Did the FEC and DOJ miss the point?

[acroyear]

Citizens United argued on the basis of 1) a corporation has legal rights like a person, and 2) money for political purposes is free speech.

I have no idea what the opposition argued outside of precedent, precedent, precedent, and a touch of slippery-slope worst-case scenarios, 'cause that's all the editorialists and puntitocracy are talking about.

I'm wondering if they missed something that does significantly trump the first amendment: The Commerce Clause.

Almost all of the money involved in political advertising crosses state lines at significant points, whether to the corporation paying to make the ad, or the corporation paying to show it.  This is especially true as so many are incorporated in Delaware and other low-tax states, as well as the fact that there are only so many P.R. firms (and they too operate often out of different states from their offices for tax reasons).

So Congress putting limits on certain kinds of spending is certainly within their domain under the Commerce Clause, and any new law written needs to have that explicitly asserted as its basis in order to reverse this decision.

----

now, why am i, a somewhat libertarian chap, worried about this?

My concern is that the lack of a spending limit now introduces a pricing war on the advertising firms and media outlets. The amount of air time for commercials and ad-space remains limited, but now the supply of dollars to fill it has no limit at all.

So bingo: bidding war. The networks and local affiliates rake it in, AND eventually one of the two "sides" to a public debate or election, and it WON'T be the side sponsored by the corporations, will be unable to actually meet the price point.

THAT is where this decision creates a corporate oligarchy. The money involved either protects incumbents who support the corporations or poses insurmountable challenges to those who write legislation against them - the other side becomes silenced by the lack of ability to pay for the time.

The Law is no longer just up for sale, it is up for auction to the highest bidder.

Comments

[mandrakan.livejournal.com]

Actually, the First Amendment trumps the Commerce Clause. The constitutional rule is that Amendments trump the original Constitution and later Amendments trump earlier Amendments.

That's the problem with this decision -- by giving corporations First Amendment rights, it cripples Congress's ability to regulate them.

[turnberryknkn.livejournal.com]

Well, whether this decision is a "problem" depends on who you are. Or who you work for. For a lot of folks, everything cited above is the *goal* of their efforts, and not a "problem".

[acroyear70.livejournal.com]

actually, you've dropped right into the bigger problem - competing precedents. Commerce Clause DOES trump first-amendment freedoms in many other ways, enforced by a significant number of other precedents (including those that give the feds the rights over the states in issues of drug laws and assisted suicide laws), and the decision (as far as I've read, and any legal decision is a mess to read) looked at too much at the issue of what the money was going to not at all on how it got there.

Speech may be speech, but commerce is still commerce. The money as "speech" is going to bite the conservatives a lot more than they might like over time.

the other BIG problem with the whole damn thing is that most of the issues discussed in the decision (according to several reviewers) were not actually part of the findings of facts or in the original arguments presented in the case before them - this seems to be one of the worst cases of "judicial activism" I've ever seen.

This also was coming from the very same Roberts and Alito who insist in their writings (and Roberts reiterated in his hearings) that they are always in favor of strictly limited decisions, as shown by how much they refuse to address any real significant constitutional issue in any church-state establishment problem, constantly leaving the lower courts with a mess of vague and competing opinions and school boards with an utterly insane inability to act correctly, and thus more decisions to make it up there.

[mandrakan.livejournal.com]

That's incorrect. Congress can prevent me from buying drugs (commerce), but it cannot prevent me buying an advertisement (commerce) advocating the legalization of drugs (speech), because the First Amendment ("Congress shall make no law...") limits the Commerce Power.

[mandrakan.livejournal.com]

Ah, but perhaps now I see your point. Congress could arguably require a corporation to be federally chartered as a condition of operating in interstate commerce. It could then put whatever conditions it wanted on that charter.[1] (States could do this, too, but the race-to-the-bottom concern probably prevents it).

I think that would fail an equal-protection or privileges-and-immunities test under Citizens United (with the current Nine, anyway), but it's a thought.


[1] For instance, "A corporation chartered under this Act may sue and be sued in any State or Federal Court otherwise having jurisdiction, and may hold property in its own name, but is not a "person" within the meaning of any provision of the United States Constitution."

[thatliardiego.livejournal.com]

IMHO, this decision most clearly showed that the Roberts court doesn't give a shit for stare decisis when they want a particular outcome. They've overturned precedent that's recent, they've overturned precedent that's close to a hundred years old. This trend accelerated under the latter end of the Rehnquist years (Google Thurgood Marshall's sentiments on victim-impact statements), but the Roberts court is now barely even doing it with a straight face.

[acroyear70.livejournal.com]

Well, just like Alito doesn't give a shit for his beloved "originalism" when it conflicts with a decision he wants made.

[thatliardiego.livejournal.com]

Exactly. It's only "activism" if you are a liberal.

[voltbang.livejournal.com]

Any decision is only "activism" when the person speaking disagrees with it.

[mandrakan.livejournal.com]

That;s obviously one use of the word, but it's not the only one. It's activist when the Court says that Congress cannot do X, because it takes power away from the political branches and gives it to the unelected court.

There are examples of this that would not be activist - for example, if the Court were to strike down a law requiring citizens to house US soldiers in their homes - but generally the Constitution is imperfectly determinative, and so requires interpretation.

The non-activist position is not always the right or the wrong one, but the court is at its least activist where it gives effect to the expressed will of the political branches.

[voltbang.livejournal.com]

In a legal scholarly sense, you are correct. But the common use of the term is not academic, it's an appeal to popular outrage.

The role of the supreme court has been to limit the expressed will of the political branches when they exceed their authority, which is quite often. The court also serves to limit the mistakes of the legislature, when they write laws that make no sense, as written.

[mandrakan.livejournal.com]

True, although at least this time he's admitting that they overturned precedent. The wrong one, incidentally. A better decision would have utterly disavowed the dictum in Santa Clara County v. S. Pac. R., a statement that does not appear in the Court's opinion and makes no sense whatsoever.

A very interesting story, that, and very disturbing when you consider that the court reporter was a former railroad president.

[acroyear70.livejournal.com]

reminds me of the congressional clerk who inserted the (undebated) clause into the Satellite Home Viewer Improvement Act, preserving record label ownership of artists' copyrights, the "work-for-hire" rule that Don Henley has been fighting for years - that same clerk ended up working for the RIAA a year later. ;-)