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.

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