State of The Union

[guido911]

I have a question for you then.  Even if the Supreme Court only explicitly addressed another part of the federal code, wouldn't their ruling still pertain to this section of the law if a corporation was involved?  

Doesn't their ruling supercede any prior law, whether it's state or federal?

I have not reviewed case law construing this provision, but my impression would be no. First, courts all the time find certain provisions within a statute unconstitutional leaving other provisions untouched. You get that. I do not find this ruling, as lengthy as it is, "superced[ing]" any other state or federal law. Section 441e is clear and unambiguous, that is "It shall be unlawful for—(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party..."

That language, coupled with the absence of any language suggesting that the ruling would extend anywhere beyond Section 441b, leads me to the only conclusion that no other statute would be impacted. I would also add that in Justice Stevens' concurring/dissenting opinion he specifically addressed Sec. 441e and its viability, observing:

We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. Burson v. Freeman, 504 U. S. 191 (1992).49 Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e.g., 2 U. S. C. §441e(a)(1).

[Emphasis added].

I think the Court clearly intended that its ruling not affect in any way the prohibition of foreign donors in state and federal elections.

[guido911]

Think they'll censor a gay couples right to marriage? You betcha.

That post was so pathetically awful I'm embarrassed for you. Please, for the love of God, step away from your computer.

[we vs us]

I have not reviewed case law construing this provision, but my impression would be no. First, courts all the time find certain provisions within a statute unconstitutional leaving other provisions untouched. You get that. I do not find this ruling, as lengthy as it is, "superced[ing]" any other state or federal law. Section 441e is clear and unambiguous, that is "It shall be unlawful for—(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party..."

That language, coupled with the absence of any language suggesting that the ruling would extend anywhere beyond Section 441b, leads me to the only conclusion that no other statute would be impacted. I would also add that in Justice Stevens' concurring/dissenting opinion he specifically addressed Sec. 441e and its viability, observing:
[Emphasis added].

I think the Court clearly intended that its ruling not affect in any way the prohibition of foreign donors in state and federal elections.

There's a contradiction there, though.  How do you prevent foreign indirect campaign investment if it's through, say, voting shares of an American corporation?  The American corporation itself retains unfettered freedom of speech regardless of its ownership.

[guido911]

There's a contradiction there, though.  How do you prevent foreign indirect campaign investment if it's through, say, voting shares of an American corporation?  The American corporation itself retains unfettered freedom of speech regardless of its ownership.

I see no contradiction. This is what the majority in Citizens United stated as to the issue of restricting, as opposed to censoring, speech:

We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to "foreign national[s"). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominantly by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.

[Some internal citations omitted].

Justice Stevens also commented on the restrictions, as opposed to the outright censorship, of certain kinds of speech:

[W]e have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress' reasoned judgment that certain regulations which leave "untouched full participation . . . in political decisions at the ballot box," help ensure that public officials are "sufficiently free from improper influences," and that "confidence in the system of representative Government is not . . . eroded to a disastrous extent,"

[Some internal citations omitted].

Citizens United removed the statutory-censorship of domestic corporate speech based on the First Amendment. In my opinion, any attempt by a foreign national to contribute, be it through writing a personal check or indirectly through a corporation, would be violative of 441e and unlawful. It is my understanding that Congress is trying to do something to further restrict foreign influence, which I believe would be redundant, but if enacted should pass constitutional muster.

[we vs us]

If folks like poor ol' KSM are made to feel a little uncomfortable for a few minutes so as can prevent another plane flying into a building killing perhaps members of your family, I got no problem.

That CIA guy that said waterboarding produced actionable intelligence?  Turns out he didn't know what he was talking about:

On the next-to-last page of a new memoir, The Reluctant Spy: My Secret Life in the CIA's War on Terror (written with Michael Ruby), Kiriakou now rather off handedly admits that he basically made it all up.

"What I told Brian Ross in late 2007 was wrong on a couple counts," he writes. "I suggested that Abu Zubaydah had lasted only thirty or thirty-five seconds during his waterboarding before he begged his interrogators to stop; after that, I said he opened up and gave the agency actionable intelligence."

But never mind, he says now.

"I wasn't there when the interrogation took place; instead, I relied on what I'd heard and read inside the agency at the time."

In a word, it was hearsay, water-cooler talk.

"Now we know," Kiriakou goes on, "that Zubaydah was waterboarded eighty-three times in a single month, raising questions about how much useful information he actually supplied."

Indeed. But after his one-paragraph confession, Kiriakou adds that he didn't have any first hand knowledge of anything relating to CIA torture routines, and still doesn't. And he claims that the disinformation he helped spread was a CIA dirty trick: "In retrospect, it was a valuable lesson in how the CIA uses the fine arts of deception even among its own."

[Conan71]

That CIA guy that said waterboarding produced actionable intelligence?  Turns out he didn't know what he was talking about:

I suppose he's the definitive expert on the subject?

[we vs us]

He's the guy most often cited for its effectiveness. 

[FOTD]

Villanous Republicans....proof.

"Leave the banks alone..." the Rethuglicans.

go to the 6:20 mark and see Obama as Senator expressing his concerns with Alito.

[nathanm]

Obama as Senator expressing his concerns with Alito.

My only concern with him is that he either lied or severely exaggerated his respect for stare decesis and judicial restraint during his confirmation hearings. Him and Roberts both. Nothing about the Citizens United decision showed any of that. Not only was there already precedent on point, but they both decided it would be appropriate to reach beyond the question in the suit itself and take it upon themselves to strike down the ban on corporate electioneering.

I expect that sort of thing from Scalia and Thomas, as they have a long history of doing just that (or wishing they could in their dissents), but I thought Roberts and Alito had it in them to not be activist.

[guido911]

My only concern with him is that he either lied or severely exaggerated his respect for stare decesis and judicial restraint during his confirmation hearings. Him and Roberts both.

So NOW you are concerned about our leaders lying or exaggerating. I'll do a search on this site to find out how often many times you criticized Obama for his lies and severe exaggerations.

[nathanm]

So NOW you are concerned about our leaders lying or exaggerating. I'll do a search on this site to find out how often many times you criticized Obama for his lies and severe exaggerations.

I haven't noticed Obama doing anything he said he wouldn't do, aside from the whole enemy combatants thing, which I am certainly annoyed by. (other than that, mrs. lincoln, how did you like the play?)

Unless I missed where he said he thought one thing and then went and did another?

Besides, this ridiculous competition of equivalence is getting stupid. If a Democrat does it, it's OK for Republicans to do and vice versa? No. They both have a standard they should meet regardless of what someone of the other party is doing. If I believed that I'd be mighty pissed the Democrats didn't have a lying sack of meat like Rush on their side. Instead, I'm quite happy they don't.

[guido911]

I haven't noticed Obama doing anything he said he wouldn't do, aside from the whole enemy combatants thing, which I am certainly annoyed by. (other than that, mrs. lincoln, how did you like the play?)

Unless I missed where he said he thought one thing and then went and did another?

Besides, this ridiculous competition of equivalence is getting stupid. If a Democrat does it, it's OK for Republicans to do and vice versa? No. They both have a standard they should meet regardless of what someone of the other party is doing. If I believed that I'd be mighty pissed the Democrats didn't have a lying sack of meat like Rush on their side. Instead, I'm quite happy they don't.

I guess you forgot about lobbyists, televised health care negotiations, earmarks, no new taxes on those making less that $250K, or the stimulus keeping unemployment low. But I digress. It's not about a "ridiculous competition of equivalence", it's about hypocrisy. It's about not throwing stones in glass houses. It's about selective outrage.  That's what is stupid.

O/T

Your concern about stare decisis, the majority in Citizens United discussed this legal principle at length, and explained the factors that should be considered when examining precedent:

"Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." We have also examined whether "experience has pointed up the precedent's shortcomings." These considerations counsel in favor of rejecting Austin, which itself contravened this Court's earlier precedents in Buckley and Bellotti. "This Court has not hesitated to overrule decisions offensive to the First Amendment." Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision."

[Some internal citations omitted, emphasis added].

Interesting that the case that was overruled was itself in conflict with precedent. No problem with stare decisis in that case. The majority further noted that "Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court's flawed historical account of campaign finance laws".

Justice Roberts, a justice you specifically called out, "explained himself" with respect to the stare decisis doctrine in the following manner:

our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that "f it is not necessary to decide more, it is necessary not to decide more," sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are "indispensably necessary" to resolving the case at hand, "the court must meet and decide them."

[Internal citations omitted, emphasis added].

The outrage by many to the decision is, in my opinion, ideologically driven and the majority gets no credit in how it reached its conclusion that censorship is flat wrong.  

[Conan71]

Besides, this ridiculous competition of equivalence is getting stupid.

Trying to say this is turning into a ginormous Johnson contest?

[FOTD]

E.J. Dionne Jr. | Thank You, Justice Alito


Saturday 30 January 2010
by: E.J. Dionne Jr., Op-Ed

http://www.truthout.org/ej-dionne-jr-thank-you-justice-alito56544


"  Washington - 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.

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.

Obama called the court on this, and Alito shook his head and apparently mouthed "not true." 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.

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

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.

There is ample precedent for Obama's firm but respectful rebuke of the court. I know of no one on the right who protested when President Reagan, in a 1983 article in the Human Life Review, took on the Supreme Court's Roe v. Wade decision of 10 years earlier.

"Make no mistake, abortion-on-demand is not a right granted by the Constitution," Reagan wrote. "No serious scholar, including one disposed to agree with the court's result, has argued that the framers of the Constitution intended to create such a right. ... Nowhere do the plain words of the Constitution even hint at a 'right' so sweeping as to permit abortion up to the time the child is ready to be born."

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 the Citizens United case.

Reagan had every right to say what he did. But why do conservatives deny the same right to Obama? Alternatively, why do they think it's persuasive to argue, as Georgetown Law professor Randy Barnett did 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? Are these jurists so sensitive that they can't take it? Do they expect everyone to submit quietly to whatever they do?

In fact, conservatives have made the Supreme Court a punching bag since the 1960s, when "Impeach Earl Warren" bumper stickers aimed at the liberal chief justice proliferated in right-wing precincts.

Richard Nixon made the Warren court's rulings on criminal justice a major issue in his 1968 presidential campaign. "Let us always respect, as I do, our courts and those who serve on them," he said in his acceptance speech that year. "But let us also recognize that some of our courts, in their decisions, have gone too far in weakening the peace forces as against the criminal forces in this country, and we must act to restore that balance." Many conservatives cheered this, too.

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

Alito did not like the president making an issue of the court's truly radical intervention in politics. I disagree with Alito on the law and the policy, but I have no problem with his personal expression of displeasure.

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' court. "

E.J. Dionne's e-mail address is ejdionne(at)washpost.com.

(c) 2010, Washington Post Writers Group

[nathanm]

I guess you forgot about lobbyists, televised health care negotiations, earmarks, no new taxes on those making less that $250K, or the stimulus keeping unemployment low. But I digress. It's not about a "ridiculous competition of equivalence", it's about hypocrisy. It's about not throwing stones in glass houses. It's about selective outrage.  That's what is stupid.

The President responds to your accusations: