Shadowproof

A little analysis of the Supreme Court ruling

Supreme Court Case 8-205
Citizens United v. Federal Election Commission

In the following I quote from the SCOTUS Slip ruling and then comment or question it. I also include a couple of NOTEs which are from the ruling, but only provide information.

This isn’t organized so as to make tremendous sense. These snippets are taken from the ruling in the order they occurred.

Mention of "Hillary" is to a/the movie which was the means by which they/it were/was trying to communicate their/its displeasure with Hillary Clinton.

We begin…

SCOTUS: In McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based on the speaker’s corporate identity.

MH: "speaker’s corporate identity"? Does this mean the fact that the speaker is a corporation or that the speaker is this or that specific corporation or this or that kind of corporation?

SCOTUS: Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief,

MH: "it sought"? It doesn’t sound like a person to me.

SCOTUS: Held:
1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. 5–20.

MH: "cannot be resolved on other, narrower grounds"? It appears they placed their desire to NOT CHILL POLITICAL SPEECH first (without reference to law) and then decided it "must" consider the constitutionality of the law itself.

MH: At this point it appears they’re saying the Citizens United has simply lost because their arguments fail.

SCOTUS: at 481 (opinion of ROBERTS, C. J.), determining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,”

MH: This seems a bit odd. Is this typical wording and logic for a SCOTUS ruling?

SCOTUS: Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here because the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379;

MH: Is it allowed or common for SCOTUS to rule on something because it ‘may’ when a District Court "’passed upon’ the issue"?

SCOTUS: (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved

MH: Does a corporation have standing to make a claim of a violation of the Right of Free Speech?

SCOTUS: Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban.

MH: Yes, potential for damage should be reviewed.

SCOTUS: The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.

MH: This is strange. They claim it’s "necessary to invoke the earlier precedents". How are those precedents still law if they’ve been overturned? Do they get to go back and call up Dred Scott if they find more recent Law to be unconstitutional? Can we maybe go all the way back to claim the Right of Free Speech applies to "We the People" and not our tools, whether corporations or a truck full of money?

MH: Do earlier precedents refer to "speech" in the vaguest of ways or has there been a differentiation between human and a citizen’s and non-human ‘speech’?

SCOTUS: 2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.

NOTE (taken from this .pdf document: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 :: that political speech may be banned based on the speaker’s corporate identity :: this Court may reconsider Austin ::

SCOTUS: Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.

MH: Did the original ruling say "[corporate]" or was that added by the author of this ruling? Is this an attempt to interject the idea that the previous ruling was referring to both individual AND corporate wealth, so that overturning that law would imply now allowing corporate wealth to be used?

SCOTUS: (a) Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech,

MH: The Founders obviously meant "freedom of speech" of "We the People". Here they specify that "corporate independent expenditures" is "speech". Did the founders of this nation believe a corporation (as they existed then or today) has some unalienable right to free speech? I don’t think so.

SCOTUS: It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation.

MH: Here they essentially claim that a corporation is the same as a PAC created by a corporation. Does a corporate PAC have access to corporate monies or is it an association of real human beings who put their own hard-earned money into the PAC according to the regulations on individual campaign contributions? What does that law say about corporations giving campaign contributions (either directly to a candidate or to a PAC)?

SCOTUS: political speech must prevail against laws that would suppress it by design or inadvertence.

MH: No, it is indviduals, citizens who must prevail against laws which would suppress them. There is no "war against terror", only war against terrorists and there is no law against "political speech", only against certain kinds of human behaviors, of which using a corporation to contribute corporate money to political campaigns is one.

SCOTUS: (b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429.

MH: Is it true the Court ruled in First Nat. Bank of Boston v. Bellotti that a corporation somehow has a Right of Free Speech? How far back in history do we have to go to see that? Are we back to "the good ‘ol days" when many voices were suppressed?

SCOTUS: However, the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, because it “fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47–48.

NOTE: Buckley, 424 U. S., at 31

MH: Was that Buckley case the most recent law on this issue? Are they applying it properly here? I thought there were still limits on how much an individual could give? When were those limits lifted, if ever? If they’ve overturned Austin and here they’re also invalidating part of the prior law, then what does that take us back to? Has it ever occurred before that a court has ruled a law unconstitutional and ‘dropped back’ to prior law and then invalidated part of that and ‘dropped back’ even further? Is this the way it’s supposed to work? Once a law is found unconstitutional, such as Buckley, and another law takes front and center, then how can the most recent law be found unconsitutional and the prior law (remember, it too was found unconstitutional) be brought back to the fore?

SCOTUS: Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker’s corporate identity.

NOTE: Bellotti, 435 U. S., at 788, n. 26

MH: Is that true? Or, as I suspect, it doesn’t refer to the speaker ‘being’ a corporation, but that the identity would allow this corporation to speak, but not that one. Corporate identity could refer to a particular corporation, a class of corporations or to the fact the speaker is a corporation rather than a person. Which of these was the issue in Bellotti?

SCOTUS: Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.

MH: So, Belotti said one thing and Austin overturned that to institute limits.

SCOTUS: (c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.
(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

MH: So, they claim there is no consistent ‘line’ of law to uphold, thus freeing them to decide anew. Well, of course it’s quite possible there wouldn’t be consistency. After all you only need a new law when the old is thrown out as unconstitutional. They’re never going to be consistent…ever. The old…unconstitutional. The new constitutional. And, to claim a corporation is the same as a non-corporate ‘association’ is utterly ridiculous. Shareholders do not always associate. Usually they don’t know one another at all. They hardly group together for the express purpose of expressing a unified political view. To use the wealth created with the help of these shareholders to express one view is perhaps contrary to ALL of their interests. It would be one person, an employee of the corporation, deciding what to say and thereby having a disproportionate power to speak in the political arena — even if contrary to the shareholders views. Of course, it’s quite possible that one person or any of the shareholders might not even be citizens of the country. They may wish us harm.

SCOTUS: All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth,and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech.

MH: First, not all political speech requires money, from the economic marketplace or elsewhere. They’re also saying that if you ban a corporation such as Massey Coal then you have to also ban a Washington Post or Bloomberg or perhaps even corporatized bloggers who make money from advertisements. It’s virtually a blackmail scheme. Also, to claim that since the money is made from the same marketplace the actors are all equivalent is a contrivance worthy of laughter. Their serious (and dangerous) argument is that if they can’t have corporate political speech, then nobody else will be allowed to speak either. I wonder if the use of the phrase "media corporations" is a simple way of avoiding saying the "Press" which our founders very specifically DID protect.

SCOTUS: And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

MH: It already has!

SCOTUS: (4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominantly by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.

MH: "even if"? They say there is NO interest in banning foreign influence in our political system? Amazing. I can hear George Washington now, "What difference would it make if King George were to promote certain politicians and governmental policies in America? I don’t care."

SCOTUS: (d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin,

MH: They say the relevant factors in deciding whether to uphold precedent are: workability, the precedent’s antiquity, the reliance interests at stake and whether the decision was well reasonsed. They say all these ‘counsel in favor of abandoning Austin’. They are apparently saying the Court which upheld Austin (if it was challenged before) was wrong (and probably stupid). Was Austin upheld before? Was Austin really unworkable? Was the precedent they referred to Austin or the case before that? When did each of those get decided? What are the "reliance interests at stake"? Was Austin "well reasoned"? I can’t believe all those stars lined up the way it’s claimed.

SCOTUS: which itself contravened the precedents of Buckley and Bellotti.

MH: Of course it contravened it’s precedents. That’s always a quality of the new law. So, they say that there can not be any overturning of precedent whatsoever because…? And, in so doing, they set the logical argument that if we demand they over-turn this ruling then we accept their argument that they should be allowed to overturn Austin. Neat, but not a legal rationale.

SCOTUS: As already explained, Austin was not well reasoned.

MH: Perhaps. Scholars can look at that. Perhaps Austin was narrow and the particulars it dealt with weren’t well done, but that larger Law still stood well. As I said, scholars can debate that.

SCOTUS: It is also undermined by experience since its announcement.

MH: Really? what ‘experience’ is that?

SCOTUS: Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws.

MH: Does that mean we should have no laws as they’re all useless? That’s part of the rationale which led to unregulating financial markets and the disaster.

SCOTUS: Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers.

MH: Technological changes may challenge enforcement of laws or the job of legislators may become more difficult, but again the abolishing of laws because it’s difficult to enforce them makes no sense. The language that "Change" counsels us annoys me. I know that language is sometimes used: a set of events or facts ‘counsel’ us. But, it harkens back to the "war on terror" and other Bushisms we would rather get past.

SCOTUS: Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47–50.

MH: But, it’s not "governmental interest" which is so important, it’s the interest of the people that the political system, their political system, should not be corrupted by corporations which are a tool created by citizens, but are NOT citizens or humans at all. Also, what were the practices under Buckley & Bellotti? What corruption occurred at that time? What years are we talking about?

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

MH: Conclusion

This makes it appear there wasn’t any great unanimity and that even the dissenters agreed with (at least some of) the decision. I suppose this is typical in many cases and so appears perfectly normal also in this very untypical case.

Kennedy, Roberts, Scalia and Alito agreed in whole and Thomas joined to all, but part IV.

In the dissent the other four justices joined.

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