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Hillary Misrepresents Citizen’s United, Says She’ll Demand Promises To Overturn From Nominees

Hillary Clinton Awarded The 2013 Lantos Human Rights Prize

Hillary Clinton has told a group of supporters that she would require any person she appointed to the Supreme Court to pledge to overturn the Supreme Court’s 2010 decision in Citizens United v. FEC:

Hillary Clinton told a group of her top fundraisers Thursday that if she is elected president, her nominees to the Supreme Court will have to share her belief that the court’s 2010 Citizens United decision must be overturned, according to people who heard her remarks.

Clinton’s emphatic opposition to the ruling, which allowed corporations and unions to spend unlimited sums on independent political activity, garnered the strongest applause of the afternoon from the more than 200 party financiers gathered in Brooklyn for a closed-door briefing from the Democratic candidate and her senior aides, according to some of those present.

“She got major applause when she said would not name anybody to the Supreme Court unless she has assurances that they would overturn” the decision, said one attendee, who, like others, requested anonymity to describe the private session.

If the make-up of the court does not change by 2017, four of the justices will be 78 years of age or older by the time the next president is inaugurated.

Clinton’s pledge to use opposition to Citizens United as a litmus test for Supreme Court nominees echoes the stance taken by Sen. Bernie Sanders of Vermont, who is challenging her for the Democratic nomination.

“If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice,” Sanders said on CBS’ “Face the Nation” on Sunday. “And that nominee will say that we are all going to overturn this disastrous Supreme Court decision on Citizens United because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians.”

On Thursday, Clinton also reiterated her support for a constitutional amendment that would overturn Citizens United, a long-shot effort that is nonetheless popular among Democratic activists.

“She said she is going to do everything she can,” the attendee said. “She was very firm about this – that this Supreme Court decision is just a disaster.”

Clinton’s statements are disturbing on several levels.

First and least surprising of all, there is the fact that Clinton, like most of her fellow Democrats either does not understand the Supreme Court’s decision in Citizen United  at all, or continues to deliberately misrepresent it, and its impact on politics, in order to pander to the base of the Democratic Party. The common critique one hears from these corners, of course, is that the majority in Citizens United gave rights to corporations that they didn’t previously have and that they have somehow upset the “balance” between individuals and corporations. The reality, though, is far different. As law Professor Ilya Shapiro pointed out shortly after the decision was handed down, this criticism ignores a fundamental truth about the nature of corporations, especially when corporate entities engage in activities protected by the First Amendment:

[The argument that corporations lack Constitutional rights] demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

In other words, corporations like Citizen’s United, or the AFL-CIO, or Planned Parenthood, have rights not because they are corporations but because they are made up of, and supported by, individuals who have come together to advance a particular political agenda. You may agree or disagree with that agenda, but that is really of no consequence. Those individuals have the right to work together to make their case. Additionally, the argument that “corporations don’t have First Amendment rights,” which you often hear from Citizens United critics is fundamentally absurd and contrary to how these issues have been viewed under American law for a very long time. Accepting that argument, for example, would mean that The New York Times doesn’t really have First Amendment rights because it is owned by a corporation. Extending it beyond the First Amendment, it would mean that the police could show up at a local business and demand to search the premises without a warrant because “corporations don’t have Fourth Amendment rights.” And, most importantly, it would ignore the numerous ways in which individuals organized as corporate entities engage in what any reasonable person would consider activity protected by the Bill Of Rights.

Perhaps the best defense of the Court’s ruling in Citizens United  was in a recent  speech by Floyd Abrams, perhaps the most preeminent First Amendment attorney in the nation, on the issue of the First Amendment rights of corporations:

So let me personalize this is a bit. It is true that when I think of clients that I or my Firm have represented in First Amendment cases, I think immediately of some individuals – Judith Miller for one, and more recently,New York Times journalist James Risen, who my Firm represented on a pro bono basis.

But I also think of corporations. Not just enormous media corporations but ones like Barnes & Noble, that I represented some years ago with respect to a subpoena issued by the Office of Special Prosecutor Kenneth Starr in an effort to learn what book Monica Lewinsky had purchased as a gift for President Clinton. And of the Brooklyn Museum, which then New York City Mayor Rudolph Giuliani fought to close down because he disapproved of some of its art. And of a motion picture company that sought advice from us as to whether a scene in a much honored film it had made which contained a scene, filmed abroad,  showing the 17 year old star of the film sexually entangled with an older female star could be said to have violated American child pornography laws. And of a number of liberal arts colleges around the country that weighed in in the Supreme Court, in briefs we wrote for them, on the First Amendment impact on educational institutions if affirmative action was ruled unconstitutional. And of a tobacco company I represented in a challenge to the Food and Drug Administration seeking to require them to place on 50% of each of their packs grotesque pictures of dead or dying people who had smoked. And I think of the fact that until last month, when a case I had been actively involved in settled, I devoted a great deal of my time representing a credit rating agency and arguing that when the Department of Justice commenced a civil action against it and only it  arising out of ratings all but identical with those of other rating agencies and my client was the only one that had downgraded the debt of the United States, that the Government had violated the First Amendment because it is not permitted under the First Amendment to retaliate against its critics by using the law in a selective fashion.

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Yet much of the debate about the Citizens United case sounds as if it was shocking for the Supreme Court to have held that corporations receive First Amendment protection at all. The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

Finally, it’s worth noting that there’s simply no evidence that the independent expenditures that Citizens United authorizes have had any negative impact on the political system.

In addition to the misrepresentations about what Citizens United means and the impact it has had on our political system, though, the other disturbing thing about Clinton’s statement is the fact she she is essentially saying that she would only appoint someone to the Supreme Court if they promised to rule in the way she wanted them to on a case that may come before them. In reality, of course, there is no way for her or any other President to enforce such a promise, which goes back to the fact that this is largely mostly about pandering, since Supreme Court Justices serve for life and could not be removed from office merely because they ruled differently than the President who appointed them to desired. More broadly, though, Clinton’s position is troubling because of the quid pro quo that it effectively inserts into the judicial confirmation process and the way that it evidences her intention to be a President who enforces her will by any means necessary. As a matter of judicial ethics, it would be entirely inappropriate for any Judge or Justice to make any promises about how they might rule in a future case, or even to discuss how they might view a particular issue that could come before them. This is why judicial confirmation hearings often end up being a game of weave and dodge in which Senators try to get nominees to answer questions about specific cases, and nominees who do their best to respond in generalities. Clinton’s suggestion that she would impose a litmus test essentially means that she would ask her potential Supreme Court nominees to violate judicial ethics in order get an appointment from her. If a Republican said that he or she would require every nominee to promise to overturn Roe v. Wade, Democrats would justifiably be outraged. They should react exactly the same way to Clinton’s statements here,.

Finally, the most ironic thing about Clinton’s statements about Citizens United is the fact that the case itself essentially involved a public policy organization’s efforts to air a movie about Mrs. Clinton, primarily on DriectTV and some cable outlets, during the 2008 Presidential campaign. The case ended up in court because of the provisions of the McCain-Feingold law that prohibited advertisements by any group not affiliated with a campaign that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. So, essentially, Clinton is arguing that the Federal Government should have prevented someone from being able to air material that was critical of her. Even a Clinton has to recognize the amount of chutzpah it takes to make that argument.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. humanoid.panda says:

    Let’s cut the legal crap at the moment: right now, as we speak, the presidential race is focused on the “Adelson Primary,” the “Koch Primary”, every GOP president is seeking a sugar daddy, Super PACs funded by said sugar daddys are set to take over campaigning, and millionaires (!) are complaining they can’t be heard because candidates spend all their time with billionaires. Are those healthy conditions for any democracy? Did they exist before Citizens United? Do you really think that the small r republicans who wrote the constitution intended any of this? Do you Doug, see any of this and don’t dread the inevitable wave of policy-making by and for the richest 100 families in the country? If you don’t why? If you do, how do you stop it without overturning citizens united?

    Highly-rated. Helpful or Unhelpful: Thumb up 44 Thumb down 7

  2. humanoid.panda says:

    I do agree with you that the whole “corporate personhood” thing is red herring. The Citizens United catastrophe is product of Kennedy’s “no corruption or appearance of corruption” idiocy, not corporate personhood.

    ““independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.””

    Seriously, do you think he cackled with glee having produced this , enjoying how his opponents can’t do a damn thing about anything he says, no matter how ludicrous, or does he actually believe this? Which is more dangerous: a Supreme Court justice with endless contempt for the public, or a supreme court justice with less wits than a 10 year old?

    Highly-rated. Helpful or Unhelpful: Thumb up 30 Thumb down 2

  3. Franklin says:

    Finally, it’s worth noting that there’s simply no evidence that the independent expenditures that Citizens United authorizes have had any negative impact on the political system.

    Fails the basic smell test. If political donations had no impact, then nobody would make them.

    Highly-rated. Helpful or Unhelpful: Thumb up 45 Thumb down 3

  4. HarvardLaw92 says:

    Overturn Citizens United v. FEC, and Buckley v. Valeo while you’re at it. Money is not speech.

    We have essentially legalized the bribery of elected officials in this country. That does have a negative impact on the quality of (what these days merely passes for) governance.

    Highly-rated. Helpful or Unhelpful: Thumb up 40 Thumb down 6

  5. gVOR08 says:

    On behalf of Harry Shearer, who may not have a chance to say it,

    I, for one, welcome our new oligarch overlords.

    Like or Dislike: Thumb up 10 Thumb down 1

  6. Mikey says:

    @HarvardLaw92:

    Money is not speech.

    This is certainly a stronger argument against CU than “corporations aren’t people.”

    Like or Dislike: Thumb up 12 Thumb down 0

  7. Modulo Myself says:

    No one really believes the premise of Citizens United. Otherwise, they wouldn’t be talking about donors to the Clinton charity. This is all really about keeping the cash coming. The big fear has to be the rich getting a clue and cutting down their insane donations and making the right-wing hacks work for a living.

    Like or Dislike: Thumb up 11 Thumb down 2

  8. grumpy realist says:

    Yah, you’ve got to dance mighty nimbly around the fact that if money donation == free speech then laws against bribery are pretty hard to argue for. Especially if there’s a history of money flowing to a certain politician to help him get elected and gee, hoocodanode, some regulation favoring the donor “just happens” to get passed.

    What do these people think we are—stupid?

    Like or Dislike: Thumb up 14 Thumb down 1

  9. gVOR08 says:

    @gVOR08: I’m feeling a little guilty about injecting levity. Yes, the issue is not just Citizens United, but if we continue as we are with campaign finance and lobbying, we can kiss off whatever shred of small d democracy we still have left in this country.

    Like or Dislike: Thumb up 8 Thumb down 1

  10. Gustopher says:

    Corporations aren’t people coming together, they are assets coming together with a charter to control the behavior of those assets. The people who own the assets are legally separate from the corporation.

    We don’t let corporations vote, and we don’t let them hold office. They don’t face jail time when they are caught breaking the law.

    We don’t let them practice a religion, in the vast majority of cases. Tightly held corporations can (something that I think was decided wrongly…), but large publicly held corporations cannot.

    We already limit their rights. The question isn’t whether to limit their rights, it is which rights to limit, and by how much.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 2

  11. superdestroyer says:

    @HarvardLaw92:

    So your argument is that the MSM should decide who wins and loses elections? So who does giving more political power to Mika Brzezinski and George Stephanopoulos really make things better. Does Sheldon Adelson really have more political power than Stephen Colbert?

    As long as the federal budget is more than $3 trillion dollars and the code of federal regulations is more than 100k printed pages, people will try to influence the government.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 24

  12. Paul L. says:

    @Gustopher:
    Corporations are not people so the Government can demand any record from them woth out violating the 4th.

    So the NSA data collection does not need the Patriot Act and is completely legal.

    A Question for Critics of Citizens United: Did Corporations Have A Right To Join The SOPA/PIPA Blackout?

    Like or Dislike: Thumb up 1 Thumb down 5

  13. Modulo Myself says:

    @Paul L.:

    Claiming that corporations are not people does not mean that corporations do not have rights. It just means that corporations are not congruent to people.

    Like or Dislike: Thumb up 13 Thumb down 1

  14. HarvardLaw92 says:

    @superdestroyer:

    So your argument is that the MSM should decide who wins and loses elections?

    Glad you brought that up.

    Meet the late & lamented Fairness Doctrine, together with the personal attack rule and the political editorial rule.

    Any wonder that the decline in the quality of governance in this country pretty neatly correlates with these things having gone away?

    Hot debate. What do you think? Thumb up 16 Thumb down 6

  15. HarvardLaw92 says:

    @Paul L.:

    Corporations are not people so the Government can demand any record from them woth out violating the 4th.

    Generally speaking, yes, this is true. Corporations do not enjoy the same degree of 4th Amendment protections afforded to individuals. Note, that means less, not none.

    All that is typically required to obtain third-party records is a subpoena compelling the production of business records, and those do not require probable cause.

    So the NSA data collection does not need the Patriot Act and is completely legal.

    Yes, and yes.

    Like or Dislike: Thumb up 7 Thumb down 4

  16. Gustopher says:

    @HarvardLaw92:

    Money is not speech.

    The problem isn’t that money is speech, it is that money is the only speech that isn’t regulated.

    You cannot sit in front of someone’s house with a megaphone at 3am — we have noise ordinances. You cannot hold a march without a permit — we limit and regulate speech where it will be a nuisance to others. You cannot get near the rich and powerful at a political convention — we stick protesters in free speech zones located far from whatever they are protesting.

    I would be perfectly happy if people could spend unlimited funds supporting a candidate for office, but it was limited to expenditures far outside the area where any vote occurs. Ads supporting a governor in New York, but only played in Maine and Oregon. Independent political ads about a presidential candidate, but only in Puerto Rico.

    Guam — the free speech zone for political donations!

    Like or Dislike: Thumb up 13 Thumb down 3

  17. Paul L. says:

    @HarvardLaw92:
    You must be with the FBI who believe that no due process is required for a subpoena.

    National security letter

    Like or Dislike: Thumb up 0 Thumb down 8

  18. Modulo Myself says:

    @superdestroyer:

    Sheldon Adelson is the cable company who delivers Stephen Colbert to your screen. He’s not a popular or smart individual but he’s the medium. Comparing the two is apples and oranges, like a paper mill to Marcel Proust.

    Like or Dislike: Thumb up 3 Thumb down 2

  19. HarvardLaw92 says:

    @Paul L.:

    The recipient of an NSL has the right to challenge it in court (and no, not in a FISA court. A regular US District court).

    We call that due process.

    It’s worth noting for purposes of context that NSA’s collection of metadata occurs / has ocurred under court order (i.e. signed by a judge) , not under administrative subpoena.

    Like or Dislike: Thumb up 5 Thumb down 3

  20. Paul L. says:

    @HarvardLaw92:

    NSA’s collection of metadata occurs / has ocurred under court order (i.e. signed by a judge) ,

    What is the Judge’s name? (for public shaming)

    Like or Dislike: Thumb up 0 Thumb down 4

  21. HarvardLaw92 says:

    @Paul L.:

    Roger Vinson, among others. He’s the judge who signed the court order leaked by Snowden re: Verizon.

    You do get that FISA judges are just sitting US District Court judges who wear an additional hat, not some ultra secret cabal of unnamed shadowfolk, correct?

    The list of judges who make up the court isn’t exactly a secret

    Like or Dislike: Thumb up 11 Thumb down 3

  22. Franklin says:

    So what I’m gathering here is the Constitution “sort of” applies to corporations “sometimes,” when it makes sense to do so. And I actually agree with that approach (although you really do have to take some serious leaps of logic to determine that individual speech is equivalent to corporate money).

    But none of this explains why corporations can give unlimited donations but individuals can’t.

    Like or Dislike: Thumb up 2 Thumb down 0

  23. Jenos Idanian #13 says:

    I’m old enough to remember when imposing litmus tests on judicial nominees was TEH WORST THING EVAR. Oh, for the good old days…

    Like or Dislike: Thumb up 5 Thumb down 9

  24. HarvardLaw92 says:

    @Franklin:

    But none of this explains why corporations can give unlimited donations but individuals can’t.

    Corporations are not permitted to make hard money contributions to political candidates in federal elections. Many states impose this limitation as well.

    CU was never about hard money contributions. It’s about soft money.

    Like or Dislike: Thumb up 4 Thumb down 3

  25. Paul L. says:

    @HarvardLaw92:

    You do get that FISA judges are just sitting US District Court judges who wear an additional hat, not some ultra secret cabal of unnamed shadowfolk, correct?

    Yes. But I have the uninformed extremist opinion they are just a rubberstamp.

    Like or Dislike: Thumb up 0 Thumb down 3

  26. humanoid.panda says:

    @Franklin:

    But none of this explains why corporations can give unlimited donations but individuals can’t.

    This is inaccurate: invdividuals can give unlimited sums to Super PACs.

    Your confusion is exactly why the whole “corporate speech” issue is a red herring. Sheldon Adelson is a person, not a corporation. And yet, a political culture that gives Sheldon Adelson veto power over GOP policy in the Middle East beacuse he can throw a 100 million dollars against a candidate that doesn’t tow the line is deeply, nihilistically corrupt. Money is the problem, not the exact judicial status of the entities donating it.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  27. Modulo Myself says:

    It’s sublime how Doug can follow a post about ethical questions raised by a donation to a charity connected to Hillary Clinton with a post about how Hillary Clinton should refrain from criticizing the ethical outcomes of a ruling allowing corporations to donate money to nebulous PACs.

    Highly-rated. Helpful or Unhelpful: Thumb up 28 Thumb down 1

  28. HarvardLaw92 says:

    @Paul L.:

    Being able to admit you have a problem with being uninformed and extremist is a good first step.

    Helpful hint – the majority of applications for warrants & court orders are typically EVENTUALLY approved by all courts, for a variety of reasons. Chief among these?

    1) It’s not a one-shot process. If your initial application is denied, you have the opportunity to rework / redefine it in order to take another shot at approval.

    2) The people writing them, generally speaking, know what they can and can’t get approved – in other words, they know the limits of what’s likely to be approved before they make the request, so they limit / constrain those requests in order to increase their chance of approval.

    Before we go any further, you understand and accept that you have no 4th Amendment expectation of privacy with regard to virtually all third-party business records which contain information about you, correct?

    Like or Dislike: Thumb up 6 Thumb down 4

  29. humanoid.panda says:

    Here is a little example:


    “There is no doubt that in the last years, the last decades that there is a kind of affinity between Likud and the GOP,” said Dani Dayan, the former leader of the Yesha Council, the umbrella organization of Israeli settlements in the West Bank. “An ideological affinity.”
    For Dayan, who advocates for the kind of settlement expansion that has repeatedly been condemned by the Obama administration, a Republican administration could translate into less pressure to stop settlement growth in the West Bank. He cited the example of how Chris Christie had to walk back his use of the term “occupied territories” last year. “It’s a fundamental incident because when a mainstream Republican candidate retracts the words ‘occupied territories,’ I don’t care why he did it, that’s a real change.”

    The incident Dayan refers to is a speech Christie gave to the Republican Jewish Coalition: basically, Sheldon’s little club, in which he, accurately, described the West Bank as occupied territory. Following that speech, Christie was forced to issue a grovelling apology to Adelson.

    Doug: does seem right to you? Is this how politics in a republic should operate? How the hell can you say that CU didn’t harm the political system in the face of monstrosities like that?

    Like or Dislike: Thumb up 12 Thumb down 0

  30. HarvardLaw92 says:

    @humanoid.panda:

    I don’t see any solution to the problem other than a complete and total ban on private political expenditure, of any nature and from whatever sources, and public financing of political campaigns.

    Like or Dislike: Thumb up 4 Thumb down 3

  31. Modulo Myself says:

    @humanoid.panda:

    I think it’s speech that’s the red herring. Adelson is not speaking. He’s buying. None of this is new. The unique thing about our political culture isn’t that people are bought or that propaganda can be paid for, but the supposed helplessness we are supposed to feel when confronted with it.

    Like or Dislike: Thumb up 4 Thumb down 0

  32. Jack says:

    So, Republicans can come out of the closet with their litmus test requiring judges to overturn the PPACA and everyone would be OK with this, right?

    Like or Dislike: Thumb up 1 Thumb down 10

  33. HarvardLaw92 says:

    @Jack:

    Whatever gave you the idea that it as a litmus test (along with their bigger goal – overturning Roe) was ever a mystery with respect to Republican judicial nominations in the first place?

    Like or Dislike: Thumb up 13 Thumb down 6

  34. humanoid.panda says:

    @HarvardLaw92: But how would you define “political expenditures”? What if someone buys airtime to lobby for a policy position, but not to support a candidate? There has to be a middle path between total ban and CU free-for-all..

    Like or Dislike: Thumb up 2 Thumb down 0

  35. Jack says:

    @HarvardLaw92:

    I don’t see any solution to the problem other than a complete and total ban on private political expenditure, of any nature and from whatever sources, and public financing of political campaigns.

    So, George Soros, Buffett, Bloomy, Gates, et al will be forced to spend there money outside of politics? I doubt that.

    Just the six biggest union donors in American politics combined give 15 times more money than the Koch brothers have – and, of course, that money went almost exclusively to Democrats.

    Yes, Citizens United being struck down would have prevented all of this. Eye Roll.

    Like or Dislike: Thumb up 4 Thumb down 10

  36. HarvardLaw92 says:

    @humanoid.panda:

    I mean an absolute across the board ban on all private political expenditure. “Lobbying for a policy position” exceptions are how we ended up with soft money in the first place. They’re just a back-door way of supporting candidates without saying their names.

    If we expect to unscrew this mess, and that’s saying something, then it has to be an all or nothing proposition, IMO. If someone wants to lobby for a policy position, then run for office.

    Like or Dislike: Thumb up 2 Thumb down 4

  37. HarvardLaw92 says:

    @Jack:

    Just the six biggest union donors in American politics combined give 15 times more money than the Koch brothers have – and, of course, that money went almost exclusively to Democrats.

    Source, please.

    Like or Dislike: Thumb up 6 Thumb down 3

  38. humanoid.panda says:

    @Jack:

    Just the six biggest union donors in American politics combined give 15 times more money than the Koch brothers have – and, of course, that money went almost exclusively to Democrats.

    Ah, that famous canard! First off, that figure refers only to direct contributions to political campaigns- not Super PACs and other vehicles, which is where the Kochs leave their mark. In the coming elecction, the Kochs declared that they will spend 800 million dollars. You really think that unions are going to fork anything near that?
    Second, the top six unions in the country represent millions of voters. The Kochs are two guys.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  39. Hal_10000 says:

    @humanoid.panda:

    Did they exist before Citizens United?

    Yes.

    Once again, let’s remind ourselves of what Citizens United was all about: whether the government should be able to forbid someone from showing a political anti-Hillary movie within thirty days of a primary. How is that not a free speech issue?

    Like or Dislike: Thumb up 4 Thumb down 0

  40. humanoid.panda says:

    @HarvardLaw92: He is being a part of the great conservative puke funnel of misinformation: http://www.republicreport.org/2014/unions-koch/

    In her column, “The Really Big Money? Not the Kochs,” Strassel cites a Center for Responsive Politics list to claim that unions “collectively spent $620,873,623 more than Koch Industries” on political races. Of course, if you actually visit this page on the CRP website, the list runs below a disclaimer noting that it does not include certain Super PAC spending or most undisclosed dark money spending, the preferred route for the Koch brothers for decades. In fact, the CRP site notes that union spending might appear inflated since unions traditional PAC spending is coupled with outside Super PAC spending. For the purposes of this chart, union spending is inflated compared to the giving of companies like Koch or Super PAC donors like Sheldon Adelson.

    For the last election, Koch PAC spent $4.9 million in disclosed contributions (figures that appear on the chart referenced by Strassel). But they also spent over $407 million on undisclosed campaign entities, which does not show up in the CRP chart.

    – See more at: http://www.republicreport.org/2014/unions-koch/#sthash.rFkMqaOo.dpuf

    The sad thing is that Strassel gets paid for her efforts. Jack is doing his part for free.

    Like or Dislike: Thumb up 12 Thumb down 0

  41. John says:

    Malcolm L. Stewart, representing the government, was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. He answered that such an endorsement would constitute “express advocacy” and therefore the corporation could only fund the publication of the book through a political action committee. “And if they didn’t, you could ban it?” asked the chief justice. “If they didn’t, we could prohibit publication of the book,” Stewart replied.

    Like or Dislike: Thumb up 2 Thumb down 0

  42. humanoid.panda says:

    @Hal_10000: Rich people always had influence on politics, and will always will. However, Citizens United created something that didn’t exist since the 1970s: a channel to funnel unlimited funds, more or less anonymously.

    Once again, let’s remind ourselves of what Citizens United was all about: whether the government should be able to forbid someone from showing a political anti-Hillary movie within thirty days of a primary. How is that not a free speech issue?

    That was the original issue, yes. However, the decision was about far more than that: it basically declared the government has no right to regulate politiacl donations, unless they are given directly to candidate campaigns. In a similar way, Dred Scott was a narrow issue that could have been resovled without touching on basic constituional questions, but was used by the Supreme Court majority to answer questions it didn’t have to adress. SCOTUS can do that at will…

    Like or Dislike: Thumb up 8 Thumb down 1

  43. michael reynolds says:

    Our government is now as corrupt as Nigeria, the difference being that we take the extra step of dressing our fall with legality. The very idea that we now have an Adelson primary should make Americans want to vomit.

    The fact that Doug remains so blind to it, so passive in the face of the loss of his country, so willing to tug his forelock in the direction of every passing billionaire and revel in his serfdom, is enough to make anyone sick who loves this country and cares about liberty.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 2

  44. michael reynolds says:

    By the way, this is libertarianism at its finest: a bunch of blather about liberty followed by kowtowing to anyone with a fat wallet.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 1

  45. grumpy realist says:

    Well, this is the system the First Amendment purists have created. Pity the rest of us have to live in it as well.

    I would follow HarvardLaw92’s suggestion and ban any non-public-funding of election campaigning. Create an election equivalent of C-span and insist that politicians can only interact with the public via 60-minute speeches dressed in 1950-era suits and standing in front of a grey screen and filmed in black and white. Get snot-nosed master debaters from high school to interview them with sets of pre-determined questions. Make political camplaigns for POTUS boring, boring, boring. (I’m thinking of Austrian election-level boring.) Then maybe the media can go flitter off after something else that interests its little pea-brain and stop treating politics as 24-hr circus entertainment.

    Like or Dislike: Thumb up 7 Thumb down 0

  46. HarvardLaw92 says:

    @grumpy realist:

    Then maybe the media can go flitter off after something else that interests its little pea-brain and stop treating politics as 24-hr circus entertainment.

    And therein lies the root of the problem – a 24/7/365 entertainment cycle disguised as “news” and aimed at a nation of ADD’ers can only result in perpetual election campaigns – which is exactly what we have.

    Unless we’re willing to break that downward slide, why not just call it what it is – and put the candidates in the Colosseum, toss in a few swords and whomever gets the most 1-900 number “votes” (brought to you IN LIVING COLOR!) gets to be president. We’re not really that far removed from that state of affairs.

    Like or Dislike: Thumb up 6 Thumb down 4

  47. Jack says:
  48. HarvardLaw92 says:

    @Jack:

    That doesn’t include funds funneled into 501(c)(4)’s and 501(c)(6)’s, which the Kochs are exceedingly fond of doing. Get back to us when you can get those numbers.

    (Hint – you never will, nor will anybody else. Legally, they don’t have to be disclosed).

    Like or Dislike: Thumb up 12 Thumb down 3

  49. Jack says:

    @HarvardLaw92: So, because no one can get the numbers you ask for, you want to completely discount the numbers we can get, convenient.

    Like or Dislike: Thumb up 3 Thumb down 8

  50. Hal_10000 says:

    @humanoid.panda:

    The thing is that every time we get some campaign finance reform, our government ends up getting more corrupt. I remember when McCain-Feingold was passed and McCain chortled about “so-called free speech” rights. Did our government then get less corrupt? Or more?

    The simple fact is that rich people are going to be buying into government because our government is so powerful and punishes those who don’t play the Washington game. Look around — Microsoft, Ebay, Paypal, Apple — these companies wanted to avoid getting involved in lobbying but found that it was a disastrous decision. People in Washington openly criticized the tech giants for being reluctant to play politics in a “who do they think they are?” way. Now they are all players. The culture in Washington is diseased. Overturning Citizens United isn’t going to change that.

    Like or Dislike: Thumb up 3 Thumb down 3

  51. Mikey says:

    @Hal_10000:

    The culture in Washington is diseased. Overturning Citizens United isn’t going to change that.

    I’m coming to believe CU was actually a positive thing, because it has brought what was formerly done in secret out into the open.

    Anyone who thinks the mega-rich didn’t exert hugely disproportionate influence prior to CU is very sorely mistaken. CU has just enabled us to see direct proof.

    Like or Dislike: Thumb up 2 Thumb down 1

  52. michael reynolds says:

    @HarvardLaw92:

    You equate unions representing millions of workers with billionaires representing themselves. Then when @HL92 points out the obvious fact that the Koch’s hide their donations, completely obliterating your ridiculous equation, you shrug.

    Like or Dislike: Thumb up 10 Thumb down 3

  53. michael reynolds says:

    Sorry, that was supposed to be directed to Jack, obviously.

    Like or Dislike: Thumb up 5 Thumb down 0

  54. humanoid.panda says:

    @Jack: Again, are you a liar, or a witless victim of brainwashing. The whole sthick of the Kochs is that only tiny slice of their political contributions are transparent. The rest is funnelled via dark money:

    For the last election, Koch PAC spent $4.9 million in disclosed contributions (figures that appear on the chart referenced by Strassel). But they also spent over $407 million on undisclosed campaign entities, which does not show up in the CRP chart.

    Republic Report broke down the figures for the last election and found that Koch groups alone spent more than double the combined political spending (including to undisclosed group) for the top ten unions combined….

    This undisclosed campaign system is nothing new for the Koch brothers. In 1995 and 1996, Koch set up a shell company called Triad Management to spend millions in secret money to help the Republican Party. Of course, this type of spending never shows up in databases like the one cited by Strassel.

    – See more at: http://www.republicreport.org/2014/unions-koch/#sthash.gHTLivG8.dpuf

    Seriously, there are only two options here: your source is lying to you, and you were not aware of it, or you know the source is lying and derive enjoyment from spreading that lie. Which one is it?

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 1

  55. Modulo Myself says:

    @Mikey:

    CU has made prominent the Tea Party/pro-Israel billionaire who spends enormous amounts on falsehoods. The main beneficiaries have been liars who needed to buy the infrastructure to make their lies plausible. Hillary Clinton’s wealthy donors aren’t going to care because they don’t need to buy this infrastructure. If Apple, for example, wants to lobby the American government about ways to repatriate foreign revenue without being taxed, they don’t have to invent an infrastructure of fake tax legal experts. They just lobby the government because their case is understandable, even to those who oppose it. Because it’s understandable there’s a system.

    There was never a system for the angry person who wanted Obama to keep his socialist’s hands out of Medicare. Outside the bubble, it never made any sense. But throw enough money around and pay people to pretend that it made sense, and you can create the illusion that it does make sense.

    .

    Like or Dislike: Thumb up 8 Thumb down 1

  56. stonetools says:

    I’m going to go on the record and say that Citizens United is the worst Supreme Court decision since Plessy v Ferguson.It was as if the court looked at the US political system in 2010 and said, “What’s the absolute worst thing we can do to the system to make it look like a system of legalized bribery? That’s exactly what we will do!”

    I only hope we don’t have to wait 58 years before it’s reversed.As for Floyd Abrams, I’m sorry but the man is naive at best and an out of touch ideologue at worst.Let’s look at the end of his speech :

    Let me put it another way. I think Mr. Caplan is conflating what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. Certain types of inequality might be dealt with by greater enforcement of – or significant amendments to – our civil rights laws. Other more economically rooted forms of inequality might be dealt with by raising taxes, enacting stricter antitrust laws, limiting the size of certain corporations – choose your own new world. But what the First Amendment forbids the government from doing is abridging speech.

    Now who the hell do you think is doing their very best to prevent us from broadening civil rights or dealing with inequality? Why, the very oligarchs and corporations that benefit from this license to purchase the politician of their choice, which is what Citizens United has given to these oligarchs.

    Finally, it’s worth noting that there’s simply no evidence that the independent expenditures that Citizens United authorizes have had any negative impact on the political system.

    There is none so blind as will not see. Hey, Doug, if Citizens United was just about speech, why didn’t Roberts extend it to judicial elections(Williams-Yulee vs Florida Bar)? After all,wasn’t the judge just asking the lawyers to express their right to free speech by contributing to her campaign? Just a bunch of lawyers discussing politics, right?

    Like or Dislike: Thumb up 9 Thumb down 1

  57. @HarvardLaw92:

    Suppose we passed a law saying that while abortions are legal, no one may recieve payment for performing one, nor spend money on supplies or facilities to performing them.

    Would you seriously accept an argument that this does not constitute an impediment to abortion rights because “LOL, money is not an abortion!”

    Like or Dislike: Thumb up 3 Thumb down 1

  58. Franklin says:

    HL92 and humanoid.panda – Thanks for the clarification on my unlimited donation mistake.

    @Jenos Idanian #13: Actually, I’m going to at least partially agree with Jenos here. For one thing, while this issue is important, it’s not the only important issue. But second, decisions are to be made by judges judging the evidence before them. They’re not elected or selected to make a particular judgment.

    Like or Dislike: Thumb up 4 Thumb down 0

  59. stonetools says:

    BTW, not only do the vast majority of Americans oppose Cirtizens United in every poll done on the issue(isn’t it funny how Doug never cites those polls?), but here is the latest poll on the Supreme Court:

    Only about a third of Americans believe the Supreme Court decides cases based on the law alone, according to new polling data about the court.

    According to the new poll, Americans believe the Supreme Court justices are political, letting their personal views sway their decisions — an opinion held across party lines. And more than three-quarters of Americans oppose the Citizens United ruling four years after the Supreme Court handed down the landmark campaign finance decision.

    So not only does the public believe politics are corrupted by money-the public believes that the court itself is corrupt-or at least that its decision making is based on politics.
    So plainly, Citizens United has negatively affected Americans’ view of the political system, and of the Supreme Court-proving, I guess, that you can’t fool all the people all the time.

    Like or Dislike: Thumb up 4 Thumb down 1

  60. Mikey says:

    @Modulo Myself:

    CU has made prominent the Tea Party/pro-Israel billionaire who spends enormous amounts on falsehoods.

    It has also has made the need for discussion of campaign funding, its problems and necessary reforms, both more important and more prominent.

    Like or Dislike: Thumb up 3 Thumb down 0

  61. Rob Prather says:

    I would be pretty happy if we could just get the DISCLOSE Act passed. Of course, Republicans are saying disclosure is “speech suppression” in large part because of the ridiculous CU decision.

    Like or Dislike: Thumb up 11 Thumb down 0

  62. Ben Wolf says:

    @Stormy Dragon:

    Suppose we passed a law saying that while abortions are legal, no one may recieve payment for performing one, nor spend money on supplies or facilities to performing them.

    Would you seriously accept an argument that this does not constitute an impediment to abortion rights because “LOL, money is not an abortion!”

    Firstly, your implicit assumption that everything in life consists of economic transactions is rejected.

    Secondly, politicians are already paid by the state to do their damned jobs. If abortion providers were paid by the state to perform abortions then I would say no, banning any form of private payment would not represent an impediment to abortion rights.

    Like or Dislike: Thumb up 4 Thumb down 1

  63. grumpy realist says:

    @HarvardLaw92: I’d vote for that system if we could throw in a few lions and tigers as well.

    And snakes. Lots and lots of snakes.

    Like or Dislike: Thumb up 0 Thumb down 0

  64. stonetools says:

    @Rob Prather:

    I note Doug is silent on the fact that the Supreme Court judges themselves felt that disclosure laws were necessary to preserve the appearance of propriety. Eight of the Citzens UNited judgesupheld disclosure requirements.

    An often-overlooked part of the Citizens United decision actually upheld disclosure requirements, saying that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

    The dissenter ? Clarence Thomas, whose wife just happens to be a lobbyist.

    The Republican Party, of course, has blocked any and all attempts at broad disclosure requirements, which means that secret donors, and indeed foreign donors, can spend any amount of money to buy any politician they want, attaching any condition they want, with no one the wiser, really.

    Like or Dislike: Thumb up 6 Thumb down 0

  65. stonetools says:

    Now that Doug has affirmed Citizens United as pure First Amendment goodness, I trust that we will see no further posts on the possible improprieties of charitable donations to the Clinton Foundation. If there is nothing wrong with billionaires directly buying political candidates with PAC contributions, there can clearly be nothing wrong with Clinton Foundation donations, right? Right?

    Like or Dislike: Thumb up 14 Thumb down 0

  66. @Ben Wolf:

    Firstly, your implicit assumption that everything in life consists of economic transactions is rejected.

    Nearly everything in life IS economic transactions. Even if the patients aren’t paying for the abortions, someone is. Someone paid the medical and support staff to work there. Someone paid for the building the clinic is in. Someone paid for the supplies the clinic uses.

    Without the permission to make those payments, activity at anything beyond the most minimal scale becomes nearly impossible.

    Heck, look at this site. Someone is paying the cost of hosting it on a server and for the server’s internet connectivity. If we truly go with HL92’s “complete and total ban on private political expenditure, of any nature and from whatever sources”, this site would have to be shut down.

    Like or Dislike: Thumb up 1 Thumb down 0

  67. wr says:

    @Stormy Dragon: If you believe allowing billionaires to spend unlimited amounts of money to purchase elections is a good thing, why not make that argument, instead of inventing silly straw arguments?

    Like or Dislike: Thumb up 2 Thumb down 0

  68. stonetools says:

    @wr:

    Note how Citizens United defenders get all abstract-y when they argue about the rightness of the decision? The raw reality of right wing billionaires and huge corporations buying politicians that will give them tax cuts and amend laws so that they can pollute the environment and screw over their employees? All that disappears behind a fog of talk about “rights,” strained analogies , and other sophistry, as libertarians defend the super rich.

    Like or Dislike: Thumb up 1 Thumb down 0

  69. superdestroyer says:

    @stonetools:

    That progressives always frame Citizens United as beneficial only to the right demonstrates that the left knows that they control most of the media in the U.S along with the public sector and academia. The left is not happy with just having a massive demographic edge when it comes to elections but wants the change the rules so that they can determine want is said during an election, who can say it, and who it can be said.

    It would be nice if at least one progressive would admit that they want to change the rules on political speech so that they U.S. will become a one party state faster than the current time table.

    Like or Dislike: Thumb up 0 Thumb down 1

  70. wr says:

    @superdestroyer: “It would be nice if at least one progressive would admit that they want to change the rules on political speech so that they U.S. will become a one party state faster than the current time table.”

    It would also be nice if unicorns flew down from the sky and farted gold. But since both this and your concept are ludicrous fantasies, neither is going to happen.

    Like or Dislike: Thumb up 1 Thumb down 0

  71. al-Ameda says:

    @Jack:

    HarvardLaw92: So, because no one can get the numbers you ask for, you want to completely discount the numbers we can get, convenient.

    What numbers?

    Like or Dislike: Thumb up 0 Thumb down 0

  72. HarvardLaw92 says:

    @al-Ameda:

    The numbers with regard to how much money the Kochs, et al, actually expend on dark money campaign tactics like 501(c)(4)’s and 501(c)(6)’s. The anonymity with respect to donors afforded organizations operating under those exemptions prevents the true extent of their political spending from ever being known.

    Like or Dislike: Thumb up 0 Thumb down 1

  73. superdestroyer says:

    @Modulo Myself:

    The real difference is that Sheldon Adelson mainly supports candidates that lose and supports a party that is irrelevant when it comes to policy or governance in the U.S.

    On the other hand, Jon Stewart and Stephen Colbert actually influence the dominant political party in the U.S. and give voice to leaders in that party that lead to policy changes in the U.S.

    But since an irrelevant opposition party exists in the U.S., progressives refuse to think about how politics actually work and who is actually influencing policy.

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