SCOTUS Critical Of McCain-Feingold (LIKELY TO OVERTURN! Transcript released.)

National Journal's Hotline On Call ^ | September 9, 2009

[xjcsa]

The SCOTUS today appeared poised to strike down at least a portion of the Bipartisan Campaign Reform Act of '02, after a majority of justices fiercely questioned Solicitor Gen. Elena Kagan and an atty for the legislation's sponsors, including Sens. John McCain (R-AZ) and Russ Feingold (D-WI).

The case -- Citizens United v. FEC -- was first heard by the court on 3/24, but, in an unusual move, the court held over the case and ordered a re-hearing before the start of its Oct. term. Citizens United, a nonprofit advocacy org, produced a 90-min. film titled "Hillary: The Movie" meant for a video-on-demand service. The movie took an unflattering view then-Sen. Hillary Clinton (D-NY) in advance of her WH '08 bid. But the FEC ruled that the film fell under the McCain-Feingold provisions for political ads and should be regulated. Citizens United said it was a documentary, and FEC regulation was a violation of their First Amendment rights.

The order for a re-hearing was widely seen as an indication that the court was seriously considering a broad ruling striking down McCain-Feingold, and today's proceedings did little to make court-watchers feel differently. The basic question before the court: Does the Constitution allow the gov't to impose restrictions on independent expenditures by corporations in the political arena?

Kagan came close to acknowledging the gov't's poor chances under questioning by CJ John Roberts.

"If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose," she said at one point, "the answer is yes."

Four of the justices -- including newly-minted Justice Sonia Sotomayor -- urged the court to act narrowly. Justice Stephen Breyer warned that a broad ruling allowing corporations unfettered ability to spend money on campaign advocacy would pervert the political process.

"Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure?" he asked ex-Solicitor Gen. Ted Olsen, who was representing Citizens United. "And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?"

Justice Anthony Kennedy, Antonin Scalia and Clarence Thomas have been critics of campaign-finance legislation in the past, and their questioning today reinforced those positions.

"Congress has a self interest," Scalia told Kagan during her presentation. "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

That left the two George W. Bush-appointees, Roberts and Justice Samuel Alito. But reform supporters could not have been heartened by their questioning of counsel. Roberts was arguably Kagan's harshest inquisitor, at one point telling her, "We don't put our First Amendment rights in the hands of FEC bureaucrats."

Alito also seemed critical of her arguments, stating at one point that "more than half the states" permitted corporate campaign expenditures.

"Now, have they all been overwhelmed by corruption?" he asked Kagan, half-rhetorically. "A lot of money is spent on elections in California; has -- is there a record that the corporations have corrupted the political process there?"

SCOTUSblog's Kyle Denniston found one ray of hope for McCain-Feingold supporters, writing that the hearing "had the same overall feel" as the court's 4/29 hearing in NW Austin Municipal Utility Dist. v. Holder, when the court seemed likely to eviscerate a large portion of the Voting Rights Act. But, in that case, Roberts engineered a narrow ruling that left the law largely in tact while ruling against the gov't's position.

The court is expected to rule as early as 10/5, when the court returns for its '09 term. Some observers believe that the court may have ordered the rare Sept. hearing to give Congress a chance to debate legislation that meets the court's constitutional framework in advance of the '10 midterm elections.

[xjcsa]

In my view this story has received inadequate attention here. This case was re-argued today, and the Supreme Court appears likely to strike down the remains of McCain-Feingold completely, and also to strike down bans on corporations (and unions) airing advertisements supporting and opposing candidates.

A complete transcript of today's oral arguments is here (PDF).

SCOTUS Blog's analysis is here.

As mentioned at the end of the article, it appears that the court's scheduling of this early special hearing in advance of the fall term (which begins October 5) may have been intended to allow the issuance of a ruling as early as possible, so as to give Congress and the states time to pass new legislation within the court's Constitutional framework in time for next year's political campaigns.

Bottom line: this appears to be a Big Deal, and may completely remake the campaign process and campaign finance laws, with the emphasis (finally) on First Amendment free speech rights.

[MinorityRepublican]

Wow some good news!

[Huck]

Thanks for the post.

[Ladysmith]

Mark!

[Hattie]

McCain is already worried about this, heard him on radio tonight saying the high court doesn’t understand any of this. LOL

[dr_who]

Won’t happen until it happens.

[Always Right]

I think it comes down to whether Kennedy will flop on this.

[scooby321]

McCain just got burned by it in 2008.

[nomad]

Now if we can kick out it`s author,McLame.

[rlmorel]

YES! YES! YES!

McCain-Feingold was the single piece of legislation that soured me on the workings of our government (not that there weren’t OTHERS, this one was the proverbial straw!)

If this could be overturned, it would be like removing a black stain.

[alrea]

"Congress has a self interest," Scalia told Kagan during her presentation. "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Priceless stuff here. Thanks for posting.

[xjcsa]

I think it comes down to whether Kennedy will flop on this.

Kennedy has been extremely solid on this issue in the past - most speculation was about Roberts or Alito working for a narrower decision, but that seems to have been squashed by their questioning today. All signs point to a major, sweeping decision clearing out much of current campaign finance law.

[Diggity]

I always thought it was unconstitutional.

[freekitty]

I listened to it instead of the Commie in Chief spewing his usual lies.

I was absolutely fascinated.

[Diggity]

One has to consider that some big companies like Google who are ran by leftist oriented executives will give whatever it takes to the Democrats.

[dr_who]

Very true.

[Eric in the Ozarks]

Agree.

[Shermy]

“In my view this story has received inadequate attention here.”

Didn’t you know? It turns out that lack of campaign money limitations helps Democrats more than Republicans.

[tioga]

we can only hope at this point.......

[Lancey Howard]

That sick scumbag who writes for the Washington Post will not be pleased.
EJ Diane or something...

[Freedom'sWorthIt]

Thank GOD!

[Neidermeyer]

I always thought it was unconstitutional.
****************************************
It clearly is unconstitutional ,, Bush himself said it was and then signed it anyway (??!!!)

[LibLieSlayer]

If juan mcbenedictarnold bent over and bared his butt into a mirror and stared at it... he would not even understand that he was looking at his own arse.

LLS

[holden]

is there a record that the corporations have corrupted the political process there?

That corporations inherently pervert a process is the go-to Plavlovian bell-ringer for the Left. We're all just supposed to murmur and agree with how evil corporations are.

Corporations are successful groups of business investors working on concert. Why should that be disadvantaged more than the activism of a group such as Greenpeace or the Southern Poverty Law Center?   Only because the Left wants it that way.

HF

[Talisker]

McCain-Feingold was the single piece of legislation that soured me on the workings of our government (not that there weren’t OTHERS, this one was the proverbial straw!)

I agree - both McCain & Feingold should have been run out of town on a rail for even proposing their traitorous bill. The other biggie for me, though, was Kelo v. City of New London, and it still stands.

[rlmorel]

Yeah, well...that is one of the OTHER ones that really made me step back...

[Mariner]

"Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure?" he asked ex-Solicitor Gen. Ted Olsen, who was representing Citizens United. "And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?"

The answer is glaringly simple: Let any US entity spend whatever they want in advocacy...as long as the ORIGINAL source of the money is identified.

[hattend]

Hell, McLame was calling on Rep Joe Wilson to apologize to Obambi for calling him a liar during his speech tonight.

Luck McFame

[Uncle Miltie]

McCain / Feingold: Gut the First Amendment.
McCain / Kennedy: Amnesty
McCain / (Next Democrat, Please!): Sellout Extraordinaire!

[GeronL]

I hope you are correct. And I expect Obama to propose adding 3 new seats to the SCOTUS soon afterwards.

[magellan]

"We don't put our First Amendment rights in the hands of FEC bureaucrats."

Yes, yes, yes!

[Rastus]

I seem to remember GWB saying he was going to sign it and leave it up to SCOTUS to overturn it. I didn’t like the attitude, but maybe he was playing the long game.

[Red Steel]

Alito for O'Connor was the game changer against McCain-Feingold. I think I said a few times on FR that it should be challenged again.

Patting my back ;-)

[Citizen Soldier]

I am sure teddy’s widow will conveniently find a letter he wrote right after he died to support campaign reform.

[Soul Seeker]

Not a game and he was wrong then and still wrong today.

Besides, if Bush had his way Miers would be seated on that court instead of Alito. Given her prior speeches I have no confidence she’d have been any better than O’Connor.

[Salvation]

ROTFLOL!

[Buck W.]

How will the wise Latina vote?

[Rastus]

Ya, I’m just trying to be positive. Some here were saying, “Miers deserves an up or down vote!” Hell no. You stop her before she even gets that far or it’s too late.

[Rick_Michael]

The arguement is that corporations and unions are somehow different from “institutional media”. I find that VERY hard to believe. Not all corporations have a ‘right-leaning’ philosophy and most unions are atleast somewhat to the left if not more.

“Institutional media” is incredibly bias to the left. There are very few exceptions I can think about. So as I see, one can eliminate all speech that isn’t formerly approved by the funders, which is incredibly unlikely or one can find a way to improve the ethics within a system of diverging opinions.

That is... honor the right to speech, but find a way to eliminate outright corruption. Either way, it all seems difficult.

[Rick_Michael]

“How will the wise Latina vote?”

Better than all the white guys!? haha

[Deagle]

Ah yes...one of his grand efforts at PC regardless of the Constitution... gotta love him for it... I sure hope that all of this stunting of free speech is overturned.

[Christian4Bush]

bump for later

[St. Louis Conservative]

A BIG victory for free speech if true.....

[matthew fuller]

"like removing a black stain."

That won't happen until McCain is removed from office. He alone stains the entire Conservative Agenda, and destroys most of what even Republicans try to accomplish. He is a blight, a cancer, and a plague on our country. A miserable, sick old man who needs to crawl off in a hole somewhere for the benefit of the country.

[Slip18]

Just as old Teddy died in office, so will McInsane.

Tried removing him from the Senate once. He’s like a shark.

[Moonman62]

I seem to remember GWB saying he was going to sign it and leave it up to SCOTUS to overturn it.

I don't know if he actually said it, but that's the way everybody had it figured here on FR. I think the reason the SCOTUS didn't overturn it the first time is that they were PO'd that W punted that POS legislation over to them, when he obviously should have vetoed it.

[brityank]

If I had my druthers, I'd go back and do what the supreme Court or Congress should have done back in 1886, and fired the Court Clerk that used an instruction to the attorneys which was never brought up or debated in the case, but added to the Syllabus illegally:

Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886)

Syllabus: "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws."

By referencing that as stare decisis the Courts have enabled any and all groups granted Priviledges under governance to acquire the same Rights as Man. I don't believe the Founders ever thought their progeny would be as stupid as to enable something they had fought against throughout the 1700's, British Corporations taking liberties with the Colonies and their inhabitants.

An interesting read on Corporate Personhood is contained at Multinational Corporations (MNCs): Beyond The Profit Motive

(From Intro)

... [C]orporations are themselves centrally planned economies. Decisions are not open to question within a corporation and absolute control is exercised over production and distribution networks by management. Also, whereas public companies are required to be transparent to public scrutiny, the contracts that corporations have with respect to resource management or service delivery remain a commercial secret, removing an important level of accountability.

Many of these unaccountable corporations now have a greater turnover than the GDP of most countries. Of the 100 largest economies in the world, 52 are corporations and 48 are countries, and these corporations have sales figures between $51 billion and $247 billion. Seventy percent of world trade is controlled by just 500 of the largest industrial corporations, and in 2002, the top 200 had combined sales equivalent to 28% of world GDP. However, these 200 corporations only employed 0.82% of the global work force, highlighting the reduction in employment created by excessive economies of scale. In the US, ninety-eight percent of all companies account for only 25 percent of business activity; the remaining two percent account for nearly 75 percent of the remaining activity. The top 500 industrial corporations, which represent only one-tenth of one percent of all US companies, control over two-thirds of the business resources in the US and collect over 70 percent of all US profits. Thus there is also a disproportionate distribution of financial benefit from economic activity, which clearly does not pass to local communities through opportunity or wages. It is retained instead by a small number of major shareholders of an even smaller number of corporations.
------
Corporate profit is exaggerated by what is effectively publicly funded corporate welfare. The package of corporate welfare begins with governments who offer incentives to corporations in order to attract their business, increase their GDP and compete with other nations. National resources that rightfully belong to the public are the first carrots on the stick, and are offered at highly discounted prices to corporations without public consent. Governments even give away valuable common assets at no cost to corporations, such as oil and mineral rights, saving corporations billions of dollars in costs.
------
30% of farmers in the US do not receive any of the $26 billion of US subsidies, and over 85% go to only 20% of the largest farms, a pattern repeated in the EU.
------
... [T]he number of small farms in the US has decreased from 6.8 million in 1935 to 1.5 million in 1998.
------

Securing Legal Rights

Corporate lawyers established the precedent of ‘Corporate Personhood' in US law, which granted them the same constitutional rights as ordinary people. They first began manipulating the courts perception of the Fourteenth Amendment, originally designed to protect the civil rights of slaves. They argued that ‘equal protection rights' and ‘Due Process' should apply to corporations as well as people, and in 1889, the supreme court bestowed these rights on corporations under the authority of the Fourteenth Amendment. Thus corporations became ‘persons'. This was a major turning point, allowing corporations to use these new powers to undermine the democratic rights that the constitution originally intended to confer on citizens: the right to a republican form of government, derived exclusively from the consent of the governed.

The enshrining of limited liability in British and US law in the latter half of the 19th century removed the risk factor from corporate business. It allowed investment funds to be obtained by the public trading of company shares, without imparting any legal responsibility upon the shareholders for the actions of the company. One by one, states in the US began encouraging local investment by lifting restrictions that prevented corporations from merging and acquiring other corporations and stock. Soon corporations were allowed to exist indefinitely and have business multiple interests in multiple states.

In 1906, corporate lawyers secured Fourth Amendment Constitutional Rights for their clients, which originally protected people's possessions from unreasonable searches. The corporations used this protection to limit health, safety and environmental investigations in corporate facilities and to keep corporate documents private. This has undermined the public's right to proper heath and safety standards and environmental protection ever since.

Corporations were also granted protection under the Fifth Amendment, preventing corporate powers from being revoked without due process. This allowed corporations to be compensated if they loose revenue from local laws designed to protect citizens.

Under the First Amendment (Freedom of Speech) corporations have been granted the right to influence legislation that is unrelated to their business. As a result corporations have infringed upon the very heart of democracy. States can no longer limit corporate advertising, even when politically motivated, or limit financial contributions to political campaigns.

These, and other changes, have undermined the people's right to treat corporations as subordinate, man-made entities. Corporate rights now directly compete with the public's right to their health, safety and welfare. The courts have chosen not to address this conflict of interest and the undermining of the democratic process. They have instead allowed modern corporations to use these rights to amass greater wealth. Economic power creates political influence, a fact that, given their new protections under US law, corporations use to their full advantage.

Don't take this the wrong way - profit is good; greed is bad. By allowing groups to assume the same position in society as Man enhances the greed factor and inhibits Man's profit, and ultimately his ability to control his political society. Is it any wonder that the corporations are not averse to making the US into a socialist society? After all, they get to run the show without meddlesome restrictions.

As to the limitations in politics, only live humans should be able to contribute, individually, to any politician directly - and only to those for whom he can legally vote. Maybe after the next Revolution and rewrite of our Constitution - if we survive!

[Enchante]

exactly!! bashing corporations while regarding the scum of ACORN, ACLU, ANSWER, et al as “public interest” groups proves the radical agenda of the left and of too many vapid RINOs.

Michael Moore-on was recently quoted saying “capitalism is evil” and lots of other imbecilic stuff..... his view is actually shared by at least a very large proportion of liberals and RINOs..... they just try to “moderate” their real views to preserve their “political viability” just as a young Bill Clinton once worried about how to evade the draft while preserving HIS “political viability”

[KansasGirl]

This is an important case to watch. It is likely that if they strike this down they will also rule on the side of talk radio when the obama administration moves to silence them.

[nina0113]

seen this?