Democracy and Power 115: Other power players August 7, 2010
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The Democracy and Power series exposes the real political process. Obviously, there are many more players in the game of politics in a democracy.
Constitutionally, The Supreme Court has unique powers, and the latent power to nullify acts of Congress and the President.
The federal bureaucracy and the media are two of the largest players not mentioned in this series. Nor has been mentioned the interaction between academics, think tanks and the politician and the political process. Media, bureaucrats, and academia have substantial influence, which is a quantum power more than the individual citizen.
Citizens United Huge Step Forward for Free Speech February 9, 2010
Posted by seeineye in : Politics , add a commentby Ken Blackwell and Ken Klukowski
On January 21, the U.S. Supreme Court empowered ordinary Americans to speak out on an equal footing with millionaires and the media in U.S. elections. Threatened by people being able to freely speak their minds, the president of the United States deceived the American people when discussing this court decision in the State of the Union.
In Citizens United v. FEC, the Court held that Americans acting together through a corporation or other type of group enjoy the same free speech rights that they enjoy individually. Noting that wealthy individuals can spend unlimited money on election ads for radio and television, the Court held that ordinary individuals could likewise pool their money together to engage in the same type of speech, striking down a federal law that made such corporate action a felony.
Writing the majority opinion, moderate Justice Anthony Kennedy declared that in our free country, the First Amendment provides that, “more speech, not less, is the governing rule.” The Court wrote that this case involved a domestic corporation, funded and run by U.S. citizens, seeking to distribute a documentary on a presidential candidate to inform voters’ choices. The Court noted that the Constitution allows combating corruption, but that no one alleged any corruption or quid pro quo here, and so all this amounted to was people joining together in an organization to express their views during the election.
Chief Justice John Roberts also wrote a concurring opinion, in which he explained that although the Court had to overrule two cases to arrive at its holding, that such a move was necessary. Those older cases held that corporations could use vast wealth to drown out average citizens and distort public debate. In Citizens United the Court rejected this anti-distortion rationale as badly reasoned and as having been proved unworkable, as people consequently send money into other types of organizations to get around this corporate ban. The twenty-year attempt to regulate political speech under the anti-distortion rationale had completely failed and made it more difficult for American citizens to speak, and so it must be overruled.
In another concurrence, Justice Antonin Scalia proved how this holding is squarely in line with the Founding Fathers’ original meaning in the First Amendment. The First Amendment protects “speech,” not “speakers,” so that speech is protected whether it comes from a journalist at a newspaper, a wealthy individual paying for radio ads, or a group of average people pouring their funds into a corporate group to speak for them. Public-interest organizations such as Citizens United, the National Rifle Association and the Family Research Council are corporations that act as a megaphone for ordinary people to be heard.
In that context, it’s utterly pathetic how the Far Left has been nothing short of apoplectic over this decision, with ultra-partisan Senator Chuck Schumer calling the Supreme Court’s well-reasoned decision “un-American.” Since when is it un-American to criticize the government or its candidates during an election? What vision of this country doesn’t allow people to speak out when casting their ballots?
Rather than denouncing these partisan screeds, the White House has joined in.
Even more than that, President Barack Obama did the unthinkable, using the national audience of the State of the Union to condemn the Supreme Court’s decision to the justices’ faces, surrounded by hundreds of irreverently-cheering congressional Democrats, crowding and leaning over the justices—who sat stone-faced and immovable as they were being pilloried.
All except for Justice Samuel Alito, quietly reacting to Obama’s claim that this decision allows foreign corporations to interfere in our elections by saying to himself, “Not true.” Indeed it’s not true, as pages 46 and 47 of the majority opinion expressly says that the Court’s holding in Citizens United does not extend to any foreign organization or funding.
The president deceived the American people to saying anything to the contrary. Either President Obama did this intentionally, in which case he must be called on it by the American people, or his team inserted this patently-false statement into the speech, in which case heads should roll both in his communications office and the White House counsel’s office.
The president is flailing here. The Supreme Court has made clear that businesses and corporations, both large and small, including unions and other groups, can all speak out on the issues affecting them during an election. The lopsided playing field is no more, as the First Amendment gives everyone an equal opportunity to express an opinion about political candidates. The people who create jobs can now fight back against policies that prevent them from creating jobs, and this endangers Obama’s agenda across the board, from taking over healthcare to enacting cap-and-trade taxes.
American groups had one hand tied behind their backs when they stepped into the ring against politicians. The Supreme Court restored the power of the First Amendment in Citizens United by untying those hands, and now all of us can wade into the fight.
Justice Alito Was Right February 2, 2010
Posted by seeineye in : Politics , add a commentBy Judge Andrew P. Napolitano
Despite claims made by the president, last week’s Supreme Court opinion on campaign finance specifically excludes foreign nationals and foreign-owned corporations from its ruling.
The Supreme Court issued a ruling last week on the campaign finance that is still being discussed all over the country. In fact, it was even mentioned by President Obama at Wednesday night’s State of the Union address. The high court invalidated its own 20-year-old ruling — which had upheld a one hundred-year-old statute on group political contributions — and it also invalidated a portion of the McCain-Feingold Campaign finance law.
The 20-year-old ruling had forbidden any political spending by groups such as corporations, labor unions, and advocacy organizations (like the NRA and Planned Parenthood, for example). Ruling that all persons, individually and in groups, have the same unfettered free speech rights, the court blasted Congress for suppression of that speech. In effect, the court asked, “What part of ‘Congress shall make no law…abridging the freedom of speech’ does Congress not understand?” Thus, all groups of two or more persons are free to spend their own money on any political campaigns and to mention the names of the candidates in their materials.
The court also threw out the portion of McCain-Feingold law that had prohibited persons who pool their funds or contribute to Political Action Committees (PACs), from spending those funds, directly or through PACs, in the 60 day period preceding an election. Since that 60 day period preceding the election is the most vital in any campaign, the court held that the prohibition on expenditures during that time was a violation of the free speech guaranteed to all persons, individually and in groups, by the First Amendment.
Thus, as a result of this ruling, all groups may spend their own money as they wish on any political campaigns, but they still may not–as groups–contribute directly to candidates’ campaigns. The direct political contribution prohibition in McCain-Feingold that prevents corporations, labor unions, and advocacy groups from giving money directly to candidates was not challenged in this case, thus its constitutionality was not an issue before the court. Groups will thus effectively be running and financing their own campaigns for candidates independent of those candidates’ campaigns.
The case arose in the context of a challenge by an advocacy group that produced a 90-minute motion picture called “Hillary: The Movie,” a highly critical movie about Hillary Clinton, to a ruling by the Federal Election Commission (FEC). The FEC had ruled that in reality the movie was an anti-Hillary political ad. And, since it was financed by an advocacy group, it was banned under the Supreme court’s 20- year-old ruling, the one that the Court just invalidated. That movie can now, two years after it was made and eighteen months after Sen. Clinton abandoned her presidential campaign, be distributed and viewed.
During the course of oral argument on this case in October in the Supreme Court, one of the FEC’s lawyers replied to a question from Justice Antonin Scalia to the effect that the FEC could ban books if they were paid for by corporations, labor unions, or advocacy groups. This highly un-American statement in the Supreme Court by a government lawyer–that the federal government can ban political books–infuriated a few of the justices. The conservative justices were joined by Justice Anthony Kennedy, the swing vote between the conservative and liberal blocs on the Court. The Court’s newest member, Justice Sonia Sotomayor, joined the dissent.
On Wednesday night, during his State of the Union address, the president attacked this decision by arguing that the ruling permits foreign nationals and foreign corporations to spend money on American campaigns. When he said this, Justice Samuel Alito, who was seated just 15 feet from the president, gently whispered: “That’s not true.” Justice Alito was right. The Supreme Court opinion, which is 183 pages in length, specifically excludes foreign nationals and foreign-owned corporations from its ruling. So the president, the former professor of law at the one of the country’s best law schools, either did not read the opinion, or was misrepresenting it.
Roberts and Alito Views on First Amendment Cases May Be Key October 4, 2009
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With three new members in the past four years and the prospect of more change ahead, the Supreme Court led by Chief Justice John G. Roberts Jr. commences this week what could be a transformative term.
New Justice Sonia Sotomayor will receive the most attention, as President Obama’s historic choice begins to reveal the judicial philosophy that remained largely cloaked during her confirmation hearings. And speculation will build about whether a retirement by one of the aging liberal justices will give Obama another opportunity to make his mark.
But experts who watch the court will focus more on President George W. Bush’s appointments: Roberts, who became chief justice four years ago, and Justice Samuel A. Alito Jr., whose conservative viewpoint contrasts with that of Sandra Day O’Connor, the more moderate justice he replaced in early 2006.
Both men are emerging from the cautious first years that every new justice experiences — Roberts as a results-oriented strategist and Alito as a jurist likely to strengthen his voice in a term whose docket already features cases that will highlight the difference he makes on the court.
“The replacement of [William H.] Rehnquist and O’Connor by Roberts and Alito is likely to have a significantly greater impact on the court than the replacement of [Justice David H.] Souter by Sotomayor,” said Walter E. Dellinger III, a frequent Supreme Court practitioner who represented the government during the Clinton administration.
“I think we may look back in about 2020 and see that the replacement of Justice O’Connor by Judge Alito had the greatest impact on the court of any appointment in more than a quarter of a century,” dating back to conservative Clarence Thomas’s replacement of stalwart liberal Thurgood Marshall, he said.
Two Key Cases
Evidence of the impact could come early in this term in a couple of First Amendment cases.
One is Citizens United v. Federal Election Commission, which the court reconsidered in a special hearing last month to decide whether to overrule precedent that restricted the role of corporations in election campaigns. O’Connor supported the kind of campaign finance reform found in the challenged McCain-Feingold act. Alito has been much more skeptical that it can be squared with free-speech rights.
Alito is also likely to be more open than O’Connor to arguments that religious displays on government property do not necessarily constitute government endorsement of religion. That will be at issue when the court next week considers the case of a war memorial cross on government land in the Mojave Desert.
Roberts will also be key in both cases, especially the one regarding campaign finance. He has emerged as a canny tactician, patiently moving the court’s decisions to the right, but without bold steps.
“When the court has gotten to the brink of overruling a major precedent, the court has stepped back from the cliff,” said Steven R. Shapiro of the American Civil Liberties Union.
Whether that is because of Roberts’s preference for narrow and incremental change, or because Justice Anthony M. Kennedy remains the decider between the court’s equally divided conservative and liberal blocs, is the great debate about the court.
