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Monday, February 1, 2010

A Lightweight and a Heavyweight Denounces Citizens United

It’s interesting.  The universal liberal condemnation of Citizens United marches forward, unswayed by massive ignorance about the decision.  Trolling around, I found two more critiques of the decision, one at Concurring Opinions, a left leaning blog of egghead professors. And I mean that in a good way.  I mean, I profoundly disagree, but it’s about as far from shooting fish in a barrel as you can get, without these people being right about everything.

And then you have E.J. Dionne Jr. at the Washington Post.

Let’s start with Concurring opinions, where Michael Kang gives his critique of Citizens United.

It doesn’t get off to a very good start, picking the most obvious move in the anti-Citizens-United playbook: pretend it is just about money and not about speech:

the Supreme Court struck down federal campaign finance laws that prohibited corporations from making independent expenditures in connection with federal elections.

Um, no, but you know what?  I wrote this before, so I will just quote myself:

“But wait,” I hear you say, “didn’t all those news stories say this was about campaign expenditures?” Well, this is where the media has been incredibly disingenuous on this topic. The FEC said that they could not purchase advertising. So you can judge for yourself whether this sounds more like a mere restriction on spending, or a restriction on freedom of expression.

Now he is about to say alot at once:

Corporations aren’t the relevant actors whose rights we ought to be concerned about.

Now let me stop right there.  Um, so according to you, the first amendment is about how concerned we should be about a certain person or entity being suppressed?

Well, okay.  Citizens United was prohibited from promoting an anti-Hillary movie just as voters were deciding her fate.  And that doesn’t concern you?

Then he goes over that litany where he says corporations are not persons, but he recognizes the power of the retort “but neither is the Democratic Party or the New York Times” and he tries to introduce a way to allow the Democratic Party to speak, and the New York Times, but not Exxon and I suppose Citizens United itself, right?  So this is how he explains it:

But as many supporters of Citizens United argue correctly, we nonetheless invest institutions, such as corporations and political parties, with constitutional entitlements when it appropriately serves the rights of individuals who constitute those institutions.

So you see, its about you justifying how using the corporate form is “appropriate.”  Well if you are going to start out on the project, I assume you are going to then draw really clear bright lines, right?

In the context of Citizens United, it is unclear to me how shareholders are inappropriately disadvantaged by a prohibition on corporate expenditures.

So, um, then we can ban the New York Times?  Is that what you are saying?  Do you know?

According to Buckley, independent expenditures present no risk of corruption, and therefore government regulation restricting independent expenditures is unconstitutional, regardless of their source.

Well, to paraphrase Judge Alito, that simply is not true.  Read for yourself.  Here’s the relevant passage:

quite apart from the shortcomings of § 608(e)(1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.

So they didn’t say there was no danger of corruption, they sid that there was not enough danger of corruption to justify the restriction on speech.

So he wastes a whole paragraph on this attack on Buckley that doesn’t actually address what Buckley said.  I won’t impugn his honesty, I will just note that he, accidentally or not, killed an innocent straw man.

Buckley is absurd as a matter of political reality in its constitutional assertion that contributions are potentially corrupting, but that independent expenditures are not at all.

Well, what Buckley actually said, that independent expenditures created less of an appearance of corruption is quite arguable.  Really, shouldn’t the fact that you deemed this idea absurd have been your first clue you were getting it wrong?

However, campaign finance law as a whole, over the course of many cases, arguably strove for some pragmatic balance between these legal and democratic values. Citizens United, by contrast, charts a very different course.

And if you think it is pragmatic to let congress limit the ability of others to criticize them, well, it tells us exactly who here is being naïve.

But hey, give him credit.  He is giving it a good try.  He ain’t a dummy—he’s trying.  Now let’s look at the lightweight here, E.J. Dionne.

By the way, why should anyone listen to Dionne, anyway?  I mean check out his bio.  Has he done anything in life that would make you think he knows jack shit about anything, except maybe politics?  Like look this book title: “They Only Look Dead: Why Progressives Will Dominate The Next Political Era."   It sounds prescient until you look at the date: 1996.  Yeah, E.J. you were only off by 12 years, and that era only lasted about a year.  Good call there.

But hey, just because he is laughably incompetent in his subject of expertise, doesn’t mean that he can’t say something insightful, right?

The nation owes a substantial debt to Justice Samuel Alito for his display of unhappiness over President Obama's criticisms of the Supreme Court's recent legislation -- excuse me, decision -- opening our electoral system to a new torrent of corporate money.

First, does anyone believe that Dionne is a strict constructionist?  Yeah, me neither, so let’s refrain from that “legislation” language.  Second he commits the now clichéd move of pretending this is about money and not speech.

Alito's inability to restrain himself during the State of the Union address brought to wide attention a truth that too many have tried to ignore: The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.

So let me get this straight.  Obama breaches protocol and berates the Supreme Court to their face.  He says something that even Linda Greenhouse of the New York Times declares to be untrue.  And Alito says under his breath “not true” or “simply not true.”  And Alito is the one being political?

It reminds me of Althouse’s fisking of Glenn Greenwald when Greenwald actually called Alito’s behavior “flamboyant.”  It’s so over the top, it discredits itself.

His was the honest reaction of a judicial activist who believes he has the obligation to impose his version of right reason on the rest of us.

By stating that something that wasn’t true wasn’t true?  If Obama had said that the sky was green, and I mouthed, “not true” am I being political?  Or am I just stating the truth?

Or is it that Dionne is such a hack that even telling the truth is a political, specifically Republican, act?  I don’t think he meant to send that impression.

The controversy also exposed the impressive capacity of the conservative judicial revolutionaries to live by double standards without apology.

Really?  Do tell...

The movement's legal theorists and politicians have spent more than four decades attacking alleged judicial abuses by liberals, cheering on the presidents who joined them in their assaults. But now, they are terribly offended that Obama has straightforwardly challenged the handiwork of their judicial comrades.

He goes on for several paragraphs establishing the long history of Supreme Court justices being criticized.

But is that the conservative position.  Well, just as Mr. Kang misinterpreted Buckley and them pronounced his misinterpreted description absurd, Dionne misrepresents the conservative critique of Obama’s conduct and then pronounces it hypocritical.  But if you were really trying to understand their point of view, shouldn’t the hypocrisy you cite be the first sign you are not understanding their position?

He goes on:

Reagan cited Justice Byron White's description of Roe as an act of "raw judicial power," which is actually an excellent description of the court's ruling on corporate money in Citizens United v. Federal Election Commission.

Right.  Do I have to explain to everyone again that there is nothing at all radical about saying that a part of the constitution that says Congress shall make no law abridging freedom of speech trumps a law abridging freedom of speech.  I mean, don’t you have to admit that any time Congress tries to keep anyone from speaking, it’s on thin ice?  Maybe you can justify it, but should anyone call it activism if the court says, “fuck it, we’re not letting you restrain speech.”

But then Dionne finally acknowledges the very distinction I was talking about a moment ago, saying this:

Alternatively, why do they think it's persuasive to argue, as Georgetown Law professor Randy Barnett did last week in the Wall Street Journal, that it's fine for a president to take issue with the court, except in a State of the Union speech? Isn't it more honorable to criticize the justices to their faces?

So he understands exactly where conservatives are coming from on this, and then says, “well, yeah, but is it so bad to criticize them to their faces?”  Now, whatever the merits of that point, doesn’t that mean we spent several paragraphs wasting time killing something Dionne knows is a straw man?

Are these jurists so sensitive that they can't take it?

Well, that brings me to an interesting point.  No, I am sure they were not intimidated.  In fact, quite the opposite.  Alito, Scalia, Thomas, Roberts and Kennedy will be more determined than ever to follow this precedent if only to prove they are not intimidated.  But moreover, some of the liberals on the court, sensing a threat to the Supreme Court as an institution, might decide to support the majority decision in Citizens United, if only because they feel that if the court backed down now it would lose face.  Remember, beyond any ideological difference in any government body, there is always the institutional interest, which trumps everything else.

But you know what?  That is inappropriate, too.  Justices should be willing to reexamine their own rulings, and Obama has undermined that.

Richard Nixon made the Warren court's rulings on criminal justice a major issue in his 1968 presidential campaign.

Ah, so we get the reductio ad Nixon, again.

As for the specifics of Obama's indictment...

Wow, it took you a long time to get there.

Alito's defenders have said the president was wrong to say that the court's decision on corporate political spending had reversed "a century of law" and also opened "the floodgates for special interests -- including foreign corporations." But Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns. The court's recent ruling undermined that policy.

If by undermined, you mean they specifically affirmed that "policy."

And notice that word “policy.”  This isn’t about constitutional principles, or provisions, no this is about court “policy.”

Defenders of the decision also say it did not invalidate the existing legal ban on foreign political activity. What they don't acknowledge is that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures.

Which was present even before that decision existed.  For instance if they bought a controlling interest in the Washington Post Company, to name an example.

I disagree with Alito on the law and the policy, but I have no problem with his personal expression of displeasure.

Well, seeing that you spent half the time establishing that Republicans occasionally criticize the Supreme Court’s decisions, you apparently had no time to explain why you thought the legal reasoning was wrong.

On the contrary, I salute him because his candid response brought home to the country how high the stakes are in the battle over the conservative activism of Chief Justice John Roberts's court.

And your proof that they are activists is...  well you say they are. Good to know.

Of course you can then go back and read his critique of the ruling itself and what do you know he starts to make the exact same wrong statements Obama did, such as:

Turning its back on a century of practice and decades of precedent, a narrow right-wing majority on the court decided to change the American political system by tilting it decisively in favor of corporate interests.

So he lied about what this was.  No wonder he defended Obama when he made his lying attack on the decision.

Defenders of this vast expansion of corporate influence piously claim it's about "free speech." But since when is a corporation, a creation of laws passed by governments, entitled to the same rights as an individual citizen?

You know, it’s downright tedious to point out that he is a paid employee of the Washington Post Company.  And then he goes on to make Barbra Streisand's mistake:

The only proper response to this distortion of our political system by ideologically driven justices is a popular revolt.

But if the corporate speech is so irresistible that it cannot be stopped, then, um, how do you expect this revolt to go off?  And what do you expect it to accomplish?  I mean Streisand, dare I say, was more lucid saying, it would be a popular uprising against this decision resulting in a constitutional amendment.  This would be a popular uprising in favor of um…  socialism or something?

It reminds me of these idiots I used to debate in chatrooms during the Bush administration.   They would claim there is no freedom of speech in America anymore, and I would respond, “okay, so what prison are you in right now?  I mean if you don’t have freedom of speech then you can’t be saying all of this as a free person, right?”

Then he loses his focus and whines about what he considers to be fake populism:

This court ruling should also challenge the fake populism we have seen of late. It disguises a defense of the interests of the powerful behind crowd-pleasing rhetoric against "Washington," "taxes" and, yes, "Obama."

Um, “Obama” was now only crowd-pleasing, but even inspired worship usually reserved for prophets, around November 2008.  What changed?

Then he explains that the reason why his policies are unpopular is because of the bailout.  Fair enough, but then it gets, well, goofy.

If average voters came to see government primarily as an instrument of the banks, why should they believe that the same government could help them on matters of health care and employment? This problem was aggravated by puffed-up, self-involved U.S. senators who conspired to make the legislative process look as ugly and chaotic as possible.

In other words, the more we watch the democrats at work, who think they are representing big government at its best, the less we like big government...  It’s almost like as if Democrats had a chance to show how well they could run our lives if we only let them and they screwed it up so badly we realized the entire project was a bad idea.

He then goes on to list several different ways they will try to suppress the speech they don’t like. I have already covered how this is born from a fundamental misunderstanding of what constitutionalism is all about.

And then finally we get this little bit of hyperbole.

American democracy and the square deal in government for which TR battled are in jeopardy.

OMG, we are going to become a dictatorship!  Sigh.