Tit for tat, presidential style or actually not so presidential, though Obama is only a politician, so notwithstanding his “change the tone in Washington” lectures, he’s as guilty as the next when it suits him. However, when you have a Supreme Court Justice impersonating a right-winger like Joe “you lie” Wilson, the whole event turns into a revelatory moment about the current cliff on which our democratic Republic is poised.
“Not true,” Justice Alito mouthed when Pres. Obama called out the Supreme Court over their Citizens United v FEC ruling. The rebuke an unabashed partisan broadside.
“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.” – Pres. Obama
This childishness gives me an opportunity to revisit an emotional issue that’s pitted usual allies against one another.
One thing first, NRO has got it wrong. From several lawyers, including via emails, the issue is not foreign corporations at all, as NRO’s Bradley A. Smith contends. It’s about domestic entities tied to foreign corporations that are based inside the U.S. Understanding that I am not a lawyer and don’t play one when analyzing, but know plenty of them.
Now I want to revisit Citizens United v. FEC since the dust has cleared. They were very smart to use Hillary Clinton as a target, because they picked an emotional issue on several fronts that managed to cloud everything involved. Dusting off that initial fog, and after reading a lot of articles and posts on the matter, I’ve reaffirmed my analysis going back years, which is that money is speech. I know that’s very unpopular with the left, but I’m used to playing the contrarian. Protecting everyone is the goal of the First Amendment, with people behind corporations just like they are behind the ACLU, to give one example, though that’s not to say that corporations are people, too.
Glenn Greenwald made an argument, which is in line with my thinking.
More specifically, it’s often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that’s true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians). The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech — especially political speech — no matter the good results that would result from the restrictions. That’s the price we pay for having the liberty of free speech. And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.
Jonathan Turley then bats clean up on this one:
The ruling went down the ideological line with Justice Anthony Kennedy giving the majority the fifth vote and then writing the opinion. He stressed that “[o]ur nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” That is the sentiment that motivated another of civil libertarians and free amendment advocates to support the conservative litigants. This is a case that split the free speech community with the ACLU and free speech advocates like Floyd Abrams supporting the conservative filmmakers in this case.
[...] … [...] I was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case. However, I do consider this to be one of the most difficult free speech cases to hit the court in decades. Many of my friends are on the other side and I understand that this is quite a blow. People of good faith can disagree on such issues. It really broke along a fine line. It depends on whether your gravitational point tended to fall along the free speech line or the good government line. It is a rare case where those lines ran perpendicular rather than parallel with each other.
It’s a highly charged issue obviously, as Barack Obama rarely weighs into anything publicly in such a manner. Veteran Supreme Court watcher Linda Greenhouse also weighs in. And although I find myself on the other side of the argument than many of my colleagues, I also appreciate the Supreme dissenters on the Citizens United ruling who are making importantly cogent points. Still, I remain unpersuaded. The First Amendment simply doesn’t guarantee an outcome, simply the freedom for speech to flow. (Falsely shouting “fire” is not a rebuttal point, nor is anything else unless obvious provable calamity would ensue.)
Turley makes the seminal point in his post:
We have a political failure in our system that is sucking the life out of the Republic. The monopoly of the two parties on power produces endless loops of corruption and conflict. The problem in my view is structural not financial. We need to break the domination of incumbents and the two parties. This can be done with fundamental changes in our primary system, eliminating the electoral college, creating new opportunities for third parties, and other reforms.
No one has yet to do anything about it.
The first thing that’s needed is for independents to find a worthy standard bearer so their political positioning means more than just seesawing between the only available and often less palatable (to them at least) options, basically reducing the building majority of voters to nothing less than the pretty virgin being fought over at the dance.
“The first thing that’s needed is for independents to find a worthy standard bearer so their political positioning means more than just seesawing between the only available and often less palatable”- Taylor Marsh
As independent voter I couldn’t agree more…I’m so sick of both Republicans and Democrats…Why in the hell do we still have just these two sorry parties to choose from?… I feel sorry for my fellow Independent voters that are so sick of Democrats at the moment to vote Republicans disguised as “Independent thinkers” …roll eyes at that foolish notion..Once Republicans have gained back both House & Senate it will business as usual…They will kick the tea parties and everyone else that opposed them to the curve…Dems have shown once again they can not come together and govern properly…to much infighting for my taste…So, I’m glad there magical 60 is over…smile..Both parties need to be die off and new ones reborn in the next generation… Or we will never solve America problems…
I’m not sure that Independents are a monolith. Tht being said you make some good points but I think I come down on the side of good government. When you compare the power of corporations to free speech to the power of the individual,as usual the individual comes up the loser.But Turley is right reform is the best way to go.
Taylor, I absolutely agree that the problem is one of “structure” — but as long as there is big money in the system the structure won’t change! Incumbents receive vastly more money than challengers — the last time I looked at this closely it was 70% more than challengers. That’s a huge hurdle to overcome. As long as incumbents have a vested interest in the status quo, things are not going to change. And making corporations “people” only adds to the problem.
If I had it my way campaigns would only be funded by individual contributors, and there would be a maximum on how much any one person could give. I’d like to see how well candidates can budget their money, since they are going to be asked to budget my tax dollars if elected!
BAC
Really great blog post, Taylor, it’s thought-provoking, and informative, and well-argued. Appreciate the work! It’s very persuasive.
Lake Lady says:
28 January 2010 at 1:22 pm
I’m not sure that Independents are a monolith.
LL, I don’t think independents are monolithic. I came to my independent decision years ago, based on policy positions of candidates, and on what their experience / history shows about what they actually do in regard to stated positions. For someone who is quite liberal, that means I end up voting Democratic more often than not, since there are seldom third party candidates available (I voted in TN for about 20 years, now in TX). And there are times I simply won’t vote in a particular race, rather than support someone whose policies differ significantly from my positions.
Basically, I think our two legacy party system is a major factor in the brokenness of our political system and structure, along with the Electoral College and campaign funding.
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
Every vote, everywhere, would be politically relevant and equal in presidential elections.
The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).
The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.
The bill is currently endorsed by over 1,659 state legislators (in 48 states) who have sponsored and/or cast recorded votes in favor of the bill.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Delaware –75%, Maine — 77%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 74% , Massachusetts — 73%, Minnesota – 75%, New York — 79%, Washington — 77%, and West Virginia- 81%. Support is strong in every partisan and demographic group surveyed.
The National Popular Vote bill has passed 29 state legislative chambers, in 19 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.
See http://www.NationalPopularVote.com
BAC says:
28 January 2010 at 1:42 pm
Not denying any of what you say, but it isn’t convincing on why the First Amendment should be denied to things like “Hillary: The Movie.”
Well, LL, “good governance” doesn’t really have anything to do with whether the First Amendment applies or not. As for independents, they’re rising, though I never said “monolith,” so I’m not sure where that came from. But they’re the voters who tip elections. Headline below is from TPM, which comes after independents went to Scott Brown overwhelmingly in Mass., tipping the race, but also why Obama sounded like a conservative last night.
Thanks very much, Noogan.
Thanks for posting that, mvy.
This episode was indeed childish and an embarrassment. In reality there is absolutely no reason for the Supreme Court to be at a SOTU address. Except, for one VERY important reason – Symbolism. They are there to show not only Americans but others (visually) our system of government (three branches, check and balances, democracy, etc.)
If well educated adults can not understand this basic principle, it is indeed a sad example of a failing society.
It was a good speech. But that’s part of Obama’s problem. He gives a good speech. He now needs a coherent and congruent set of policy proposals and accomplishments which go to a central narrative.
For example. Bill Clinton: Putting People First.
“Health care, education, and the environment.”
And from there, Clinton would expand: we’ve expand SCHIP, invested in schools, and set aside federal parks.
Using simple messaging and real achievements. He was crushed in 94 and came back to clobber Dole in 96.
They need someone who knows how to put together an effective marketing campaign (needless to say based on truth and not hucksterism).
I agree that the Hillary camp should not have put pressure on the Elections Commission to ban the showing of “Hillary: the Movie.” I agree that the Supreme Court decision grants far too much freedom to corporations to spend limitless amounts of money to “buy” or destroy candidates. I agree that the Electoral College should be done away with. But, I disagree with allowing more than two parties to operate within the elections process. My preference would be to ban all political party’s and have every office be an at-large affair. (Publicly financed.) We have a republican form of government and not a parliamentary form of government. So allowing more than two political party’s to vie for power is an exercise in futility and would cause more problems than it would solve. Peace
Taylor I was refering to the laat lines of the Turley piece. But I have been thinking about it and I think my initial reaction was too idealistic.
When I said Independents were not a monolith,what I meant was I think there are both liberal amd conservative Independents so it would be unlikely that one leader could satisfy all the Independents.
To Turley’s point, I think we could learn from things that work in other countries. Singapore pays cabinet ministers about $1.5 million US per annum, they are willing to pay for ability. Willingness to pay up also shows that the country thinks that a competent government is important. Do we really think so? Money talks on this one. Similarly, if our elected representatives were well paid we could enforce tough prohibitions against their taking positions with companies they regulate after their public service is done.
As for elections, I rather like the Canadian system which limits contributions, campaign spending. Canadian candidates also have access to free media time. No wonder Canadians have health insurance many of us envy!
The US is very much like a third world country where underpaid public servants have their hands out for bribes as a matter of course. People talk about not wanting to pay the government anything because “they don’t deserve it” and then let unlimited money into the campaign process. You get what you pay for — or what the highest bidder will pay for.
Imhotep~ Well maybe we can hope that two new parties evolve and one or both of the current ones shrivel.
“The first thing that’s needed is for independents to find a worthy standard bearer………
A standard bearer who tells it like it IS…
…..
TAYLOR FOR PRESIDENT!!!!!!!!
Dusting off that initial fog, and after reading a lot of articles and posts on the matter, I’ve reaffirmed my analysis going back years, which is that money is speech. I know that’s very unpopular with the left, but I’m used to playing the contrarian.(Taylor Marsh)
——-
OMG Taylor, this is the conservative position. I don’t know any liberals that agree with this ruling. I am also in wholehearted agreement with the Supreme Court ruling. Corporations are made up of *people* and they have a right by our constitution to express themselves politically–even though this may not be in the best interests of our political culture. Your position has validated for me your basic fairness and understanding of our constitution. I may not be in agreement with all your positions but I can be sure that that you arrive to your positions not from an emotional point of view but through a studied understanding of the issues involved.
I’m not sure I fully understand this issue. Free speech is guaranteed. I get that. What I dont understand is what that has to do with putting or removing a ‘cap’ on spending for campaigns.
I think there should be a cap on spending. It’s ridiculous how much money is spent on these campaigns.
I do not see how this is good for America. Money has power. More money, more power. People with money will put people in office to make them more money. How is this good for Joe and Jane Middle-Class?
mvy says:
28 January 2010 at 3:26 pm
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
I’m glad you put this information here. I’ve followed / supported this effort, though I’m skeptical the powers that be will allow it to happen. Still, good we keep trying.