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.

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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]

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.