Yes, you can disentangle the photo from the actual rape. Does that mean the photo is harmless? Does the Constitution require that I can take nude photos of you without your consent and distribute them without any restrictions?

        greginak–Does X being a serious political problem logically necessitate that the Constitution authorizes us to prohibit or restrict X?

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        • I think the problem here is that you’re tying speech to a felony for the sake of your comparison. The photo isn’t harmless in this case because it’s the entire raison d’etre for the crime being committed to begin with.

          So what about political campaigning? What’s the raison d’etre for that? Or what’s the raison d’etre for contributing to someone’s political campaign?

          If money contributions are a form of expression, then in that case the logic would at least be that we assume all cases of political bribery, too, are simply expressions of speech and laws against bribery shouldn’t exist.

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      • James- I do think the problem of having our gov. bought and sold to the highest bidder is a serious problem. As i’ve said at some point in this thread i’m not all that hot on limiting campaign contributions. I’d prefer complete transparency regarding donations and some supports to create more speech like more free tv time for candidates. I agree there is a significant overlap between speech and money. But i don’t think its complete. I don’t think handing the checker at the quik e mart a buck for a soda was political speech. So therefore i’m a bit skeptical that handing a candidate a check for 1000 sodas or dollars is the same thing as buying a commercial to say Candidate X is a big poopie head who hates america. So i suppose there are some contradictions in what i’ve said, but i’m wacky that way.

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        • Well, I suppose we could note the reason for the contribution was suspiciously like trying to bribe a lawmaker or shape the composition of Congress to the way one wants through the use of money…. Of course just because it’s pernicious doesn’t mean it should be illegal.

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      • Is there really that much disagreement that the huge piles’o’cash that are used to buy influence in our politics aren’t a problem?

        There’s actually a lot more disagreement amongst political scientists who actually study this than you might expect. The research I’ve seen generally shows that – especially on the federal level – money, particularly transparent donations, buys access to politicians who are already like-minded but it doesn’t do much to buy votes; the far greater corruption problems tend to occur on the local level via under the table bribes rather than campaign donations.

        It’s true that people who lack money will lack access, but it’s wrong to assume that this means money crowds out average people from having access – absent purchased access, the alternative would be that even fewer people would have access, essentially restricting access to politicians to those within the politicians’ inner circle. Donations at least arguably force a politician to take up the concerns of a wider group of people (and lest we forget, when those donations flow from interest groups, those interest groups themselves often represent real constituencies).

        To use an obvious example would it be okay if the check Joe wrote was to the judge presiding over his criminal trial? Why shouldn’t that be okay? Is it limiting Joe’s freedom of speech or the judges to say he shouldn’t take a check from a guy he is judging? Well if that is limiting Joe’s FOS then I’m all for limiting it.

        I don’t think the answers to these questions are as obvious as you’d think. In particular, the problem you’re trying to address here is less with Joe’s actions (assuming they’re legal) than with the judge’s actions if the judge accepts the check but doesn’t recuse herself.

        First, if Joe is writing the check as an explicit quid pro quo in the criminal case, there’s nothing expressive about his conduct and thus it’s not a free speech issue at all.

        If Joe is just writing the check to the judge because he wants to see the judge re-elected, there’s nothing inherently wrong or illegal about Joe’s actions, which are inherently expressive. In fact, if we were to adopt the position that the simple act of writing the check in the first place, without more, creates problems that most be prohibited, then Joe could theoretically just keep getting judges removed from his case by writing them checks, whether or not the judges accepted the checks.

        No, what makes the scenario you describe problematic are the judge’s actions if she accepts the check from Joe but doesn’t recuse herself from his case regardless of whether there’s a quid pro quo. The judge’s actions in the case are not expressive – they’re the discharge of official duties – and thus anything she does in the case in response to the check is not going to be a free speech issue, even if Joe’s action in writing the check in the first place was. The judge is under no obligation to accept the check, and if she accepts the check knowing it comes from a litigant with a case in front of her we may start to have evidence of a quid pro quo. But that quid pro quo still needs to get proven – as far as I know, in states that elect judges (which is a really terrible idea), there are no prohibitions against attorneys donating or assisting judicial candidates, even if they are likely to practice in front of the given judge. Frankly, I don’t see why an attorney writing a $1000 political donation to a judicial candidate she is likely to practice before would be any different from donating 5 hours of her time to campaign for the judge’s election, which no one would dispute as being protected speech. Indeed, I’d wager that in judicial elections, the endorsement of local bar associations, prosecutors, and prominent attorneys is significantly more valuable to a candidate than any money donation ever could hope to be.

        The point is that, while money is not inherently expressive and protected speech, it absolutely can be a necessary part of expressive and protected speech, and prohibiting such uses of money is a very real First Amendment problem. By the same token, to the extent money in politics is improper, it’s not the use of money that is connected with expression, but rather the use of money for non-expressive purposes, ie, quid pro quo purposes.

        There’s an argument to be made that at some point, contributions become large enough that the appearance of corruption is impossible to avoid, and that the appearance of corruption alone – rather than just actual corruption – is appropriate to regulate. That of course is the conclusion in Buckley v. Valeo that is now up for review by SCOTUS, but it’s a conclusion that nonetheless accepts that money is a legitimate and necessary part of protected political speech.

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      • What I would LIKE, is some way for these sorts of contributions (at least the large ones) to be easily (and I mean TRIVIALLY so, like a simple 5-minute web-search) visible, public record* in such a way that voters can clearly see where each candidates’ money is coming from, and vote accordingly (and adjust future voting patterns with the benefit of hindsight).

        Any individual contribution over 200 dollars to a campaign committee for federal office (i.e. Prez, Congress) is recorded by the FEC and available on this site, searchable by the individual’s name.
        http://www.fec.gov/finance/disclosure/norindsea.shtml (and one finds items like this: http://images.nictusa.com/cgi-bin/fecimg/?12950387421)

        One can also find a listing for all individuals under a given candidate, e.g.:
        http://query.nictusa.com/cgi-bin/com_ind/C00385773/

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      • Yes i used what i thought was a completely obvious example to make the point that there times when rights can be limited. I thought it was so obvious that some rights can be limited, that we could move to talk about the specifics of campaign finance reform type stuff. To many discussions of rights get bogged down it treating rights as absolutes when there typically exceptions.

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      • Hmmm, lots of interesting stuff here with some good points. Here in AK we had a bunch of state level pols bribed with crumpled 20’s a rich dude just pulled out of his pocket. So i do agree out right bribes are more likely at the state or local level. It is a fair point about access being the thing money buys and pols will already grant access to people they agree with. If anything that says to me that money is more like getting the foot in the door for a new issue but once you agree with a pol then you are mostly buying him a nice lunch to chat about golf since he is already going agree with you. Jobs after pols get out of congress, on the hand, can be a quite lucrative “bribe” or offer. Plenty of pols use their friends and access to lobby which likely creates many of the nasty appearances we see. Possibly we should limit lobbying by ex-pols, but i’m guessing someone will raise a free speech issue there, although i would think a law could be well crafted enough to get past that.

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      • Greg, sure, those cases were obvious. But they were so obvious that they don’t provide a real step toward discussing campaign contributions. They worked as, “here’s a case where we can obviously restrict someone’s actions because they’re clearly harming some other person, so therefore we can talk about restricting the actions of someone who isn’t noticeably harming some other person.”

        You left too big a gap for it to work. Because nobody disputes that we can restrict certain actions that might generally fall within the scope of a right. What’s at issue is what justifies those restrictions. Well, harming some individual is pretty non-controversial as a justification. But it doesn’t provide any basis for analyzing actions that don’t harm individuals.

        We also have a right to freely exercise our religious beliefs, but I can’t sacrifice virgins to the volcano god. That’s non-controversial, but where does that lead us in terms of analyzing the legitimacy of other religious practices, like tithing, public prayer, religious education? Nowhere, it seems to me.

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      • Burt-yup, as i remember it was one $20 bill that bribed the numb nut who was my former state rep.

        James-Fair enough. I think there a agreement among a lot of people across the political spectrum that money has an overly large influence on our poli system. Per Mark’s response above, money buys access more than votes often. It shouldn’t be a major surprise than that our gov is corporatist and also often disfavors people with little money ie poor people. I think there is a real argument that being shut out of, or at least, having minimal access to the levers of government is a harm. Of course the answer partly is that poor people can elect reps which is true for the House but much less so for the Senate. I think there could be a few things we could do to improve the situation which i’ve noted that don’t entail campaign finance laws.

        I’d like to see complete transparency about donations, far more free tv time for canidates and some sort of increased restrictions on lobbying by ex-pols. Each idea has potential problems, but than so does everything.

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      • I think there is a real argument that being shut out of, or at least, having minimal access to the levers of government is a harm.

        I agree, but it’s not a specific individualized harm. It’s vague and diffuse. We have to be careful about saying the Constitution allows the government to pass laws regulating anything folks like you and me define as some general harm, because then we don’t have actual constitutional limits on our government. We have to agree to limits on government’s authority to address some of our issues if we want to ensure there are still limits on its authority to address issues near and dear to the hearts of thise less well-intended than us.

        Anyway, the history of our campaign finance laws gives us little reason to be optimistic about our ability to resolve this harm. Each new regulation has simply pushed the money flow into new channels. The average net worth of congressmembers increased dramatically even as we attempted to keep money out of politics–that ought to give us pause, and make us question whether we’ve really been on the right track. Ultimately, our campaign finance efforts have born a striking resemblance to our efforts at prohibiting marijuana, from the moralism of the pro-regulation advocates to the abject failure of the policies to accomplish the intended goals, to the claims that we just need to try harder and then surely we can do it.

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      • James– I don’t disagree although i’d say part of the reason campaign finance reforms have been ineffective has been that those against the reforms have made them convoluted and weak. Even diffuse problems need to be looked at. They can be harder to solve but still are present and , by definition, affect a lot of people. I don’t see much happening with the reforms i’d like to see so i’m not really sure what else to look at. I know others have asked but what do you think about how to achieve transparency or if that is even a good goal. Lots of the same folks against CF reform also like to keep their contributions hidden.

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      • Greg,
        I think blaming weaknessses in the law is as meaningful as blaming weaknesses in marijuana laws. You’re not really thinking about the nature if what you’re trying to regulate. When demand for something is so high it is not possible to regulate it away. It’s a pipedream.

        Think about it. You’re running for Congress. You cannot do it effectively without money. The research I’ve seen shows that big campaign war chests deter strong challengers, so if you’re an incumbent you want a big war chest. You’re going to let regulations stop you? Fine, but sooner or later you’ll be replaced by someone who figures out a way around the regulations. Or you’re the challenger. Research shows that if you soend kess than the incumbent you have almost no chance of winning, but if you spend more than the challenger your odds improve to about even. Again, if you let regulations restrict your fundraising you’ll be a loser, while the guy who finds another route to get the money is a winner. Winners replace losers and populate the system–it’s much like evolution.

        Campaign donation limitations led to the rise of PACS and self-funded candidates. Limitations on donations to PACS led to independent issue advocacy. Every time we revised the law, the money found a new conduit, so we had to write yet another law. Money in politics has been likened to water flowing downhill; you cannot stop it, you can only change its channel. Bluntly, thinking that the problem is the law and that we can correct the law and get it right is very unrealistic. Ironically, the orobkem is, in some ways, far worse than you think.

        As to transparency, see my answer to North down at the bottom. In a nutshell, I absolutely refuse to believe that my preferences are necessarily constitutionally authorized, or that things I dislike are necessarily constitutionally prohibited. I think that’s really the main difference between me and about 98% of internet commentators, whether liberal, conservative, or libertarian. That’s my firm line in the sand. I’m like Scalia on flag burning, except much more consistent across a broader range of issues.

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      • – thanks. I will play with it later. Assuming shenanigans (false fronts/concealed identities) are being kept to a minimum, and queries can be run easily to produce useful info (show every contribution to politician X that is > $1000, or whatever) this would seemingly address the biggest fix I can think of (without running too far afoul of other constitutional rights).

        That is, I EXPECT politicians to be bought, to some degree.

        I’d just like to know who’s buying, and what the going rate was.

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      • One of the more subtle points that I’m almost completely ignorant of is the Constitutional arguments for/against anonymous free speech, and anonymous political speech in particular. I understand why some people want it; when word gets around that all of the ads saying that inheritance taxes should be eliminated were funded by the Walton kids, who stand to benefit to the tune of billions of dollars if the laws are changed, the message loses some of its punch. And some people want to be anonymous because their boss would fire them if the authorship of certain blog posts got back to the boss. OTOH, I’ve pretty much always been of a mind that if you’re not willing for it to be attributed to you, then you shouldn’t say it at all.

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      • OTOH, I’ve pretty much always been of a mind that if you’re not willing for it to be attributed to you, then you shouldn’t say it at all.

        I can’t speak to the constitutional arguments, but I find this attitude puzzling. Employers may not be the only entities who wish to do one harm for speaking one’s mind.

        I mentioned good ol’ anonymous Thomas Paine above; Carl Sagan was “Mr. X” when he published an essay extolling the benefits of cannabis.

        The state may wish to punish or harass you; a mob, of either the internet or meatspace variety, might be baying for your head.

        Is the best answer “Well, you shouldn’t’a said THAT”?

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      • I mentioned good ol’ anonymous Thomas Paine above; Carl Sagan was “Mr. X” when he published an essay extolling the benefits of cannabis.

        I grant you Mr. Paine in the process of fomenting a revolution, under a government that didn’t include any promises about freedom of speech (particularly speech advocating treason). That’s different than operating under a constitutional guarantee. Heck, there are all sorts of people advocating secession and armed overthrow these days, and we don’t arrest them (including me writing bits about separation becoming inevitable under my own name). I’m not so sure about Mr. Sagan’s case. He believes in writing about the benefits of cannabis, but not enough to risk what? Loss of scientific reputation (he’s a cosmologist, not a whatever)? Loss of job?

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      • Well, given that it was (is) a crime, he risked losing all those plus his freedom; after all, extolling the benefits implies partaking of the substance. Whether what amounted to a written confession of a crime would have landed him in jail immediately, or just resulted in years of police surveillance and harassment I guess is the question; but neither outcome seems desirable for confessing to an act that many don’t believe should be a crime in the first place.

        This has wider implications; for example, when sodomy laws were on the books and being enforced, a gay man writing about his experience of being gay would be at similar risk. Unless you think we’ve achieved a state of perfection and will never again need to advocate for activities which are not currently legal, anonymous political speech is a potentially indispensable tool in a free society.

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    • I disagree, .

      The government can’t tell me I can’t make a movie called “Obama is a Jerk”, right? I mean, making that movie, creating that art… that is protected, yes? And if I then seek to air that movie during a paid advertising block on a local channel, telling me I can’t still feels like it infringes on my right to speech, my right to present and display my art.

      I also have to assume you are referring to our current rule of law, not what you think the law ought to be, yes? My libertarian side says that people should generally be free to spend their money however they see fit. I assume you would agree with this, but please correct me if I’m wrong.

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      • The government can’t tell you you can’t make that movie, they can’t stop you from showing it, and they can’t stop people from seeing it. But they can regulate how much you spend on making it, and how much people pay to see it.

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      • isn’t Kazzy’s scenario pretty much the exact one in Citizen’s United, and found in favor of the producers (and their backers)?

        (like Glyph, I think you’re going for the absurdum – but it’s not absurdum in this hypothetical, it’s how things actually have been found)

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      • So if I want to make a movie called “Jupiter Joe is a Jerk”, a complete work of fiction, I can hire George Clooney at $20M. But if I want to make a documentary called “Obama is a Jerk” and want it narrated by Clooney, I need him to work for less than that if the government decides as such?

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      • First, can you clarify for me if you are arguing how you think the world ought to work -or- how the Constitution has traditionally and/or currently be interpreted?

        I can’t speak much to the latter as I’m not a Constitutional scholar. I tend to take a fairly literalist approach to the Bill of Rights. So when I see that “Congress shall make no law…abridging the freedom of speech,” I tend to think that it means just that: any laws which limit people ability to express themselves are unconstitutional.

        But if we pull back to a conversation about how things ought to be, in a world in which the US Constitution does not exist, I generally support people’s ability to spend their money as they see fit.

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      • The weasel in this woodpile is the notion that Congress delegate all the Tough Decisions to SCOTUS. Congress have become a Parliament of Whores, to use PJ O’Rourke’s epithet. They could decide, as could every prostitute, to either be their own sex workers, or continue serving the vicious pimps who currently write about eighty percent of their bills.

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      • They could decide, as could every prostitute, to either be their own sex workers, or continue serving the vicious pimps who currently write about eighty percent of their bills.

        That relies on a static view of Congress, rather than a dynamic view which takes into account elections, challengers, and subsequent sessions of Congress.

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      • A static view? Or a viewpoint which encompasses certain constants in American politics? Among those constants are greed, venality, short-sightedness, partisanship, pettiness of every description — James, James — this is a government which is currently shut down over an issue already decided by the courts. Madison engineered conflict into the process. Now it has reached its logical terminus and these bastards stand glaring at each other like King John and the barons at Runnymede.

        Congress cannot be reformed. It can only reform itself. It will not and has no particularly good reason to do so. It serves its own ends and always will. Currently, there is no advantage to cleaning up this stinking mess. Any semblance of representative government has long since been surgically removed and flung downwind. We are ruled by a moneyed class and Congress are its whores.

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      • Static view: What Congess can–has the authority–to do at this moment.

        Dynamic view: Congress cannot statutorily or by rule bind future Congresses; Any congressional rule that puts current Congressmembers at an electoral disadvantage is self-defeating because they will be, over a sequence of elections, be replaced by those who do not share, accept, or abide by, that disadvantage.

        So, no, Congress can’t stop pimping itself out, because the members who do will be replaced by electoral challengers who are quite willing to pimp themselves out.

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    • Even though I am against Citizens United, could you make an argument about money being”communicative conduct?”

      Supposed we lived in a world where it was perfectly legal to make pornography and view and own pornography but it wasn’t legal to purchase pornography because of the money issue above. That seems strange to me. How can it be legal to make and own a product but not purchase it on the market?

      People in a sense are speaking with their money and how they choose to spend it. What they value or want in terms of debate, etc.

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    • Even if we concede arguendo that much campaign finance regulation is dangerously close to unconstitutionally impeding political speech, surely we can all agree that the current campaign finance landscape is dominated to an obscene degree by wealthy interests, and that further enhancing the ability of rich people to dominate the political conversation is unlikely to be a healthy development for our democracy. If only there were some clearly constitutional way to regulate campaign finance.

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      • Dan,

        Something I didn’t understand about the liberal response to Citizen United was that it completely glossed over the fact that it empowered individuals to band together and potentially compete with the big boys. My $1000 donation won’t mean much when compared to what the Koch brothers can do. But if me and 1000 of my ideological partners get together? Well, now maybe we can make change. And if we get 10,000 or 100,000? Egads, we’d be powerful! CU allows that.

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      • That possibility existed before CU, actually–even under the pre-CU regime, there was nothing stopping you from organizing a fundraiser, getting a few hundred of your closest friends together, and all donating $1000 each to your candidate of choice. What CU did was more pernicious–it said that you, Kazzy, could donate unlimited funds to a corporate entity which would spend those on behalf of a candidate (Burt or others, please correct me if I’m mistaken here). You couldn’t donate unlimited cash directly to a candidate’s campaign, but you could spend it on airtime to run ads for him or against his opponent.

        The barrier standing in the way of you and 1000 of your friends was never legal–it’s just that it’s tough to coordinate a lot of people and get all of them to donate. If you’re Charles Koch, it’s much easier to write a million-dollar check than to get 1000 friends to donate $1000 each.

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      • My view of the problem says it’s rather like Bill Gates and the Frog. Bill Gates goes to the doctor with a frog on his head. Doctor asks “What’s going on here?” The frog replies, “It started out as a wart on my ass.”

        The 501(c)(4) was never set up to be a political bagman but that’s what it’s become. Any civic organisation may donate money to some political end — but when it’s more about Donating than Civic-ing, I have a problem with it. Congress could correct all this in a heartbeat, changing the nature of the 501(c)(4) incorporation, forcing most of them back into 501(c)(3) incorporations. It won’t, of course. Too much money on the line.

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    • For that matter money isn’t abortions, so when a future Republican administration makes it illegal to spend any money on abortions, or the necessary inputs to abortions, no one will be able to complain that that’s restricting the right to an abortion.

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      • I think people would be a lot more receptive to libertarians’ free-speech concerns about campaign finance if they showed any interest whatsoever in decreasing the excessive influence the wealthy have on our government (and no, bromides about reducing the scope of government don’t count).

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      • Lord knows I’ve said a freight car full of evil things about the Libertarians. But on this, they’re on the side of the angels. Congress could change this and it won’t. It’s the only entity mandated to make laws which could clean up this mess. The President can propose them, SCOTUS can rule on them. But in the case of the First Amendment, the Liberals and the Libertarians will always find common cause.

        The wealthy will always have influence in any society. The lawmakers must decide if they will be honest whores or grovel before pimps.

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      • No, I don’t think any such thing. I’m pointing out a deficiency in certain Liberal arguments, the usual nonsense in which good intentions lead to bad results.

        You still haven’t clarified if you were Just Kidding about Money not being Speech. It damned well translates to speech.

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      • The problem is, I see very little possibility that disclosure will do much to affect anything. It certainly won’t enhance the power of those who can’t throw around six-figure donations. If you’re honestly worried about the free-speech implications of efforts to restrict campaign money, then the best way to avoid that damage is to figure out why people are worried about large donations, and allay that concern without harming the First Amendment. Disclosure on its own isn’t enough–there needs to be some way to ensure that the non-wealthy have more of a voice in the political realm, because right now they’re (we’re) getting crushed.

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      • Dan – first, somehow I missed your guest post last year on this topic, but I think those are some interesting ideas well worth exploring.

        That said, I’m not at all certain about this, at least not when it’s placed in an historical context:

        Disclosure on its own isn’t enough–there needs to be some way to ensure that the non-wealthy have more of a voice in the political realm, because right now they’re (we’re) getting crushed.

        I realize that this goes against narrative, and it’s definitely something that is horrible for the country, but right now it can’t be ignored that the single most powerful interest group on Capitol Hill is the Tea Party. Despite all the talk about how the Tea Party is funded by the Koch Brothers (whose influence on the movement is overstated, but that’s another topic altogether), the reality is that the Tea Party’s influence and power – for better or worse – comes from its large number of extraordinarily active and vocal supporters. The big money in the Republican Party for the most part is on the side of the Chris Christie/John McCain types right now. The Chamber of Commerce, for example, is as vehemently opposed to the shutdown and threatened default as most liberal groups, to the point that it’s throwing all of its weight behind Republicans who are willing to buck the Tea Party line and pass a clean CR and debt ceiling hike. http://www.smartplanet.com/blog/bulletin/us-chamber-of-commerce-backs-republicans-who-oppose-shutdown/31422

        Despite this, it’s the Tea Party that is calling the shots, and the big money interests in the GOP have largely been neutered.

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      • The Chamber is starting now to oppose the shutdown and debt ceiling fight; we’ll see how long the GOP keeps it going, but I’m unwilling to say that the shutdown is an entirely populist-driven phenomenon. Already, there’s talk of a deal that would include things like entitlement reform, including using chained CPI in Social Security, which business groups support heartily. Until I get a lot more evidence to the contrary, I’m sticking with my current thesis that business-friendly and wealth-friendly policies have an iron grip on the GOP and a solid grip on politics as a whole.

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      • They’ve actually been fighting against the shutdown for awhile. The promise of campaign support against conservative challengers for those who vote to overturn the shutdown is a sign of desperation that the party isn’t listening to them.

        While those items are generally things that big business supports, it can’t be ignored that the Chamber’s been urging the Republicans to take those items on only after they pass a clean CR and debt ceiling hike: http://abcnews.go.com/Politics/wireStory/gop-heeding-big-business-allies-20440642?page=2

        Keep in mind, those are also things that conservatives overwhelmingly support; the shift towards pushing for those items is likely more just a recognition that the Dems just aren’t going to give in on the demand to defund or delay Obamacare.

        I’d actually argue that one of the primary effects of Citizens United was to decrease the influence of large corporations on Capitol Hill because it eliminates a barrier to entry into electioneering (that of forcing independent expenditures through heavily regulated PACs that only large businesses could afford to form); indeed, this was a point I emphasized right after the decision came out: https://ordinary-times.com/blog/2010/01/22/no-fear-of-citizens

        Large corporations always had an outsized influence on the process for a variety of reasons, but amongst those reasons is their willingness to spread money around on both sides of the aisle, which is closely related to the fact that their only real interest is their bottom line, and their superior expertise on the relevant subject matter. They needed only throw a fairly small amount at a given Congressperson or hire a mid-level ex-Congressional staffer, and voila! – access without anyone (especially on the GOP side) offering opposition. Yes, the cost of that access was a business expense, but it wasn’t an overly large business expense.

        But now? They’ve got to compete for access with well-funded ideological groups that are able to directly tap into voter passions on a broad range of issues, sometimes including issues that put those passions directly in opposition to the interests of big business.

        Large public multi-nationals usually can’t fund those types of groups – not because of election laws so much as because it’s pretty hard to justify to shareholders why you’re all of a sudden spending millions of dollars electioneering on abortion, much less things that could directly harm your company’s bottom line, like government shutdowns. The costs of access have increased dramatically for corporations, but in some regards have actually fallen for individuals, or at least ideologically orthodox individuals, who can now have someone representing their interests on Capitol Hill on just about every issue as long as any one of that group is willing to spend big bucks to mobilize your group.

        Koch Industries, lest we forget, is a closely-held corporation, making it a rarity among large corporations, and thus doesn’t need to answer to shareholders; Sheldon Adelson is an individual, as are the Koch brothers themselves.

        If Citizen United had brought about an increased corporate influence on Capitol Hill, we’d expect to see an accelerated increase in the amount spent on lobbying on Capitol Hill, as corporate interests gained even greater access to politicians due to the increased amount spent on electioneering. Instead, the reverse is actually true – for the first time ever, both the number of lobbyists and the amount spent on lobbying has actually been on the decline every year since Citizens United came out:

        http://www.opensecrets.org/lobby/

        This despite the fact that the economy has actually been improving during that period.

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      • Even if Citizens United takes power away from large corporations, but grants power to individual billionaires, I wouldn’t necessarily see that as reason to be less concerned about the power of money in politics. It certainly hasn’t enhanced the power of small donors to nearly the same degree as it has the Kochs and Soroses of the world. If before, the poor and middle class were getting swamped by Boeing, and now they’re getting swamped by Sheldon Adelson, they’re still getting drowned out.

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      • It’s not so much that it grants power to individual billionaires as it grants power to populist movements that count someone with a lot of money amongst their supporters. The power it grants is to independent expenditures, not direct donations. While these expenditures are often “independent” in name only, their lack of directness and the fact that they are often bundled together with contributions from smaller donors means that the money’s power comes as much or more from its perceived ability to directly mobilize voters than it does from the direct access to politicians that it provides. By comparison, the power of money pre-Citizens United stemmed from the direct help it provided the politician or the party to craft his or its own message.

        The poor and middle class are still not able to directly access the halls of power, I agree. Unfortunately, I cannot think of any scenario in which that would change – even under your proposal, which I think is a damn sight better than any other suggestion I’ve seen, you’re still not going to be able to meaningfully restrict independent expenditures.

        But the independent expenditures create a heavy influence for a sort of politically oriented philanthropy representing the desires of millions of actual voters (even if we might find the “philanthropic” goals of an Adelson to be offensive to us) that did not previously exist, and which is now able to compete for access with the narrow interests that have dominated the inside game for a very long time.

        That is not to say that money in politics is no longer a problem; just that in a nation of 350 million people with only 535 members of Congress and 1 President, access is always going to be extraordinarily limited and federal-level politicians are thus only going to distribute that access to either people they know well and trust (ie, longtime cronies) or individuals or organizations who can help their campaigns in a meaningful manner.

        Think about it this way – in the past, if you wanted to electioneer, your only choices were a traditional PAC, a leadership PAC, or a direct donation to a candidate or party. Donations were limited to $5000 annually to PACs, around $2000 to individual candidates, and post-McCain-Feingold, $32,000 to a party committee, with a cap on your total donations in a given year.* However, corporations and unions could cover as much as they wished to cover the administrative costs of running a PAC; ideological PACs had to cover these expenses from their regular donations.

        It also wasn’t exactly difficult to funnel corporate donations to corporate PACs through executives, employees and members. And again, the goal for corporations and unions was to spend just enough to get the access they needed to send a lobbyist to a given politician.

        And here’s the other thing – there’s always going to be a limited number of people capable of donating to political causes at all; because of the cap on total individual contributions, the amount funneled through individuals to corporate PACs further reduces the amount those individuals can contribute to ideological PACs with broader missions. Further, those ideological PACs were competing against each other for limited resources, which meant that few individual ideological PACs were going to be able to mount sustained independent expenditure campaigns.

        Last but not least – and here I can’t find any relevant data, but it’s a logical conclusion – ideological PACs are likely to have extraordinarily high administrative expenses in comparison to business or union PACs, as they need to spend a pretty good chunk of change on marketing that business/union PACs do not – they need to identify and buy mailing lists, they need to create and mail donation requests, and potentially need to pay for the operation of phone banks. I’d wager that for ideological PACs close to 50% of their donations went to paying administrative expenses, whereas for corporate PACs, exactly 0% of donations went to paying administrative expenses.

        Removing the restrictions on donation size eliminates the effects of those sizable handicaps for ideological groups, as just one donation can cover all of the administrative costs now.

        Bottom line – narrow corporate interests have to compete with broad ideological interests in a way that was not previously the case.

        Unfortunately, this doesn’t do anything to increase the voice of the poor. But it doesn’t decrease that voice either, if only because it’s difficult to decrease something that’s already close to non-existent.

        That said, it occurred to me that one way to increase the voice of the poor and middle classes would be to significantly increase the size of Congress. As I said, the central part of the problem is highly limited access, which leaves space only for political cronies and high value donors.** Reduce the direct amount of money in the system without increasing access, and you’ll increase the influence of cronies or create indirect access markets in which cronies sell off their access to the highest bidder, or both. Since we can’t change the amount of time available to provide access for any given politician, the only way to increase systemic access is to increase the number of politicians who can provide meaningful access.

        Our Congress is absurdly small – one member of the House for every 710,000 people. By comparison, the House of Commons has 620 members, amounting to one MP for every 100,000 Britons. In other words, the average American has about 1/7 the amount of access to their member of Congress as the average Briton has to their MP. Canada has roughly the same ratio the UK, as does Australia. Ditto France, which is somewhat more comparable to the US in that it has a strong, separately elected Presidency, yet has 577 deputies in a population of 63,000,000.

        Notably, a century ago, the size of the average US Congressional District was right around that 100,000 mark as well. We probably should at least double the size of the House.

        *There was also the possibility of doing a bunch of issue ads, which are a different animal in that there’s really no way to define them in a way that doesn’t raise massive free speech concerns; it should probably also be noted that the most infamous “issue ads,” ie the Swift Boat ads, were ultimately found to have been anything but and thus the massive donations they received were found to be illegal. The deterrent effect of those findings was close to zero, as they got only a $300,000 fine.

        **One other way in which campaign finance restrictions may undermine democracy, particularly when combined with a relatively small legislature – as constituencies grow, campaigns become more expensive; donation limits thus force politicians to spend increasing amounts of time raising the minimum amounts of money needed to fund a campaign, thereby reducing the amount of time available to provide access to all but those who can afford to donate the maximum or who are close political cronies.

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    • If money is merely a form of expression, then me paying my lawmaker to give me preferential information on bidding for a public works project is just me expressing my friendship and appreciation to the lawmaker in question, right?

      Or say I pay a local health inspector some money as a contribution while they’re examining my restaurant. Just expression of my right to free speech.

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      • Finding the line between direct bribery and just earning someone’s attention is admittedly not easy. But as any law impinging on constitutionally protected rights must be narrowly tailored and not overbroad, I think the burden of proof is on your end.

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      • In some sense I think the wrong way to look at contribution limits is as a limitation on the ability for someone to spend money. Rather in most cases, I think the restriction ought to be on what people can accept money.

        That is to say, when you become a public official of some sort (or declare yourself a candidate for such) you forego the ability to receive money from third parties. It’d be a bit like putting yourself under military justice jurisdiction (where the UCMJ has lower standards than civilian courts for a bunch of things) and the like.

        That is to say, I don’t think there’s a problem with people giving money to whoever they want or trying to. I do have a problem with public officials taking money.

        The problem with that line of thinking of course is that the multiple loopholes existing both in general campaign funds and personal leadership PACs makes it nearly impossible to restrict personal use of contributions anyway.

        That is to say, perhaps we should simply work on restricting enacting huge criminal penalties for misusing campaign funds and close the personal leadership PAC loophole.

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      • No, what Nob is really glossing over is that his examples of money are using money to buy a result. As much as popular lore has it that corporate money buys politicians, it’s really not at all that direct. For one thing, most money goes to those pols who actually share the donors’ interest–does anyone really think the Kochs’ are buying the votes of liberals in Congress? Does anyone think the votes of non-liberals on their issues need to be bought? Mostly they’re trying to ensure that their preferred candidates, those who share their interests, get elected. The same as I do when I slap a bumper sticker on my car (were I the type to do so).

        What money does buy is access, an opportunity to get the legislator’s attention. But in that case is it bribery by the giver or extortion by the receiver? The big doners have to give if they want a legislator’s time.

        And when we’re talking third-party advocacy this is particularly true. If big-money-guy runs independent advertising calling Obama a socialist and supporting the election of good god-fearing gun-loving baby-saving patriots, he’s not engaging in a direct quid pro quo, but doing a more effective job of helping his preferred candidates win election than you are. Well, maybe. It turns out that just having big donors run lots of issue ads in your favor doesn’t do much to guarantee victory, especially when it has the affect of making the median voter feel like there’s something fishy going on.

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      • Nob,
        So a challenger is unrestricted, but the incumbent isn’t?

        I’m not sure that’s really wise, but it’s certainly a damn sight better than any type of donation/spending limits, which all serve to enhance the power of the incumbent.

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        • No, I did say “when you become a candidate for office” didn’t I?

          That said, my main point of contention on money in politics is the amount of access and noise it tends to buy, not that too much of it is being spent. I’m much more sanguine about things like third party issue ad buys and productions than I am of contributions directly to candidates or incumbents or for that matter, access to congressional offices.

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        • Basically, if the person is on a ballot, then the restrictions on receiving stuff kick in.

          If there’s any leftover money, then they can’t just give it to their own personal PACs or “charities”. Hell maybe that stuff can go into a general campaign fund for public financing of challenger candidates. Just something other than the loophole riddled quasi-bribery system we’ve got going now.

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      • Nob,

        Sorry, I focused on the “public official” line.

        So your proposal is ultimately another incumbent protection plan?

        And the Supreme Court has already ruled that the Constitution doesn’t allow limits on self-financing, so this would tilt the playing field in favor of the rich.

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        • I don’t think it’s much of an incumbent protection plan. Self-financing campaigns is also fine by me.

          But to put a point on it, I think all unspent campaign funds should at the end of an election cycle go to a general public financing fund, from which a minimum amount of money for challengers (and challengers only) can be given out. Given that fundraising advantage is one of the greatest advantages of incumbency, giving challengers say a minimum of $15,000 campaign funds or a quarter of the previous winner’s campaign fund balance (whichever is higher obviously) as seed money for their campaigns out of a general fund would probably help tail off incumbency advantages.

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      • I’m much more sanguine about things like third party issue ad buys and productions than I am of contributions directly to candidates or incumbents or for that matter, access to congressional offices.

        Nob, I’m totally with you this point. But you haven’t demonstrated that the difference rises to the constitutional level.

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        • Giving directly to candidates or their offices introduces the element of it being a two-person transaction, rather than one person simply expressing their view. In which case there’s now a recipient of your money not just you spending it. (To be pedantic, yes, when you spend it on ad buys, etc. you’re still giving it to someone, so that’s a bit of a hole.)

          My point generally is that we should look at money in politics through a “Who Receives” not a “Who Gives” perspective. Finding a constitutional justification for that is going to be trickier, I guess because of the whole freedom of assembly thing.

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      • Nob,

        For challengers, the first thing money buys is name recognition. Incumbents don’t have to spend on that. So anything that levels the playing field–that inhibits challengers from outspending incumbents–is an incumbent protection scheme.

        It doesn’t really matter whether you have a problem with self-funded campaigns. The issue is that your plan would restrict the person who received donations while not restricting the self-funded person. How do you justify giving an extra boost to the person who can afford to self-fund?

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        • Is it a boost to the person who can self-fund or simply just not giving a boost to the person who can’t?

          In the latter case, how different is that from arguing that people who are born into wealth have built in advantages and more opportunities that people who don’t have wealth don’t have? And in that case, doesn’t this give us an equality of opportunity problem, which would then essentially be described as “well, too bad, we can’t all be born rich”. Or how it’s not our place to subsidize people who aren’t rich enough to afford xyz.

          As it is, even with fundraising, people who run for office are overwhelmingly worth more than the national average. Running for office is expensive even when someone else foots most of the bills. Expensive in time, in opportunity costs, and other things.

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      • Ahhh, but Nob…

        If there’s no public works project and there’s no government health inspector, there’s nothing worth buying. Sure, it SOUNDS a lot like throwing out the baby with the bath water to many of us. But for others, the corrupting influence of money in politics provides a pretty good excuse for gutting those things that offend one’s ideological sensibilities.

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      • It turns out that just having big donors run lots of issue ads in your favor doesn’t do much to guarantee victory, especially when it has the affect of making the median voter feel like there’s something fishy going on.

        Ah, the old Just Kidding argument again. With the Average Joe fallacy tucked in for good measure, a nice little rhetorical lagniappe for good measure.

        Advertising works. Negative advertising works particularly well. Fear sells. Stupid sells. Simple arguments might always be wrong but nobody ever won an election by telling the whole truth. But you are right about the Average Joe believing something fishy is going on. Matt Drudge will get a lot more hits today with his falsetto shrieking and running around in little circles, flapping his hands at the wrists — than anything written round here. People just love that shit. Motivates the faithful.

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      • Is it a boost to the person who can self-fund or simply just not giving a boost to the person who can’t?

        Handicapping my opponent gives me an edge. You can’t disentangle those that easily.

        I can’t respond to the rest. I don’t follow where you’re going, except that you seem to be saying we’re not going to help the less fortunate, which I’m having difficulty as seeing as any kind of justification for your plan to assist the more fortunate.

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        • Perhaps I was being a bit too oblique. Does preventing the less fortunate from getting an opportunity that the more fortunate have equate to handicapping or simply a lack of subsidy? Would a difference in access to resources create an assist on the fortunate or simply not helping the less fortunate?

          Is removing opportunity differences an important part of running for public office? Does the size of your social circle or the general wealth level of those people also impact your access to resources? Do we handicap middle class people from politics because they won’t have access to 100 mega donors who can chip in $10,000 a piece and instead has to raise it from 10,000 $100 donations?

          How is my plan different from allowing the wealthy from having a proportionally greater impact through removing campaign contribution limits in that it favors the fortunate? Is it different in that it’ll assist the more fortunate?

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      • Blaise,

        Fortunately, I never said advertising doesn’t work, did I? All I really said was what anyone in the ad business will tell you: just because advertising works does not mean all ads works. And ads can only get people to try a product, they can’t keep people buying a product they don’t like. Candidates are products in the same way.

        We don’t really disagree on this. Everything you’ve ever said assures me that we are actually in perfect agreement.

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      • Facts never take sides. You did sorta imply people would take a cynical view of all this political advertising — and there’s no denying some of that is true. But it’s rather like the madness of the Cold War, building all these nightmare weapons and delivery systems — to fight an enemy who was always more afraid of us than we were of them. All the USSR had to do was wait for us to develop some new super-duper weapon — and they’d build the antidote for it.

        Case in point, the MiG 25 Foxbat. The USA had built supersonic bombers, so the USSR built this gigantic hunk of steel capable of getting up there and shooting them down. Basically a big old manned missile launcher.

        America is constantly overestimating threats. Facts don’t take sides. The GOP and the Democrats have been throwing feces at each other, making the most scurrilous and preposterous charges — yes, you’re right. None of it is believed by thoughtful people. But advertising works by impression counts. People do remember things, the do soak in, very much against our will. Well, now the worst has come to pass. We’re at the edge of the abyss, politically. Nobody’s talking and nobody has the good sense to realise, as with you and me, that facts don’t take sides, regardless of opinions or political orientation.

        Congress needs to pull up its socks and behave itself as do respectable opponents. It would start by mutually agreeing to liberate themselves from these gorilla pimps. First step to get back any respect is to get back your own self-respect.

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      • Does preventing the less fortunate from getting an opportunity that the more fortunate have equate to handicapping or simply a lack of subsidy?

        Lack of subsidy. You’re not doing anything to them; you’re not doing anything for them.

        But in your scheme, not only were you not providing them a subsidy, you were further handicapping them by limiting them from achieving as much as they could.

        Sometimes in sports we handicap to equalize the competition. Horses have to carry extra weight based on past good performance, golfers get to shave a few points off their score, etc. We don’t have to do that–we don’t go all Harrison Bergeron on the Oregon Ducks, for example, loading them down with weights and putting electronic buzzers in their ears, so that the Washington Huskies of the world have a fighting change. We just say, “you’re on your own, and if you’re not competitive, that’s your problem.”

        But your plan went beyond leaving them alone. You put the weight on the Washington Huskies, while leaving the Ducks unencumbered. Your plan was, “Well, we know you can’t raise as much money as that guy can just pull out of his own wallet, but we’re going to limit how much you can spend while not limiting him. You thought you were going into this campaign with a financial disadvantage of n, well in fact we’re going to ensure you have a financial disadvantage of nx.

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        • So basically it’s okay if the super rich have an advantage in politics, so long as they can all have it at the expense of all the plebes?

          And let’s note my plan was to put the weight on both of them. Even self-financing campaigns raise plenty of money from outside donors, usually to a pretty big extent.

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      • “Nob,
        So a challenger is unrestricted, but the incumbent isn’t?”

        Independent of the specifics of this sub-thread, I don’t have a problem at all with such an asymmetry. Incumbency at any level has huge intrinsic advantages, both obvious and subtle; tilting the field against them in a particular area doesn’t bother me in the least – in fact, I welcome it.

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      • Nob, I’m about to stop being nice. No, we’re not just talking about the super-rich, and I’m irritated at your purposely misleading terminology. You don’t have to be super-rich to run for or even to win a congressional seat, even if the average congressmember is much wealthier than the average citizen. I’m surprised to find you committing the ecological fallacy. My own congressman, much as I despise him, is far from super-rich. Here you can see the most and least wealthy congressmembers. Super-rich does not apply equally well to all.

        And self-funded candidates tend to be much wealthier than non-self-funded candidates. We’re not talking about those who donate just something to their own campaign, but those who can spend millions of their own money. The Meg Whitmans and so on. Because if we’re talking about candidates if the same net worth the whole conversation becomes entirely meaningless.

        Even if you limit how much donated money each can spend, the self-funded candidate’s self-spending is all above and beyond that limit. The only opportunity to catch up is for the non-self-funded candidate to get even more donations, but you have foreclosed that by saying they wouldn’t be allowed to spend it.

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      • Even if you limit how much donated money each can spend, the self-funded candidate’s self-spending is all above and beyond that limit. The only opportunity to catch up is for the non-self-funded candidate to get even more donations, but you have foreclosed that by saying they wouldn’t be allowed to spend it.

        You missed the point of my response, the point being that non-self funded candidates would be using other super-rich people’s money to fund their campaigns, and so the distinction between having a donation limit with no self-funding limit is that only the super rich who fund themselves get to play as opposed to a donation with no campaign contribution limits environment in which case the super-rich still play more than everyone else because they have more bankrolling power regardless of whether they’re self or non-self financing.

        As in a world with uncapped campaign contributions would put people whose major supporters aren’t super wealthy at a decided disadvantage from the word go. This is particularly true in a challenger situation given the fact that beating an incumbent requires at least equalling them in campaign expenditures.

        I do think that there’s a point where the size of a contribution accepted by an elected official rises to the level of a bribe. Is it as low as it is now? Maybe not. But someone who gets a multi-million dollar donation from a private party isn’t going to be primarily about doing service for constituents even if they make the right noises about it.

        Also, you keep ignoring the fact that I’m not talking about restricting campaign donation amounts in any meaningful sense, but my solution is calling for the following:
        1. Requiring that all campaign funds be used for nothing but campaigning and enacting stiffer penalties for misuse of campaign penalties.
        2. Closing/removing the personal leadership PAC loophole.
        3. Having all remaining campaign funds after an election cycle be placed in a general fund to provide a minimum of public campaign funding for challengers in the next cycle.

        I fail to see how this would be an incumbency advantage in any sense, and all 3 points are stuff I said in previous replies. You’re the one who keeps assuming that I’m talking about foreclosing the possibility of receiving any funds whatsoever.

        I would much rather have campaign donations be funnelled into inflexible campaign funds and issue advocacy funds rather than the murky half-collection of personal PACs and other “grey” funds as they exist now.

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      • So to clarify one last time:
        I don’t think we should restrict how much people can give to a candidate.

        I do very much like having restrictions (very strict ones) on what a candidate can do with said money once it’s received.

        That includes limiting their ability to stockpile a warchest (requiring fresh funds each cycle) to forcing them to only be able to receive funds into their campaign coffers and not PACs that are in their name.

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      • Well, Nob, first you said this.
        That is to say, when you become a public official of some sort (or declare yourself a candidate for such) you forego the ability to receive money from third parties.

        Now you say,
        I don’t think we should restrict how much people can give to a candidate.

        So I guess your plan us that we can give as much as we want, but candidates can’t receive? Or the “third parties” are PACs? I just don’t follow you.

        I do think that there’s a point where the size of a contribution accepted by an elected official rises to the level of a bribe.
        Sure, but that’s not really the question, is it? Bribes can be banned, but you have to be able to demonstrate that it’s a bribe. Give me some reliable method for determining what amount counts as a bribe and we’ll talk.

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      • I’m sorta with James on this. Not entirely, mind, but leaning pretty heavily.

        His view of this issue – my take on it, anyway – is that the constitution governs legality (not there are other – so called “moral” – issues involved!) and that market forces determine the rest. Which seems like a clear, bright line. He’s admitted that money in politics is a problem. But the clear bright line remains.

        Is the cost of obstructing influence worth the price of restricting speech? I think agree with him that it isn’t.

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    • Is this only about Citizens United? Or are you trying to make a statement about the upcoming case, as well?

      Because “preventing me from spending money on my speech is an infringement on my first amendment rights” seems to be a different proposition than “preventing me from giving money to someone is an infringement on my first amendment rights”.

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      • It’s about the consequence of the logic of the “money isn’t speech” claim.

        Yes, exactly. Fnord’s point is entirely correct. It’s the intermingling of the two that muddies up the waters.

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      • 1. I buy an ad that says “Vote for Stillwater.”

        2. I give you money so you can buy an ad that says “Vote for Stillwater.”

        3. I give RockiesPAC money so theu can buy an ad that says “Vote for Stillwater.”

        Which of these is not an amplification of my voice?

        Or the campaign buys “Vote Stillwater” yard signs, or can afford a phone bank that calls people to say “Vote Stillwater,” or buys bumper stickers…. Or maybe my check just helps pay the electric bill, but they need power to send those messages, and anyway money is fungible, so by paying the electric bill I enable spending more on the message.

        If my money helps a campaign more effectively promulgate a message I want promulgated, my money is enabling my voice, no?

        I’m not intermingling the two–they are inherently intermingled, and I am simply not making the error of denying that fact.

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      • This is amazing!
        I say ” It’s the intermingling of the two that muddies up the waters.” suggesting that the two concepts are, in fact, intermingled.

        James replies, caustically, with “I’m not intermingling the two–they are inherently intermingled.”

        Which confirms my point. We don’t agree. We can’t agree. We’re mortal enemies in a bog war.

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      • And to perhaps escalate the nascent Stillwater-James/Roger/libertarian wars, I’m very frequently surprised by how little intelligence you (and Roger, Jaybird, others) attribute to your interlocutors. It often seems to me like ya’ll think you’re doing us a favor by educating us. Not just disagreeing with us.

        It’s amazing to witness. Especially being on the receiving end of it. That I can say with complete certainty.

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      • Oh I know a bad sermon when I hear one. My old man knew Billy Graham very well. For quite a while, my old man was head of the Billy Graham telephone ministry in Wheaton IL. Anyway, Billy Graham told the story and my old man told it to me.

        This was early on in Billy Graham’s career. Rev. Graham was going from town to town, preaching. He wanted to mail a letter and asked a small boy for directions to the post office. The boy gave him directions.

        “And if you’d like, you could come to church tonight so I could tell you how to get to Heaven” said Rev. Graham.

        “Oh I don’t think so. You don’t even know your way to the post office, mister.”

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      • “It often seems to me like ya’ll think you’re doing us a favor by educating us. Not just disagreeing with us.”

        To generalize, I believe much of what classical liberals such as Adam Smith and Hayek “preach” is extremely counterintuitive. As such a major portion of my comments are addressed not at disagreeing, but pointing out the problems with widespread intuitions.

        99 out of a hundred Americans are still mercantilists. Most educated people still find decentralized problem solving as some strange form of magical thinking. Most Americans still intuitively reject evolutionary design not just in biology, but in institutions. And so on.

        In other words, the point of disagreement between a classical liberal such as myself and those on the left and right is that I believe in some fundamental building blocks which are extremely counterintuitive and outside their operational paradigm. They are in no way widely shared, and they could be wrong. I am aware of this.

        As such, any disagreement hinges upon these foundations. They are the heart of the disagreement, and the way to change my mind is to reveal how these assumptions are wrong. Hence the frustrating nature of the conversation….

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      • the problem here (and this is why I often question you, I intuit that you and I hold some similar values and goals,) is that your assumptions are yours; it’s unclear to others what they are, the seem to shift on some points, and so it’s really unclear what you’re arguments are.

        On the health insurance thread, you offer ‘opt out,’ but this is not truly opting out, it means there’s some base-line coverage in there, but nobody discussing this with you understands that until you’re pressed; we take you at your word that you actually mean opt-out, when in reality, you mean some government-provided stuff that you don’t necessarily want to call government provided.

        I actually really value your thoughts on many topics we discuss here; you’re not afraid to think outside the box, you have some really valuable insights into how human nature actually applies pressure to systems, and you do seem to care about those marginalized in many ways. Not only that, but it concerns me that much of the conversation people have with you is often fraught with misunderstanding. I don’t try to play ‘gotcha’ with you; but I do question the way you present things, and I suspect it’s because they’re a presentation built on your carefully-thought-out assumptions, and I’m never quite sure what those assumptions are; it’s as if we’re talking about an alternative reality, where things are almost like they are, but not quite. But I freely admit, that’s probably true, to some degree, with all conversation for we create our own realities in our own little minds.

        Please forgive if this feels critical; I mean it as constructive criticism; and I know most people don’t relish the criticism part of that, so never get around to appreciating the value of constructive. I do not know which type of person you are.

        /and I really dislike the conversations the degenerate to who said what how; but sometimes it’s worth it to wade in and venture some bridge building.

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      • the point of disagreement between a classical liberal such as myself and those on the left and right is that I believe in some fundamental building blocks which are extremely counterintuitive and outside their operational paradigm

        This. It’s not that I think y’all are stupid. It’s just that I think many of you have been poorly educated on the particular topic. Unfortunately, most people are. Which is a shame, because despite being counter-intuitive, most of these concepts aren’t rocket science, they’re just discomfitting.

        Maybe I should submit a guest post that’s just a list of concepts people should know about politics and government. No commentary by me, just links to explanations. If y’all read and learned them, which seriously wouldn’t be that hard, you’d damn near be qualified to replace me at my day job.

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      • sometimes it’s worth it to wade in and venture some bridge building.

        Bridge building is slow tedious work and the damn things need perpetual mantenance. Bridge burning is quick work and much more spectacular.

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      • : Why not write up something of substance about John Stuart Mill? It’s all in the public domain now, I think. I once did a guerrilla course on JSMill for a bunch of Tea Partiers, teaching them they were really Classical Liberals — they just didn’t know it yet. On Liberty, especially.

        Classical Liberalism is a good starting point for anyone, politically. And for every practical purpose, its tenets have guided the American political system since its inception. It’s by no means a complete political philosophy but I don’t believe JSMill can be improved upon as a springboard into the topic. To criticise (or defend) JS Mill is to rephrase a hundred stupid debates in far better terms.

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      • Zic,

        I thought your comments were insightful and constructive.

        I am very aware that I am starting from an initial frame of reference which contradicts or is at least counterintuitive to the paradigms of most other folks. As such, I often face the risk of derailing a conversation. Everyone else is talking at a certain level and I don’t even agree to the starting assumptions. Many times I just write out my thoughts in a long comment.

        When I do engage, I often find that what others think I am saying is not what I am saying. Some of this is that I do not explain myself well. Some is that I bury my explanations in overly long comments which nobody has time to read, and sometimes it is because people are not really arguing with me, they are arguing with a caricature (which is also partly my fault for above reasons).

        I suspect it would be more fruitful if I spent less time in the comments section, and more time composing actual guest posts. This would allow me to lay out my perspective in a clearer way without derailing the conversation.

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      • “Bridge building is slow tedious work and the damn things need perpetual mantenance. Bridge burning is quick work and much more spectacular.”

        I would like to suggest we make November official no snark month at the OT. Let’s see if everyone can go an entire month without the rude snarks. Constructive comments and disagreements only.

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      • Blaise,

        Not that it’s a bad idea, but I haven’t read Mill in almost two decades, and I’ve just got too many other reading lists going on right now to return to him with enough attention to say anything meaningful. He was influential on my thinking at the time, though, and probably still is in a diffuse way I’d have a hard time defining (although my recent comment on this page about curing bad political speech with more speech is, obviously, Millian through and through, even if I’m less sanguine than him about the ability of good ideas to drive out bad (I mean, not everybody’s a libertarian yet, so obviously Mill was too optimistic on that score. *grin*)).

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      • Fwiw, I didn’t think it was absurd enough because I’ve heard/hear real people make that exact argument. It seemed absurd coming from you, but I figures you must have been making the argument on different grounds. Hence my being snookered.

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      • Kazzy,
        But, but…regulating how much you can spend on bumper stickers!? If I actually hear a pro campaign finance restriction liberal say that I’d keel over in shock. I thought somebody’d respond by criticizing me for implying that liberals would ever consider going that far. ;)

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      • Well, I personally think bumper stickers should be banned for reasons related to how assholish they are. So, maybe you wandered into a blind spot unique to me.

        But, suffice it to say, I agree with you: restrictions on speech and the spending of money (whether or not we conflate those two things) should be as limited as possible.

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      • Well, I did advocate a regulation limiting people’s spending on bumper stickers tp $0, si I’m right there with you. If I ever put a political bumper sticker on my car it’s going to say, “I’m pro-fane and I vote.”

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      • But , how do we determine what a campaign contribution is?

        If I make a documentary that is anti-fracking, is that a campaign contribution to anyone?
        What if I make a documentary that is anti-fracking and note that candidate X is pro-fracking and candidate Y is anti-fracking? Does the money I spent on that film constitute a contribution to candidate Y?
        What if I make that same documentary but only discuss X’s pro-fracking ways, never mentioning Y, but clearly paint X in a negative light? Have I contributed to candidate Y? What about candidate Z, who also figures to stand to benefit from X being show in a negative light? Is my contribution split between them? Or counted in full against each?

        Note: All these movies are made without any interaction with the candidates themselves.

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  2. “The High Court is considered an “essential” part of government and therefore is open for business despite the pending shutdown of the rest of the government.”

    I always thought it was more of a matter of interpreting Art III sect 1 “receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”. You can’t *not* pay them, similar to you can’t not pay members of Congress due to the 27th amendment.

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  3. Great piece, Burt.

    Is it possible for you to make predictions at this time? Or do you have to hear arguments? Generally speaking, how much do the arguments factor into the decision and how much of it is based on existing case law, prior arguments, etc? Are cases really won or lost in front of the court, or are they mostly already determined and the hearings are more for show?

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    • SCOTUSblog has a “fantasy Supreme Court” game going where you predict how each Justice will vote on selected cases. The winners tend to be law school faculty who distribute the vote predictions amongst their areas of specialty. I do about as well at “fantasy Supreme Court” as I do at fantasy football, which you may have noticed, isn’t particularly good this year. Once you get beyond the civil liberties issues I know the Justices’ voting patterns well on, I’m only about half a step above a layman. I wouldn’t look for a traditional ideological breakdown on, for instance, IBEA v. Arkison, so the only prediction I’ll make is that civil procedure geeks nationwide are all going to be sporting big ol’ pup tents in their gabardine trousers when that decision gets announced.

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    • The five Republicans will do whatever helps their party, that is, strike down campaign finance limits and agree with the lower court that Obama can’t ever appoint anyone to anything.

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  4. I predict that the search case will be ruled in favor of the people. It seems like a logical extension of the previous case (whose name is slipping me). It is too easy for the police to go back and just ask a roommate when the alleged defendant is not present.

    Or maybe the court will split the difference and say a roommate can give consent to search common areas.

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    • Compare United States v. Matlock 415 U.S. 164 (1974), in which defendant is arrested on the front lawn of his house, and then his wife consents to a search of the house, where defendant himself was silent and his consent was not solicited, setting forth a rule that the person giving consent had authority to do so and that it was reasonably apparent that she did have authority to do so, with Georgia v. Randolph (2006) 547 U.S. 103, in which the defendant refused consent to home search but defendant’s estranged wife (who still maintained a residence in the home) gave consent, and the defendant’s affirmative statement denying consent trumped the co-occupant’s permission. In both cases, the search was found unreasonable and evidence disallowed.

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  5. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

    My comment will take the form of an XKCD comic.

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  6. So I’m halfway through this excellent post, but thought I’d pause to comment that yes, looking at the information in the related link, the medications referenced in the Cline case would properly be considered abortifacients, at least as used in that capacity. (Methotrexate, for example, as other totally unrelated medical indications for use.)

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  7. We harp an awful lot on regulated speech, but the first amendment talks specifically about “speech” vs. “freedom of the press”, which are two different things.

    Speech is speech. And it’s far, far more curtailed in the public sphere by things other than campaign finance laws. Don’t believe me, try and get a permit to protest the World Bank when they’re in town.

    On the other hand, Citizen’s United probably quadrupled the money poured into elections and it didn’t produce the sort of results that would encourage the hypothesis that “money spent on political ads buys votes”.

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      • When Congress, as a body, has about a 10-20% approval rate, but the incumbency rate is close to 85%, and local elections also seem to indicate that name recognition is far and away the best predictor of electoral success,

        I’m guessing “enough money to get your name out there” isn’t really that big of a deal.

        On the other hand, large volumes of money in politics buys influence, which is a problem, because legislators are as convinced as anybody else that money buys elections.

        I think we could solve that problem by any one of a number of other vectors. Open records keeping is a good start.

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      • As they joked on The Daily Show, the only entities in the USA that can boast a 10% approval rate coincident with a 90% retention rate are Congress and Time Warner Cable.

        Cable franchises are almost always renewed these days because the head-end gear, the fiber and coax, all of the amplifiers, etc, are private property. Behind the scenes, cable companies tell the franchising authority (almost always elected), “We think you’ll face re-election as one of the persons who cut off cable service before your new franchisee can build a replacement network. And you can’t seize ours, or take it through eminent domain, because we provide voice and internet services over it that you’re not legally allowed to screw with.”

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    • In Bond v. U.S., the defendant poisoned her friend with potassium dichromate, a photographic development chemical, and 10-chloro-10-H-phenoxarsine, a chemical whose industrial use I cannot readily identify and do not care to invest further research time into ascertaining. She got the potassium dichromate from Amazon.com, and stole the 10-chloro-10-H-phenoxarsine from her employer. Her story is it was intended to be non-lethal revenge for her friend sleeping with her husband, although she is also a microbiologist who it seems to me had access to specialized knowledge that both chemicals are lethal when ingested and it wasn’t a coincidence that this stuff was found on the outside of the victim’s mail and inside the muffler of the victim’s car.

      In 1994, the United States and a variety of other nations completed negotiation of the Chemical Weapons Convention. That treaty requires that signatory states refrain from developing a variety of chemical weapons including those based on the subject chemicals that would subsequently be used by Ms. Bond to poison her former friend. The treaty requires that signatory states go through their constitutional processes to ensure that individuals and business entities within their jurisdictions also not create, develop, stockpile, etc. these chemical weapons. (It took the Senate more than three years to ratify the treaty.)

      Thus, Congress passed the Chemical Weapons Convention Implementation Act of 1998, which makes it unlawful for any person “knowingly” to “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U.S.C. § 229(a)(1). The question is whether application of this law to Bond’s poisoning scenario exceeds Congress’ enumerated powers, on the theory that regular poisoning is a state law matter, something that should have been handled exclusively by law enforcement authorities from the Commonwealth of Pennsylvania.

      I have a hard time either finding the remotest bit of sympathy for Ms. Bond nor any argument that Congress cannot pass laws criminalizing the use of weaponized chemicals as weapons of mass destruction. And I’m not sure how legislation can define when a criminal crosses the line from a targeted poisoning and enters “weapon of mass destruction” territory — I presume that because the lethal chemical agents were placed in the victim’s muffler, they can be transmitted in vapor or aerosol form, which kind of looks like a WMD.

      So sure, this one could be interesting. I’m not so sure the Tea Party wants to argue that Congress lacks the power to criminalize WMD’s — but on the other hand, I’m not so sure that most of the Tea Party types are able to articulate a coherent policy agenda at all.

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      • 10-chloro-10-H-phenoxarsine, a chemical whose industrial use I cannot readily identify and do not care to invest further research time into ascertaining

        I believe it’s a pesticide.

        Note to any other chemists who were wondering how anything could be attached to the 10 position on a phenoxy structure, as I was: it’s phenoxarsine, not phenoxyarsine, which is apparently the non-systematic name for a distinct structure (which resembles dibenzodioxin).

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      • …attached to the 10 position on a phenoxy structure, as I was: it’s phenoxarsine, not phenoxyarsine, which is apparently the non-systematic name for a distinct structure (which resembles dibenzodioxin).

        Of the non-preposition words in that passage, I understand the words “attached,” “apparently,” “name,” and “resembles.” It’s okay, you don’t have to educate me.

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      • I thought about this a little bit today while at the dentist. The defendant was obviously not engaged in chemical warfare — she’s a murderer, but not a terrorist, because she was acting based on revenge for a personal affront rather than to effect political change.

        But I’m still thinking that the U.S. has the upper hand here. About half of the enumerated powers of Congress in Article I, section 8 relate to national security, including most interestingly in this case, passing laws intended to “…suppress Insurrections and repel Invasions.” If these chemical agents can be weaponized — and the defendant’s actions hint pretty strongly that they can — then it seems entirely appropriate to me that their weaponization be a Federal crime because keeping a WMD like a gas bomb made out of the ethyl-methyl-badstuff that the defendant here used out of the hands of anyone but the government is rationally related to suppressing insurrections and repelling invasions.

        So what I think happened was an overcharge by the federal authorities — the actions fit the technical definition of the crime, yes, but that doesn’t mean it was the right charge to bring against this defendant. Just because a statute can be applied creatively in a particular situation does not mean that doing so is consistent with the interests of justice.

        An overcharge by the prosecutor is not the same thing as a violation of the Tenth Amendment. That’s having skimmed only a portion of the defendant’s petition for certiorari; I reserve the right to change my mind later if someone comes up with a better argument.

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  8. Out of curiosity James, where do you stand on the question of anonymity. I can definitely see a constitutional right to contributing money as free speech (though I’m not sure I 100% support the idea) but what about doing it anonymously? Is that equally kosher to you or do you think laws requiring very out in the open disclosing of donations are supportable?

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    • North,
      I don’t like anonymity of donations, but again it’s a free speech issue, right? If Congress can’t prohibit anonymous speech, can it prohibit anonymous uses of mechanisms of speech? Can it require me to put my real name on any political posters I hang up somewhere? Can it punish me if I use a pseudonym on a blog or a newspaper’s online discussion board while advocating the electoral defeat of my congressman?

      I get why people don’t like anonymity, but really really disliking it is not a constitutional argument. And I’m open to constitutional arguments on these issues, but I’ve yet to hear any that a) don’t seem based on political concerns rather than a demonstration of constitutional authority, and b) take seriously the concern that we’re giving the government the authoritu to regulate political expression. I really think that’s a cure worse than the disease, and that campaign finance regulation advocates shrug off far too casually.

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      • There’s clearly sums of money that go beyond mere expression and into influence peddling. Now, like pornography, that’s more a “know it when you see it” point, but we’re talking about when an act stops being expression and becomes a separate action of corruption. Money is unique in the sense that it can do this whereas other forms of political expression cannot. (Unless maybe we’re talking about subliminal messaging and or other forms of manipulation with imagery and speech)

        What if through the use of broadcast technologies you were able to noticeably change someone’s behavior? Would putting restrictions on that broadcast technology also count as a regulation of expression?

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      • So, Nob, what you are saying is that there is a difference between my purchasing a bumper sticker, and my purchasing a global TV network with 24/7 political broadcasting?

        Next you will be telling me that the government has the right to regulate the time, place and manner of political speech.

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      • See, this is where people like me start to suspect bad faith or astounding naivete on the part of libertarians.

        Given that the end consequence of unlimited anonymous cash is to strengthen the hand of the 1%, then the only logical conclusion of your argument James is that you are completely indifferent to the inevitable outcome.

        So when libertarians argue vociferously that they are opposed to corporate welfare, yet argue just as strenuously for policies that empower these very same welfare recipients, how do you want us to square this circle?

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      • Next you will be telling me that the government has the right to regulate the time, place and manner of political speech.

        There are the folks who look at this sentence and think “man… wouldn’t that be *AWESOME*?”

        There are the folks who look at this sentence and think “we shouldn’t even joke about the government having that power.”

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      • Given that the end consequence of unlimited anonymous cash is to strengthen the hand of the 1%, then the only logical conclusion of your argument James is that you are completely indifferent to the inevitable outcome.

        The “only” logical conclusion? Really? Because I care about Constitutional constraints on government, I must be “completely indifferent” to the effects of those constraints? Even though I have said, here on this page, that I do not like the effects of unlimited money, you are going to imply that I am lying, and am actually “completely indifferent”?

        I also believe in constitutional constraints on the search and seizure power and on police interrogations. Does that mean I am “completely indifferent” to the crimes that criminals have committed?

        Perhaps, LWA, the only logical conclusion of your argument is that you are completely indifferent to the Constitution? Or, as I am more inclined to believe, that you are completely indifferent to logic itself?

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      • What if through the use of broadcast technologies you were able to noticeably change someone’s behavior? Would putting restrictions on that broadcast technology also count as a regulation of expression?

        I don’t really know what you’re saying, Nob. Are you asking whether I think we can restrict advertising? Or are you talking about some kind of actual mind control?

        I notice, though, you’re still not approaching any constitutional text. There is some you might be able to use, but I’m not going to hand it to you. I’m just going to reiterate that “X is really bad” is not really a constitutional argument, except to blind idelogues on each side of the aisle.

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      • Hunter S Thompson tells the story of LBJ running for office against a wealthy pig farmer. LBJ wanted to call a press conference to accuse his opponent of having carnal knowledge of his pigs. Shocked, his advisors and family begged him not to do it. “It’s just not true, Lyndon” they said.

        “Of course it isn’t”, snarled LBJ. “I just want to see the bastard deny it.”

        LBJ was a master of the smear campaign. The smear campaign goes back right to the beginning of the republic: Thomas Jefferson hired James Callendar to smear Adams. Told more lies about Adams — said Adams would declare war on France. Adams, too dignified to respond in kind, lost the election.

        Money can change the conversation completely. Hatchet jobs like Callendar’s smearing of Adams win elections. Citizens United not only allows such smearing to continue but positively encourages it.

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      • See, this is where people like me start to suspect bad faith or astounding naivete on the part of libertarians.

        What’s funny, here, LWA, is how you reveal yourselfto be nothing more than a knee-jerk ideologue. Even though self-defined liberals Kazzy and Blaise argue above against my tongue-in-cheek pro-regulation argument, you can only see it as a libertarian argument. I jokingly called them libertarians, but apparently you believe they really are.

        Now ask yourself, if as a liberal you’re ignorant of the fact that liberals can and do hold the position I hold, why should I take you seriously?

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      • Blaise,
        You’re the one who worried about printing presses. CU just protects big ol’ printing presses.

        Curious that nobody here addressed my question about whether we can regulate the size and speed of presses. Your example is powerful–very apropos.

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      • I’m not worried about the printing presses. I merely observe it takes money to buy one and more money to run one. You’re still dancing around the fungibility of money and speech. I say money becomes speech and without money, there’s no mass media. That’s my point, whole and entire.

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      • You’re still dancing around the fungibility of money and speech.

        True, but only because I think my position is clear without me having to spell it out. Is there anything in the history of what I’ve written that would lend serious doubt to where I stand? (Keeping in mind that those who identified my first comment as sarcasm ir a reductio…those guys get me.)

        I say money becomes speech and without money, there’s no mass media. That’s my point, whole and entire.

        I would only add that without mass media there’s little effective political speech in a mass democracy, which does not dispute your claim but just adds another link to its logic sequence.

        (And that efective speech in a mass democracy requires mass media, and that mass media requires money is the reason I am…shocked? amused? flabbergasted? … by LWA’s claim that I am indifferent to the outcome. I am concerned about the effects of too much money promoting specialized interests, but also concerned about the effects of regulating political speech, concerned about a properly functioning democracy, and concerned about constitutional governance. To boil all that down to, “indifferent to the outcome” suggests something’s being overlooked,)

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      • James, the fact that you assert you “care” about the consequences of policies that you propose doesn’t convince me of anything.
        What, do you wring your hands? Do you shed a tear about agricultural subsidies that your preferred policy would enable?

        You assert two statements- that corporations should have unlimited ability to insert cash into campaigns, yet they should not receive preferential treatment.

        These are flatly and obviously contradictory in their inevitable consequence. Simply chanting that the “Constitution demands it!” is a silly red herring.

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      • Simply chanting that the “Constitution demands it!” is a silly red herring.

        I’m pretty sure that’s the conservative position on a variety of issues, including the prohibition on warrantless searches and the prohibition on school sponsored prayers. There’s no end to the things we can do if we sneer at the strictures of the Constitution.

        I’m sure you’ll agree with me that America’s evels of teen motherhood are far too high, and that the evidence shows their children are particularly likely to do poorly in school, be abused, and not succeed as adults, and so we ought to require that all teens in the U.S. be on birth control. If not, I’ll be convinced that you are indifferent to the consequences of large numbers of unwedteen mothers.

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      • I notice, though, you’re still not approaching any constitutional text.

        Possibly because I don’t really have an undue reverence for a document that explicitly prohibits freeing escaped slaves. It’s better than many of its alternatives, but that’s all it is. It’s not holy writ.

        I would argue, in fact, that the Constitution of Japan is a substantially better document than the US Constitution, with Chapter III and its enumeration of rights being substantially more robust. I mean…:

        Article 11. The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.

        Did I mention:

        Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
        No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

        Anyway, aside from that little segue, let’s go back to the US Constitution.

        Would the Commerce Clause actually work to prevent corporate donations to political interests from MNCs?

        Note that the specific clause says:
        “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

        Now we know this is typically used for interstate commerce issues, but clearly the Constitution itself differentiates between commerce and expression. That is to say, at some point when a corporate entity or a large enough private individual working to further corporate goals directly or indirectly by pushing for public officials who meet their private goals goes from expression to full fledged commerce.

        We also know that lobbying is not considered so much as part of political speech, but rather as part of the petition for redress. As in lobbying is a first amendment right not because of political speech but because it’s considered a petition for redress to the government itself.

        Doing away with anonymity of monies received by legislators and other public officials I think would actually fall under that petition of redress clause. Specifically by denying voters access to that information (to see who has given money to their congress critters) they’re being denied the right to redress. It’s not perfect, but constitutionally there is a fair amount of stuff that allows citizens to file grievances against their elected officials.

        I suppose alternatively we have the No Title clause, section 9 which prohibits any public official from receiving gifts or presents from a foreign power. Do multinational corporations fall under this rubric?

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      • For what it’s worth, it’s long been accepted that Congress may prohibit corporate entities (not including, I believe, PACs relying solely on individual donations) and unions from donating directly to political campaigns, and in fact they are prohibited from doing so.

        So there’s not an issue regarding limitations on what a politician may and may not accept. The issues with corporate electioneering arise with respect to independent expenditures, which a politician does not even have an opportunity to accept or reject as long as they are truly independent (whether a given expenditure is truly independent is of course another issue altogether, since it’s hard to prove a lack of independence).

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      • Nob,

        The argument about whether the U.S. Constitution is ideal, or better or worse than some other country’s constitution is a red herring. The underlying issue is constitutionalism. The proper response to a subpar constitution is not simply to blow it off, but to change it. Oh, and it seems you may not have noticed that we changed that slavery bit. (And for the record, I don’t make a point of claiming the U.S. has the best Constitution–I actually make a point of pointing out to my students how unusual it is, and how nearly all the countries that have written constitutions since 1787 have not actually followed our model.)

        Would the Commerce Clause actually work to prevent corporate donations to political interests from MNCs?
        Seems like a hell of a stretch. I mean I get the concept that donations intended to help produce favorable business regulations can very reasonably be understood as an investment, hence a form of commerce. But how do we operationalize that so we actually know it when we see it? What if I give money my congressman’s campaign so he’ll listen to me about how much my college needs a federal grant to develop a big policy institute? Is that any less commerce than GM donating money to him so he’ll support lower CAFE standards? And you know, GM may be a MNC, but they’re headquartered in the U.S. That gets really tricky to say one U.S. business can give money and another can’t, just because it is more multi-national than another.

        Doing away with anonymity of monies received by legislators and other public officials I think would actually fall under that petition of redress clause. Specifically by denying voters access to that information (to see who has given money to their congress critters) they’re being denied the right to redress.
        I’ll give you points for creative effort. And that’s not simply snark–lawyers arguing cases before the Court are often casting around for multiple hooks to hang their arguments on, hoping that at least one is sufficiently appealing. But I don’t buy it, because I can still go to my congressperson and complain about the anonymity itself. I can write a letter to the editor or an email to my representative and say, “why won’t he (you) tell us where your money’s coming from?” without any fear of repercussions.

        I suppose alternatively we have the No Title clause, section 9 which prohibits any public official from receiving gifts or presents from a foreign power. Do multinational corporations fall under this rubric?
        Hmm, is a campaign a “present, emolument, office, or title, of any kind”? Maybe. But is an MNC a “king, prince, or foreign state”? I’m dubious.

        I’ll tell you straightforwardly, that part of our disconnect is that you are pursuing an approach to the Constitution that I think is anathema to constitutionalism itself, although it’s extremely common. That approach is to see an issue you’d like to address, and then to say, “can I find some element here that I can interpret in some way that it will give the government the authority I want it to have?” My approach is to ask “was this authority clearly given to the government?” This approach is amenable to libertarianism, but for me it substantially pre-dates my shift to a more libertarian mode, so it wouldn’t be accurate to say I think that way because I’m a libertarian. And within that mode I recognize that the appropriate thing sometimes is to say, “no, government doesn’t have the authority to do what I want it to do,” (or, conversely, “it does have the power to do what I don’t think it should have authority to do.”) I really dislike making our political goals dominant over the Constitution. Granted that gets problematic when we’re talking about something that is constitutional-level in significance, as in “it helps to constitute how our system is really structured and works,” and I think corporate influence in American politics has a very strong argument for being at that level.

        But then, dammit, let’s get serious and try to persuade other Americans that we need a constitutional change–let’s not chicken shit around with just finding cutesy interpretations of the Constitution so that we can accomplish what we want while undermining the very concept of constitutionalism.

        Or if we only see it as an inconvenience that we need to work around, why not get rid of it altogether and admit there are no constraints on the demos’s contemporary concerns?

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        • The most interesting part of the US Constitution is how US-government designed constitutions read nothing like it… (This is particularly true when enumerating rights and protections…) That digression aside, I think you’re discounting, to some extent, the degree to which I’m raising points mostly as a counterpoint to yours, rather than actually espousing my position in an ideal situation per se.

          I would argue, in fact, that much of my conceptual weaknesses in analyzing policy is that it tends to focus on its legality. That is, whether or not the power is within the rights of government to enact within the rule of both constitutional (including judicial precedent) and statutory authority. Afterall a fair amount of my defense of NSA data collection power as a legal matter (rather than policy desirability) stems from my interpretation of privacy and search&seizure precedent in the US regarding surveillance.

          Where I think we differ is that I’m unclear on what constitutes authority except what is established in practice. Is the concept of judicial review constitutional as a matter of text or is it because of a body of interpretive law started with Marbury? Given that SCOTUS has to some degree made clear there’s a delineation between personal political expression and that of corporate entities, for example, I think it’s very reasonable to ask whether or not there can also be interpretations of Art.1, Sec.9 that would foreclose accepting lobbying dollars or gifts or even the promise of post-retirement jobs/speaking positions for entities partly or wholly owned by foreign governments.

          And the fact of the matter is, it’s very murky where the line between commerce and expression is drawn with regard to campaign expenditures. Who or what do we draw the line at? One potential line is the individual/corporate nexus. That seems to have been drawn to some extent by SCOTUS rulings forbidding campaign contributions from corporations and unions. Right now, it seems clear SCOTUS is debating the validity of the size of campaign contributions as being a factor of shifting from expression to purchasing influence. Again, this seems to me a valid exercise. If you want to define what expression means, it’s certainly possible to advocate for that, too. I’m really agnostic on where that line is drawn.

          I’m not sure if I’ve ever made a post here at OT that makes clear my disdain for the British “Constitution” of parliamentary sovereignty and the “unwritten constitution” non-sense that subjugates rights to whatever Parliament feels like allowing. (I should, in some future post, do a comparative constitutional protections post…where the UK comes under substantial fire…)

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    • : Putting aside anything you’ve said to others, what you’ve said to me is merely pushing the pin back into the grenade of your argument. The absurd part of this reduction comes down to your unwillingness to regulate what you already understand is a serious problem. Were you to actually come out and say money is speech is to short circuit your own argument against regulating money in politics. That’s why you haven’t said it — because you know every diode on your board would pop off and fly all over the place if you did connect it.

      My point, that money can be converted into speech, says we can keep dark money out of the process by reforms to the 501(c)(4) process, goes uncontested. You haven’t addressed, nobody’s addressed it. FEC furnishes lists of donors, Citizens United makes the FEC irrelevant. All the dark money goes down the (c)(4) route.

      You want it both ways. It isn’t sarcasm to observe you don’t like the influence of dark money on the process — but your viewpoints on regulation won’t allow you to observe it’s first money, then it’s speech. I’m BlaiseP and I approved this message by anonymously donating large sums of money to some (c)(4) which tells lies about people I don’t like.

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      • Is money speech? Perhaps, but it’s uselessly inflammatory for a known libertarian to say so. It short-circuits thought, on both sides of the aisle here. Liberals (some) will go nuts over the idea without thinking about what’s really being said, and in response libertarians will forget what was really being said and go nuts defending the idea. If’s a political buzzword and a debate killer, so I prefer to avoid it.

        Besides, it’s also not precisely true. What you’ve said is much more precisely correct–money is a means of making speech effective (if you’ll pardon the paraphrase).

        Money is speech? I guess that depends on what the meaning is is.

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      • Well, sure. I’m not sure you still qualify as a Libertarian, as a noun or descriptive. In its proper adjective form, sure, your viewpoints are libertarian with a lowercase L.

        You’re entirely too sophisticated to ever be a real Capital L Libertarian in any meaningful sense. It’s a fine proposition, eminently defensible, to push back against government on a general basis. So just walk away from the Capital Ls. I had to walk away from being a GOP Conservative back in my day. Did me a world of good, philosophically and ethically. By sophisticated, I mean only this: you won’t back away from the troublesome facts which never take sides. Libertarians are far too doctrinaire, promulgating simple answers to complex problems.

        I say, the solution to every problem, no matter how complex, is architected around a proper definition of that problem. Money powers mass media. Most of these political contributions are poured down mass media ratholes and into the pockets of Political Consultants, none of whom are worth a bucket of warm piss. All they do is lie about the Other Guy.

        If there’s to be any lying done, at least put real names on the liars and those who pay for the transmission of those lies. I contend the majority of our political problems today arise not from any substantive differences on the issues but rather from stoking the fires under the steam boiler powering the Mighty Wurlitzer of partisan politics. The solution is obvious, shut down the (c)(4) incorporation. Turn on the lights and the cockroaches will go running.

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      • … or amend the nature of the 501(c)(4), obliging them to expose their donor lists — something of that sort. Citizens United is all about the (c)(4) loophole. Liberals won’t much like closing it, either. Guys like Soros use (c)(4)s to get around FEC limits, too.

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      • Dude, I’ve never been a capital L libertarian. Never claimed to be; often disavowed the thought. They’re right there in my pantheon of villians along with all other ideologues, including the liberal ones and conservative ones.

        By sophisticated, I mean only this: you won’t back away from the troublesome facts which never take sides.
        Thank you. That’s the nicest thing that’s ever been said about me online.

        I say, the solution to every problem, no matter how complex, is architected around a proper definition of that problem.
        Yes, but I’ll insist that not every problem has a solution. And some have solutions whose costs outweigh the benefits. And some have solutions but we lack the capacitu to achieve them. We flatter ourselves to think that we can find a solution to any problem. Indeed, given the ingenuity of humanity, there would seem opportunity for optimism. But then we have to remember that these are problems arising from that ingenuity, and that ingenuity will always be channelled into an effort to circumvent any solution we devise. It’s our gift and our curse that humanity is not simply reactive, but adaptive. Policy prescriptionists who ignore that simple truth are doomed to propound foolish prescriptions.

        /sermon (did you know I once planned to enter the ministry? what a profoundly ill-chisen occupation that would have been.)

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      • “not every problem has a solution.”

        And sometimes the solution is to declare that something is not actually a problem. The solution to the “problem” of same-sex marriage was to stop believing that same-sex marriage was a bad thing.

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      • “I’m BlaiseP and I approved this message by anonymously donating large sums of money to some (c)(4) which tells lies about people I don’t like.”

        Kerry could have handled the Swift Boat thing the hour it started by releasing his military records, which he didn’t do, and as far as I know still hasn’t done.

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      • Well, that’s gratifying to read. It’s as you say, not every problem has a solution. I’d extend it to say such problems elude definitions. I tend toward Consequentialist biases, constantly entertaining nagging fears about the fundamental nature of my prescriptives. I cheat, of course. Professionally, I rationalise it away, saying I’m just implementing Policy. In my own life, it’s more complex and I can indulge in baroque hypocrisies of the most self-justifying sort.

        There’s no one size fits all solution for anything in life.

        Think I’ve said this around here before: I woke up one morning in college near the end of my sophomore year, put on a white shirt and a tweed jacket, looked in the mirror and scared myself to death. To that point, I’d been a Good and Dutiful Child. I had been expected to become either a minister or a college professor: my father had been both. I slid along the greased rails, enjoying the ride, aided and abetted by the community which had produced me.

        I had scheduled an appointment with my advisor that morning. On that basis, I would choose a major. I’d taken courses in pretty much every department, stoutly avoiding the choice. Really didn’t want to choose. All I could see in that mirror was a reflection of my father. Gregor Samsa only turned into a horrible insect. I turned into something even more frightening.

        Ended up enlisting in the US Army.

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      • Well, that’s gratifying to read. It’s as you say, not every problem has a solution. I’d extend it to say such problems elude definitions.

        Hmm. I’m not sure I’d be comfortable with that as an absolute, but I suspect it’s correct to a very considerable degree.

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      • And, as a final example, we’ll take California Proposition 16. PG&E put $45 million dollars into the “yes” campaign. The “no” campaign had only $90,000 in organized backing, and probably less than half a million if you’re exceedingly generous with your valuation of unpaid effort. And the proposition lost, by six percentage points, despite that 80-times spending differential.

        So, y’know, maybe the problem isn’t the actual spending, but the response to the messages it buys.

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      • : John Stuart Mill recognised the intractability of such problems:

        The truths which are ultimately accepted as the first principles of a science, are really the last results of metaphysical analysis, practised on the elementary notions with which the science is conversant; and their relation to the science is not that of foundations to an edifice, but of roots to a tree, which may perform their office equally well though they be never dug down to and exposed to light. But though in science the particular truths precede the general theory, the contrary might be expected to be the case with a practical art, such as morals or legislation. All action is for the sake of some end, and rules of action, it seems natural to suppose, must take their whole character and colour from the end to which they are subservient. When we engage in a pursuit, a clear and precise conception of what we are pursuing would seem to be the first thing we need, instead of the last we are to look forward to. A test of right and wrong must be the means, one would think, of ascertaining what is right or wrong, and not a consequence of having already ascertained it.

        When all’s said and done — by whose lights is something Right or Wrong? That’s where these problems enter into intractability. Ends and Means and all that…..

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      • When it comes to money in politics I think we can separate it into pretty distinct sections.

        There’s:
        1) Direct lobbying and gift-giving to elected or appointed officials.
        This one I think is probably the one that most everyone (except maybe the US CoC?) can agree is a pernicious influence. Unfortunately it’s also a constitutionally protected right, as it’s considered petition of redress of grievances.

        2) Campaign contributions to candidates
        This is a pretty strictly regulated field. Campaign contributions are tightly controlled on how they can be spent, which is why we have…

        3) Contributions to individual leadership PACs
        A loophole that exists from the above. Essentially an official can have a secondary fund that can be used in a wider variety of activities (including giving to personal charities). This is a hugely problematic grey area which the FEC has identified as a problem area to address.

        4) Third Party Issue/Candidate Advocacy
        So far as the literature can tell us, this last category has a LOT of money sunk into it with minimal efficacy. So far as I’m concerned, I’m happy to let this one be used more and more.

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      • I’m late to this discussion, but I’m hoping you’re still in this thread, because I’ve found your insights here have had significant impact on my thinking.

        It’s probably fair to characterize me as one of those who will go nuts over the idea of money as speech for all the reasons laid out by other Liberals in this thread, but as I think about what it really comes down to, I’ve come to recognize how complicated the issue is. This statement – “In a nutshell, I absolutely refuse to believe that my preferences are necessarily constitutionally authorized, or that things I dislike are necessarily constitutionally prohibited.” – in particular, resonates with me.

        That said, I still think money in politics is the mainspring for 95% of what isn’t working in this country. Whether you are a firm believer in the potential of government to correct for the vagaries of capitalism with minimal corruption or you’re committed to limiting government to the greatest extent possible or you’re somewhere in between, none of these societal systems is possible with a government of rentiers bought and paid for by moneyed interests for whom the status quo is a boon. Government is the only venue through which government policy can be changed, yet the capacity to elect politicians who want change (in any significant direction from the current state) is thwarted by entrenched incumbents who profit by the way things are. Even politicians with intent to change who manage to get elected despite these obstacles must acquiesce to stay in power for reasons you’ve outline above. The truth of “Money in politics has been likened to water flowing downhill; you cannot stop it, you can only change its channel” is hard to deny.

        So the question for me is, if it is true that this problem and we agree it’s a problem and we agree it cannot be corrected by the law, what is to be done? Do we have to just live with it? Do we have to wait for the inevitable implosion of an unsustainable system and then rebuild from the ashes? This strikes me as defeatism.

        So, I think you are on to something when you point to the similarities with marijuana regulation. I’m confident that prohibition of marijuana is coming to an end in the US sooner rather than later. How that’s come about could provide direction for how money in government could also be curbed. With marijuana, government isn’t leading to the change (government is actively resisting) and the markets aren’t leading to the change (the black market is doing just fine), but it is cultural forces that are leading to the end of marijuana as an illegal drug. Cultural forces will have to lead to changes in how money influences politics. How exactly, I don’t know, but I think it is the only corrective short of full collapse and starting over.

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      • Scott,

        First, I really like your idea of making candidates wear sponsor patches like NASCAR drivers. That guy who’s got just one patch, but it covers most of his uniform? Don’t vote for that guy.

        In answer to what’s to be done, I’d be remiss if I didn’t point to Dan Miller’s guest post from about a year and a half ago (thanks, Dan, for linking to that). My undergrad mentor believed all campaign funding should be publicly funded, and no private monies allowed, because “campaigns are the public’s business, so they should be publicly funded.” I don’t agree with the ban on private funding, but his underlying point is a good one. So while I have qualms about the appropriate design of a public funding system (I suspect the standards for eligibility would probably reinforce our two-party system, but on the other hand not every jackanapes who decides she’s a candidate should necessarily qualify), I think it’s politically justifiable, and as Dan emphasizes, quite constitutional.

        The other approach is the classic one of fighting bad speech with more speech. If we can’t literally make them wear their patches, we figuratively can. Not only can we go online and find contributors, as someone here noted earlier, we can distribute that information as widely as we’re able. If Corrie Upt for Congress is getting a donation from “Citizens for Good Political Things” we can dig in and figure out what that organization is really about, and if it’s too opaque to figure out we can demand to know why Candidate Upt is taking donations from such shady organizations.

        The beauty of the internet is it’s so damn cheap that we can more easily counter megabuck donations.

        The bigger problem is the equal opportunity donations of big business. When GM gives to both the Republicans and the Democrats we might be able to avoid Tea Partiers, right-wing moralists, and Earth Firsters and have a nice moderate government, but it will undoubtedly be too corporate friendly. But I think the more fundamental problem there is just that a majority of Americans really are satisfied with that; they won’t reject such candidates and insist upon someone who doesn’t take money from any big businesses. So in trying to fight against that we’re fighting against the majority. And in trying to do that, the best long-term solution is not to pass laws that force our will upon them but to change the political culture. That’s not an easy task, but it’s doable as we’ve seen with other issues. The problem is liberals and libertarians agree on the badness of corporatist government but don’t agree on the solutions, so we can’t team up well for real effectiveness. But maybe Dan’s public funding solution could help with that…at least I don’t see how it could hurt.

        (Of course as has been pointed out elsewhere here, I am totally, 100%, completely, utterly, and blindly indifferent to corporate control of our government. Well, he didn’t get it exactly right. Actually, we libertarians just love us some corporatist government. Our entire ideological goal of free markets and non-coercion will be achieved subsidizing businesses and allowing them to enslave your children. It’s all laid out in Nozick’s Anarchy, State and Utopia.)

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      • James –

        The proven methodology for sound problem solving in non-political realms is to avoid jumping to a solution before reaching clear, substantive agreement on the core problem. I’ve long felt if libertarians and liberals could follow that method, they would be able to work together. It’s much harder than it sounds, certainly.

        As to the rest, the Catch-22 with a public funding solution is that you need a Congress interested in enacting a public funding solution in order to create an electoral field of play that makes it possible to elect a Congress interested in enacting a public funding solution. If you follow…

        There has to be a cultural push that comes first to shift the political zeitgeist. You are probably right that the internet holds the key. As the medium continues to mature, it could lead to broader enfranchisement. We don’t have the resources of the oligarchs, but at least we have the numbers. Think the Tea Party without the epistemic closure…

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  9. A big part of the holdings of Marshall v. Stern has already been abrogated, and a large part of the decision is fact-specific. As far as case cites go, you’re better off looking for another one than citing Marshall v. Stern.
    IIRC, all federal courts are courts of limited jurisdiction. The SCOTUS is the only one that’s required by the Constitution; the others have been added by statute & procedure.
    A bankruptcy judge doesn’t have authority to hear a bankruptcy case. That goes to the district judge, who signs off on the final decree. The bankruptcy judge gets the case through a referral from a district judge; typically done by local rule.
    A federal court can exercise supplemental jurisdiction over other claims, provided it has jurisdiction over at least one claim between parties in privity. And bankruptcy courts tend to do that a lot as well.
    The Uniform Fraudulent Transfer Act was one of the most sweeping tort reforms in recent times, c. 1970’s, and most states signed on to it. It’s not needed in the bankruptcy context though; though I can envision a situation where alternative claims were pleaded, and fraudulent transfer was one of them.
    In the bankruptcy context, those types of acts are covered by the concealment statute, 18 USC 152. Some of the obstruction statutes might be applicable as well; 18 USC 1503, 1519. Sec. 1519 is the big guns.
    The answer to all three questions at the end of the paragraph are “Yes.”
    Once the matter is in the bankruptcy court, it’s all theirs. If any party wishes a non-core matter to be heard in a state court, it has to be removed to the jurisdiction of the state court; Fed.R.Bank.P. 9027, 9033, et al. The bankruptcy judge issues a recommendation to the district judge, and the order comes from the district judge.
    If a state court ruled on a core proceeding without proper removal, the judgment is void (not voidable, but void).
    I know of two controlling cases from the Ninth; Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, (9th Cir.2000) (en banc), and Gonzales v. Parks (In re Gonzales), 830 F.2d 1033 (9th Cir. 1987). Both of those focused heavily on the Rooker-Feldman doctrine. The Ninth takes an extremely narrow view of Rooker-Feldman, while some other circuits have a more expansive interpretation.

    Gruntz identified three limited circumstances in which a state judgment could be given preclusive effect in subsequent bankruptcy proceedings in federal court: (1) the state judgment is prepetition; (2) the bankruptcy court affirmatively has authorized the state action, as, for example, by lifting an automatic stay; or (3) the case does not involve a core proceeding that implicates substantive rights under title 11.
    McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002)

    And now that I’ve said all that, the fact that this even made its way through the appellate courts to the Supreme Court is a bit of a surprise. There must be something fact-specific about the particular transfers at issue; otherwise, it’s a matter of settled law.

    Navarette: I know a police officer has a duty to assess the veracity of informants, and failure to do so is actionable under 42 USC 1983 (because it was in that set of jury instructions that I was reading about it).
    This one probably comes down to what the record makes a showing of in this particular case, and likely has very little effect outside of it.

    But I’m really wondering about this “age discrimination” case.
    Is this an employment claim, or an accommodations claim?
    Personally, I would be nervous as hell if it were me bringing that case, regardless of whether it’s employment- or accommodations-related. The SCOTUS has a way of paring back the basis for those types of causes of action.

    PS: Just to jump into the First Amendment fray . . .
    greginak: So since there is Freedom of Speech i can shout in the face of an ex “i’m going to kill you” for an hour?
    It depends.
    First Amendment protections extend only to public speech. If you think about that a little bit, it will make sense as to why.
    That’s the easy part. Where it gets tricky is that public speech can be made in a private setting, and private speech can be made in a public setting. But more often than not, if the statements are addressed to one individual in particular, it’s private speech.
    Now, were the statements indeed public speech, say made for commercial purposes or something, then the statement, “I’m going to kill you,” would have to be a “true threat” before any manner of action under state law is taken against the speaker.
    Think Ted Nugent and Barack Obama. No true threat there.
    Actually, the SCOTUS struck down two statutes (one from Minnesota, the other in Virginia) criminalizing cross-burning when they came up with that one. But it’s fairly rare that they would declare a state criminal statute as unconstitutional; at least, as far as I can tell.

    The only way that money = speech makes any sense to me is from the view of the candidate.
    The Court’s (IMHO, undue) benevolence toward campaign contributions is unfathomable to me.

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  10. To Everyone Arguing Over Money in Politics:
    The right to privacy does not include personal nuclear weapons for pretty much anyone, no matter how wealthy they are.

    The right to free speech ought to suffer the same confines of practicality.

    Today, I give you an existential threat to democracy and a very real threat of martial law, mass chaos,
    and economic destruction. Does that not weigh more than a nuclear weapon?

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