Citizens United

Are You Seeing The Pattern Yet?


The people at the not-for-profit Citizens United were on a mission. They hated Hillary Clinton. A lot. They filmed what they called a documentary, Hillary: The Movie, and planned to release it in 2008 in an effort to submarine her candidacy for the Democratic Party nomination for the presidency. They wanted to air their hit job film just prior to primary elections in the various states. But they had a problem.

One of the provisions of the 2002 Bipartisan Campaign Reform Act (commonly called McCain-Feingold) banned the airing of corporate funded “electioneering communication” for the 30 days before a primary election and for 60 days prior to a general election. The Citizens United people wanted to blanket the airways with their electioneering communication attack piece all the way through the primaries, so in December 2007 they filed suit to challenge that provision of McCain-Feingold. If they won, they would be able to run their electioneering film in the then-upcoming campaign season of 2008.

The district court refused their application for injunctive relief. In the appeals court Citizens United claimed their 90-minute film was a documentary, not electioneering. The court easily saw through that smoke screen and refused that argument, stating what was perfectly clear to everyone, that it was not a documentary film, but a 30-minute attack ad. It was an attempt to affect the election (the very definition of electioneering). Further, the court saw that their intended use of the movie was expressly at odds with established law.

On the case went to the Supreme Court (Citizens United v. FEC), which decided in favor of Citizens United in January 2010, overturning the lower court’s ruling. The court declared that the corporate electioneering communications restrictions of McCain-Feingold were unconstitutional and Citizens United could air their film as they wished. That should have been the end of the case, but it wasn’t.

Chief Justice John Roberts directed the attorneys to return to the court and re-litigate the case, this time specifically testing the rights of corporations and speech equivalency. It’s important to note that those issues were not part of the case brought by Citizens United.

—->  In other words, the court fabricated an entirely new case focused on issues that were not in contest in the Citizens United case.
That is not supposed to happen.
.

And in this fabricated case, the Supreme Court decided in a 5-4 vote that corporations have full First Amendment rights.

Let me be clear about this:

—-> The Court majority effectively declared that non-sentient, non-human corporations have all the rights of flesh and blood human beings.
Like you
.

Making things worse, Justice Anthony Kennedy, writing for the majority, reaffirmed that money was effectively the same as speech. He declared that the First Amendment doesn’t allow prohibitions of speech even if the speaker is a corporation.

And that started a deluge of corporate money – dark money – into our politics that persists today.

To be sure there were earlier cases that chipped away at our protection from big money influence in our politics, including Buckley v. Valeo, which effectively declared that money is the same as speech. That assertion, of course, is ridiculous.

While money used for a campaign contribution certainly enables speech, that doesn’t make it the same as speech. Indeed, if you follow the Court’s Buckley logic, they’d have you believe that if I use money to buy a car, that money is the same as a car. Utter nonsense.

Money is property that is used in exchange for other things. That doesn’t make it the same as those other things. Nevertheless, the Roberts court wasn’t able to or refused to see the difference and the Citizens United case became the back breaker of integrity in our elections.

Key Point: That decision was driven by John Roberts legislating from the bench in a case that was not even brought before the court by a plaintiff! One has to wonder if this was a predetermined decision he wanted to reach. Otherwise, where did that secondary case come from?

Put a bookmark here.

Professor Heather Cox Richardson reported this in her July 6 edition of Letters From an American:

“Both the Organization of American Historians and the American Historical Association, the flagship organizations of professional historians in the U.S., along with eight other U.S. historical associations (so far), yesterday issued a joint statement expressing dismay that the six Supreme Court justices in the majority in the Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade ignored the actual history those organizations provided the court and instead ‘adopted a flawed interpretation of abortion criminalization  .  .  . ‘ “

” ‘[t]hese misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future, ‘an undermining of the imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion…does not meet those standards.’ ” [emphasis mine]

Translation: the Supreme Court ignored evidence that was inconvenient to the decision the justices wanted to make (i.e. overturn Roe). As in the manufactured case derived from the Citizens United law suit, the court clearly had its mind made up to push the doctrines it wanted, irrespective of precedent, facts and even without having a case before it.

And that radicalization is the true danger of this gerrymandered Supreme Court. It appears these justices want to roll back rights and progress 90 – maybe 150 – years.

Are you seeing the pattern yet?

You better see it, because this Court has already invited yet more cases to give them the opportunity to end yet more rights of the people.

For further reading, review Harry Littman’s troubling forecast of Supreme Court malfeasance.

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Special Note: According to an ongoing Gallup survey, public confidence of the Supreme Court has plummeted down to 25%. And this study update was conducted before any of the end-of-term Court decisions were announced, including Dobbs. A fresh study will almost certainly show a sharp drop from the already historically low public confidence in the Court.

A similar drop in confidence is what Justice John Paul Stevens predicted in his blistering dissenting opinion in the Citizens United decision in 2010. As you can see, that is what happened.

Click me for the story

For Nerd Readers

You must read Jeffery Toobin’s explanation of this sordid story in The New Yorker. For a sampling, here’s a section of Toobin’s comments on Justice John Paul Stevens’ dissent in the Citizens United case:

So it was especially galling that the Court converted Citizens United from a narrow dispute about the application of a single provision in McCain-Feingold to an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.

Or, as he put it in his dissenting opinion, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” [emphasis mine] The case should have been resolved by simply ruling on whether McCain-Feingold applied to “Hillary: The Movie,” or at least to nonprofit corporations like Citizens United.

Stevens was just warming up. His dissent was ninety pages, the longest of his career. He questioned every premise of Kennedy’s opinion, starting with its contempt for stare decisis, the rule of precedent. He went on to refute Kennedy’s repeated invocations of “censorship” and the “banning” of free speech. The case was merely about corporate-funded commercials shortly before elections. Corporations could run as many commercials as they liked during other periods, and employees of the corporations (by forming a political-action committee) could run ads at any time.

Stevens was especially offended by Kennedy’s blithe assertion that corporations and human beings had identical rights under the First Amendment. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” Stevens wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress and the courts had drawn distinctions between corporations and people for decades, Stevens wrote, noting that, “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act.”

As for Kennedy’s fear that the government might regulate speech based on “the speaker’s identity,” Stevens wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” And Stevens, a former Navy man, could not resist a generational allusion: he said that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.” (Stevens’s law clerks didn’t like the dated reference to Tokyo Rose, who made propaganda broadcasts for the Japanese, but he insisted on keeping it.)

Stevens’s conclusion was despairing. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt,” he wrote. “It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics.

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Our governance and electoral corruption and dysfunction and our ongoing mass murders are all of a piece, all the same problem with the same solution:
.
Fire the bastards!
.
The days are dwindling for us to take action. Get up! Do something to make things better.

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The Fine Print:

  1. Writings quoted or linked from my posts reflect a point I want to make, at least in part. That does not mean that I endorse or agree with everything in such writings, so don’t bug me about it.
  2. There are lots of smart, well-informed people. Sometimes we agree; sometimes we don’t. Search for others’ views and decide for yourself.
  3. Errors in fact, grammar, spelling and punctuation are all embarrassingly mine. Glad to have your corrections.
  4. Responsibility for the content of these posts is unequivocally, totally, unavoidably mine.
  5. Book links to Amazon are provided for reference only. Please purchase your books through your local mom & pop bookstore. Keep them and your town vibrant.

JA


Copyright 2022 by Jack Altschuler
Reproduction and sharing are encouraged, providing proper attribution is given.

Gaming Out the Election


Reading time – 5:25  .  .  .

Friend Mel passed along a link to a USA Today article which reported an exercise that was conducted by both red and blue pundits who gamed out the upcoming election. The report said:

“After gaming out various scenarios, the group said its conclusions were ‘alarming:’ In an election taking place amid a pandemic, a recession and rising political polarization, the group found a substantial risk of legal battles, a contested outcome, violent street clashes and even a constitutional impasse.”

Click through and read the frightening essay after reading this post. It is guaranteed to keep you awake at night. On the other hand, it’s highly likely that nothing in the essay will surprise you.

With any luck, Biden’s team is gaming this out for themselves and is prepared both to defend against Trump’s anticipated outrageous malfeasance and to go on offense to protect the election and the nation.

Trump knows no boundaries, so expect more strategy-free actions to promote himself, like sudden and complete U.S. withdrawal from Afghanistan with absolutely no plan for or consideration of consequences. He would do that just so that he can claim a bigly win right before the election. That’s the kind of thing that has to be gamed out by Biden’s team, because Trump would do even worse. That’s especially important in light of the 20th anniversary of Bush v. Gore. There’s a history lesson from that mess of an election that applies to today.

The question was what to do with the very problematic intermediate Florida election results, a decision that would determine the winner of the presidential election. Have a look at this piece of the dissent to the 5-4 Supreme Court decision in favor of Bush:

“What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. [emphasis mine]”

That was written by Justice John Paul Stevens, with Justices Breyer and Ginsburg concurring.

They were right. Confidence in the judiciary in general has fallen precipitously since that decision. Confidence in the Supreme Court itself dropped 15% following the Citizens United debacle in 2010. That was predicted by Justice Stevens in his blistering dissent and no amount of Justice Scalia’s arrogant certitude could stop the loss of respect for the Supreme Court. Making things worse, Trump has delivered a regular drum beat of infantile tantrums attacking the courts when he doesn’t get his way, further undermining confidence in our judiciary.*

The point of inserting the Bush v. Gore reference is concern about public acceptance of any judicial decision affecting our upcoming election. Indeed, Bush v. Gore was an enormous trust killer for millions of Americans. By extension, it raises concerns for our 2020 election if a judicial decision goes against what Trump supporters want. Indeed, in 2016 Trump predicted violence in the streets if he were to lose the Republican nomination, almost giving permission to his supporters to be destructive.

Bear in mind that he has been undermining the judiciary and stoking violence since 2015. He announced that he would pay the legal fees for supporters at his rallies who physically attack protesters. He told us there were “good people on both sides” in Charlottesville, even as one side was threatening violence. And he had his goons attack Black Lives Matter protesters in 7 cities. Clearly, he encourages violence.

The point is that those dissenting justices in the Bush v. Gore case were right. Judicial decisions that are adverse to Trump are almost certain to be disrespected and rejected by his supporters. That’s driven in large measure because of the loss of confidence in our courts and the disrespect for our system of justice that has been building for years. Trump has orchestrated the worsening of this, fanning the flames of anger and violence.

Speaking to the despair, anger and self-hatred in America, Anne Applebaum wrote in her new book, Twilight of Democracy, quoting Donald Trump:

“You know what solves [this]? When the economy crashes, when the country goes to total hell and everything is a disaster. Then you’ll have  .  .  .  riots to go back to where we used to be when we were great.”

And here we are with a crashed economy and so much is a mess, a disaster even, while at the same time respect for our institutions, including the judiciary and the rule of law, is at such a low ebb. Note, too, how frighteningly close Trump’s prediction of violence is to that of the folks who recently gamed out our upcoming election (see above).

We aren’t just in strange times; we are in times that may transform into physically perilous times. Whatever firmament we used to have has become a leaky boat in a hurricane.

Back to Bush v. Gore for a moment:

In a later full counting of all votes cast in that election as tracked down by numerous investigative reporters Gore won Florida by 537 votes. But Chief Justice Rehnquist had announced the Supreme Court’s decision to stop the counting of votes in Florida, which gave the state and the presidency to Bush. It is accurately said that elections have consequences. So do judicial decisions.

That Gore wasn’t sworn in as president brought us 9/11 (Bush ignored multiple warnings of an imminent attack); two continuing, fraudulently crafted wars (justified by lies too numerous to list); Bush’s refusal to capture Osama bin Laden at Tora Bora, which led to the invasion of Afghanistan and an episodic backward march of the goal posts; the effectively homicidal Katrina response; the financial meltdown of 2008; a decimated State Department and alienated allies; and the grossly expanded national debt through starting two wars and cutting taxes at the same time. All of that and more hinged on a judicial decision.

The conservative Supreme Court justices got their way in the Bush v. Gore case. They also got their way in disemboweling the Voting Rights Act and by supporting states’ actions to create massive voter suppression. Those decisions, complemented by Citizens United and other decisions harmful to We the People undermined confidence in the rule of law. And for the past four years that’s been joined by Trump’s cheating, lying, stoking violence and hatred and even insurrection.

All of that is why it’s so important that Biden’s team is gaming out everything so that they are ready.

We can’t change public trust in the judiciary in just the next 75 days, so there is literally only one way to ensure we protect against further deterioration of our democracy and create a hedge against violence in our streets:

We must vote to create an overwhelming defeat of Donald Trump in November.

If you doubt that, just recall the mobs of angry people who stormed the Michigan and Ohio state houses in May. Many were carrying guns. Many were brandishing semi-automatic weapons. The threat of violence if they didn’t get their way couldn’t have been clearer. And those demonstrations were just to protest efforts to stop Covid-19. In the absence of an overwhelming defeat of Trump in November, what do you think those people and others similarly inclined will do?

The pundits reported in the USA Today piece were gaming out the upcoming election. But this is no game. This is life and death for people in our streets and for our democracy itself.

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Covid Corner 1-2-3

1. From STAT, reporting on seemingly random distribution of face masks by the Trump administration:

“A 140-student charter school in Florida received 37,500 masks [from the Trump administration], for instance. A beekeeping company got 500 masks as an “emergency services” provider, and despite reports of Covid-19 cases in hundreds of facilities, few poultry producers received any masks. ‘If you can’t find a method to the madness a few months later, it may mean it’s all madness,’ Juliette Kayyem, a former Obama administration-era homeland security official tells STAT. “Where did those masks actually go?” Read more here.”

2. Be sure to print last Wednesday’s post; then cut out and tape the face mask graphic to your refrigerator and front door, per instructions.

And check out this from “STAT.” It’s a confirmation and update of what you learned from your Required Reading about the spread of the pandemic in the July 15 post.

3. Headlines of the Week

Dumb story:

‘This is no longer a debate’: Florida sheriff bans deputies, visitors from wearing masks

Tragic Story:

Finally,

Admiral (Ret.) William McRaven was the top guy of our Navy Seals and the head of all of our Special Operations Forces worldwide when they captured Saddam Hussein and Osama Bin Laden and when they rescued Captain Phillips. He is a greatly decorated veteran and scoffs at the title “hero;” nevertheless, that’s what you’ll call him when you read his book, Sea Stories. Better yet, get the audio book and listen to him tell his stories in his own voice.

Further, click here to take in his commencement address at the University of Texas (Austin) in 2014. Then go make your bed. You’ll understand that last after you watch his 19 minute video.

Most important for right now, read Admiral McRaven’s essay in The Washington Post regarding our upcoming election. He gets this right.

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* From the apolitical University of Denver Institute for the Advancement of the American Legal System (IAALS) blog last September:

James Lyons, a longtime lawyer and one-time diplomat, offers the view that President Trump’s attacks on our judges and the rule of law undermine the legitimacy of the legal system in unprecedented ways.

Here’s a link to Lyons’ paper, “Trump and the Attack on the Rule of Law.”

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Ed. note: We need to spread the word so that we make a critical difference, so

  1. Pass this along to three people, encouraging them to subscribe (IT’S A FREEBIE!).
  2. Engage in the Comments section below to help us all to be better informed.

Thanks!

The Fine Print:

  1. Writings quoted or linked from my posts reflect a point I want to make, at least in part. That does not mean that I endorse or agree with everything in such writings, so don’t bug me about it.
  2. Sometimes I change my opinions because I’ve learned more about an issue. So, educate me. That’s what the Comments section is for.
  3. Errors in fact, grammar, spelling and punctuation are all embarrassingly mine. Glad to have your corrections.
  4. Responsibility for the content of these posts is unequivocally, totally, unavoidably mine.

JA


Copyright 2022 by Jack Altschuler
Reproduction and sharing are encouraged, providing proper attribution is given.

Where Political Influence Comes From – and a Destructive Snit


Reading time – 4:19; Viewing time – 6:49  .  .  .

It’s going to take decades to clean up the mess that our terrible infant president is creating. Some things will take much longer and will leave permanent scars. Other Trump damage, like loss of endangered species, will be impossible to fix.

We’re told that the Donald Trump Environmental Protection Agency intends to “sharply curtail rules on methane emissions.” It’s possible that methane isn’t a focal point of your day, so I’ll explain what this newest EPA ruling will mean to you.

Methane is likely the gas that burns in your home furnace and water heater. Burning natural gas instead of other fossil fuels produces less carbon dioxide, so it adds less to global warming, and it’s cheaper to use, too. That’s where the methane happy stuff ends. The rest requires a little story to explain it.

The phenomenally destructive Supreme Court decision in Citizens United v. Federal Election Commission granted Big Money interests – deep pocket individuals and corporations – the power to dominate and control our politics using their cash. That was more than surprising, since the case was only about the Citizens United organization wanting to show their movie trashing Hillary Clinton right before each primary in 2008. It wasn’t about campaign contributions and domination of politics.

The McCain-Feingold Act prohibited such “electioneering” within 30 days of a primary, so Citizens United was enjoined by the district court from showing their 30-minute attack ad that was designed to influence the primary elections. They filed suit and the case wound up before the Supreme Court, which reversed the district and appellate court rulings against Citizens United. That should have been the end of the case, but it wasn’t.

Chief Justice John Roberts ordered the attorneys to return to the Court to re-litigate the case, this time testing the rights of corporations and speech equivalency. In that gross distortion of the original case, the 5-4 conservative majority decided that corporations have all the same rights as flesh and blood human beings, including the right to make campaign contributions and air political advertising.*

Justice John Paul Stevens

As outrageous as that is, if you’re a Constitutional purist, get that, “[In addressing an

issue that was not raised by the litigants], the majority changed the case to give themselves an opportunity to change the law.” That is from the blistering dissent of this decision, written by Justice John Paul Stevens.

Effectively, the Supreme Court legislated from the bench on issues that were not in contest in this case. Citizens United v. FEC had nothing to do with human rights or corporate rights or political contributions, but its adverse effect in those areas will be felt for a very long time.

Dig into the case a little deeper and you’ll have a new and dark understanding of Chief Justice John Roberts. Be sure to pay attention to his Senate confirmation hearings, where he did the now familiar confirmation dance, spewing volumes of words while not answering questions. More specifically, though, he invoked stare decisis, the principle of not upsetting prior court decisions and making current decisions based upon precedent. Roberts had a solid belief in that, he told us.

Turns out that stare decisis actually wasn’t a real important thing to John Roberts and that allowed him to legislate from the bench. That bench-created new law gave us things like the NRA being such a powerful campaign contributor to legislators that our elected officials refuse to create the gun safety legislation that 90% of Americans want them to create. Sadly, we have a government of, by and for Big Money, not you and me.

Here’s how that connects to the EPA lifting methane emission regulations.

Point #1: Over the course of 20 years methane released into the atmosphere has 86 times more powerful global warming effect than does carbon dioxide. The EPA has taken down its web page detailing this.

Point #2: Natural gas comes largely from fracking wells and as many as 50% of them leak methane into the atmosphere. The page for that has been taken down from the EPA site, too.

Point #3: The Obama administration generated regulations to cause the actors in the methane extraction business to take action to reduce methane emissions.

Point #4: Trump’s EPA is in the process of trashing those Obama era regulations and allowing essentially uninhibited methane leakage.

Some major oil companies have stated that they are opposed to the change the EPA is proposing. Do your own math on why they’d do that, especially since their own industry association and lobbying arm, the American Petroleum Institute, has come out in favor of EPA’s proposal to eliminate methane emission regulations.

There’s a really good chance that you are not in favor of the EPA’s proposal that will dramatically increase the rate of global warming. The problem for you is that our legislators don’t really care what you think about that, any more than they care about the 90% likelihood that you want strict gun safety regulations.

Just like healthcare, immigration reform, voting rights, education and so many other issues, you’re not getting what you want and it can all be traced back to Citizens United.

That’s now compounded by Trump’s ongoing snit over being dissed by President Obama at the White House Correspondents Dinner in 2011. Since that time Trump has been doing everything he can to negate everything Obama accomplished, including DACA, regardless of the harm he does to you and all of us, our allies and our planet.

Such is the behavior of this terrible infant president. We are paying the price for his temper tantrum and, as I said earlier, it will take decades to clean up his mess.

Quote of the Week

Trump is a man who has been progressively hollowed out by the acid of his own self-regard. David Brooks

Opinion Piece of the Week

The Frauding of America’s Farmers, Paul Krugman


*Justice Anthony Kennedy, writing for the majority, wrote,

“The First Amendment does not allow prohibitions of speech based on the identity of the speaker  .  .  .  even if the speaker is a corporation.”

It is beyond any possibility that the Founders intended the Bill of Rights to have any connection whatsoever to non-human entities, like corporations. The purpose of the Bill of Rights was to protect the rights of people. Humans. Read the amendments and it will be clear to you.

So much for Justice Antonin Scalia and Clarence Thomas being “originalists.” They claimed to interpret the Constitution as the Founders originally intended. so they liked to call themselves originalists. Clearly they were/are not.

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Ed. Note: I don’t want money or your signature on a petition. I want you to spread the word so that we make a critical difference. So,

YOUR ACTION STEPS:

  1. Pass this along to three people, encouraging them to subscribe (IT’S A FREEBIE!).
  2. Engage in the Comments section below to help us all to be better informed.

Thanks!

NOTES:

    1. Writings quoted or linked to my posts reflect a point I want to make, at least in part. That does not mean that I endorse or agree with everything in such writings, so don’t bug me about it.
    2. Errors in fact, grammar, spelling or punctuation are all embarrassingly mine. Glad to have your corrections.
    3. Responsibility for the content of these posts is unequivocally, totally, unavoidably mine.

Copyright 2022 by Jack Altschuler
Reproduction and sharing are encouraged, providing proper attribution is given.

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