February 5, 2010
February 4, 2010
President Obama, Justice Alito, and Citizens United Free Speech Case
President Obama, an expert at condemning partisanship before practicing it himself, thought it proper to lambast the Supreme Court’s recent First Amendment decision in front of the country and the Justices sitting not ten feet away.
Liberal media pundits immediately ran to Obama’s defense, criticizing Justice Alito for shaking his head and apparently mouthing the response “not true” to Obama’s misleading statements. Perhaps the president would not have elicited such a response had he not taken that moment to assail a captive audience, practically to their faces.
Obama falsely claimed during his State of Union that the decision would “open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
Foreign corporations are still prohibited from making “(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; or (C) an expenditure, independent expenditure, or disbursement for an electioneering communication” under 2 U.S.C. Section 441e, which was not at issue in the case.
Here are some of the common arguments against this ruling, and the appropriate responses. Original posted HERE.
1) This 5-4 decision is a blatant example of judicial activism, and conservatives are hypocritical for supporting it.
Judicial activism occurs when judges abandon constitutional or statutory meaning and impose their policy preferences instead. A decision that faithfully applies the First Amendment is not activism but rather a proper exercise of the judicial responsibility to keep Congress within its constitutional bounds. The government argued in Citizens United that it had the power to outlaw books and movies produced by unions and corporations, both non-profit and for-profit, if they included even a single line addressing an election or a political issue. Such blatant censorship of core political speech falls well within the text and original meaning of the First Amendment, which supported an open marketplace of ideas by declaring in broad terms that “Congress shall make no law . . . abridging the freedom of speech.” Contrast this with the paradigmatic examples of left-wing judicial activism, which have manufactured a host of “fundamental” rights without anything resembling such a clear textual basis.
2) Political expenditures are not “speech” and should not be protected under the First Amendment.
The force of this seductive argument evaporates upon the realization that spending money is an indispensable component of effective political speech, especially when it involves any audience above a trivial size. If the government could ban expenditures related to speech, it could easily circumvent the First Amendment simply by targeting the necessary funding underlying any communication. Imagine the New York Times being prohibited from paying for its writers, production, advertising, and distribution. Wonderful as this might sound in some of its particulars, you can see how the paper’s right to free expression might be crimped. And so it goes for any person or group wishing to disseminate a political message through print or broadcast media, which is why the Court has properly subsumed the right to political expenditures within the right to free speech.
3) The protections of the Free Speech Clause properly apply only to individuals, not corporations.
Justice Scalia dispatched with this argument nicely in his concurring opinion by pointing out that the First Amendment has long been extended beyond isolated individuals to groups and associations whose members gather for a wide variety of purposes ranging from political to commercial. The Democratic party, the Sierra Club, and the New York Times aren’t individuals, but their speech nonetheless falls under the umbrella of First Amendment protection. But the formalistic obsession with whether a corporation should have the legal status of a “person” with a “right” to free speech quite misses the substantive issues at stake, which concern how the principle of free expression should be applied to the political speech of certain types of social groups. In particular, is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues? Which brings us to our next point:
4) A deluge of corporate and union speech will corrupt the democratic process.
The very idea that political speech in an open democracy can be “corrupting” rests on fundamentally illiberal assumptions about individuals’ capacity for reasoned deliberation and self-government. The First Amendment was designed to allow all speakers to put their messages out into the public debate, be they rich or poor, vicious or virtuous. The underlying principle is that over the long run, a society of free individuals is best equipped to evaluate the merits of political arguments for themselves, and that a distrustful government cannot ban speech out of the worry that its citizens will be unduly swayed by it. Rich individuals and talented polemicists have always been permitted to put out quantities and qualities of speech that may exert a disproportionate influence on society, but political opponents and voters have always been trusted to evaluate these speakers’ arguments for themselves, respond with counter-arguments, and ultimately make up their own minds about the truth of any matter of controversy. Especially with the explosion of diverse viewpoints and avenues of expression that have come from the Internet media revolution, it simply defies common sense to think that any corporation or union could ever hope to so overwhelm the political debate as to prevent dissenting voices from being heard and reasonably contemplated by the electorate. Of course, this freewheeling political dialogue may be messy, imperfect, and prone to abuses, but the First Amendment makes it constitutionally preferable to censorship targeted at disfavored groups.
5) This decision will radically increase powerful corporate influence in politics, compared to the status quo.
History and economics together suggest that powerful corporate interests operating under an extensive regulatory state will always find a way exert a strong influence in politics. Up until now, campaign-finance regulations have had two ugly impacts: First, they have imposed huge legal costs on those wishing to participate in the political process, effectively shutting out smaller voices who cannot afford to pay campaign lawyers and risk legal trouble in getting their messages across. Loosening legal restrictions on smaller businesses will now allow them to enter the marketplace of political ideas on a more equal footing with their larger competitors. Second, campaign-expenditure limits have driven corporate money away from public dialogue and into channels that have been more corrosive and less transparent (think lobbyists, lawsuits, and regulatory capture). While these more pernicious forms of corporate influence are not likely to disappear any time soon, they may be mitigated to the extent that corporations can now pursue their policy objectives through a more open, deliberative process.
6) Corporate political expenditures violate shareholders’ rights to withhold funds from messages they disagree with.
Two problems here. First, like members of any free association, shareholders have an absolute and easy-to-exercise right to exit from any corporation - in this instance, by simply selling their shares and relocating their investments. It is true that mutual funds and retirement accounts can complicate things, but shareholders maintain the ultimate legal right of control over their assets, including initial investment decisions. In any event, the level of “message subsidy” involved in most of these cases will be so diffuse as to be negligible, especially when compared to government policies and messages that taxpayers must fund despite strong disagreement. Second, corporations commonly disseminate non-political messages and make corporate decisions, including charitable donations, that might strongly offend shareholders. This is tolerated as part of the trade-off inherent in the structure of corporate governance, wherein shareholders voluntarily surrender control of their companies’ day-to-day operations in exchange for the efficiencies of corporate decision-making.
7) This decision will harm Republicans by rallying public opinion in favor of populist-progressive reform and against the “conservative” Supreme Court majority that decided the case.
While four members of the Citizens United majority might fairly be called conservatives, the actual author of the opinion was Justice Kennedy, who defies easy political categorization. In the past few years, he has been repeatedly toasted in liberal circles for penning such sweeping decisions as Lawrence v. Texas and Kennedy v. Louisiana, declaring a constitutional right to sodomy and forbidding the death penalty for non-homicidal child rape, respectively. At the very least, those opinions give him some credibility as an independent voice. But perhaps more importantly, a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights, and that the government should not attempt to protect its citizens from hearing seductive messages put out by sinister, powerful interests.
January 31, 2010
Obama’s First State of the Union and Still Out of Touch
Mark Alexander over at The Patriot Post wrote up a critique called State of the Union: Obama v. Constitution, which I partially reposted along with my own comments.
In the wake of Barack Hussein Obama’s first State of the Union address, much of the critical analysis from Republicans posited that he should do “this” instead of “that.”
Unfortunately, when there is no more constitutional authority for a president to do this rather than that, Republicans fail to distinguish themselves from Democrats since both parties are then advocating unlawful extra-constitutional policies.
Exactly. There is a reason the Tea Party movement is the most popular ‘party’ in America at this time.
Obama’s SOTU teleprompters fed him a steady stream of poll-tested rhetoric, none of which comports with the authority granted the Executive Branch, unless, of course, one subscribes to the adulterated “living constitution” as amended by judicial diktat.
Predictably, Obama offered only Socialist solutions to all ills, and not a single suggestion that individual responsibility or the private sector economy should shoulder that burden, at least not without government “incentives,” a.k.a. centralized social and economic planning.
In 6,200 words (second longest SOTU after Bill Clinton — two narcissists who just can’t hear enough of themselves), Obama referred to himself repeatedly, and alleged that he was the anointed spokesman for “we,” the American people, more than 100 times.
On the other hand, he mentioned the Constitution only twice.
Unsurprising, as Obama is a progressive, and progressives view the Constitution with contempt; it’s just an old document that gets the way of ‘progress’. Of course, progressives never tell you to what ends they are progressing.
…Accordingly, Obama mentions freedom only once, and made absolutely no reference to liberty.
Likewise, liberty gets in the way of the statists’ plans.
Nowhere in our Constitution is there any authority or provision for these key proposals from Obama’s SOTU:
1. The power to further centralize regulation of our economy.
2. The power to completely regulate our national health care system. (Note: both the Democrat and Republican proposals lack constitutional authority). Obama even repeated his claim that the American people are just not smart enough to get on board: “I take my share of the blame for not explaining it more clearly to the American people.”
This has been a common theme that shows the arrogance and condescension of Obama. It’s not that the People have not heard or understood his proposals. Quite the contrary, they understand it all too well, which is why they largely reject it.
3. The power to further regulate and tax the production of CO2.
Obama reiterated his claims that the current recession was caused by “Wall Street,” and then went on to insist that the only hope for ending the recession was government “investment,” a euphemism for taxing money out of the private sector, taking bureaucratic handling fees out, then giving it to political constituencies.
The government cannot create jobs, much less anything else of value.
Obama also repeated the blatant lie about lobbyists not being in his administration.
To correctly interpret Obama’s SOTU, you need only filter everything he says through his foremost pledge that the his administration’s charge is the “fundamental transformation of the United States of America.”
That is a line Obama lifted from the primary architect of his Socialist platform, Robert Creamer, who had earlier proclaimed, “If Barack Obama is elected president, then we have the opportunity to fundamentally transform American politics and the economy.”
It always amazes me when Obama supporters deny that he has any socialist leanings or sympathies. Especially when there is a mountain of evidence to support that claim, and exactly zero that denies it.
It’s likely that you’ve never heard of Bob Creamer, because Barack Obama is very adept at concealing his association with his Marxist patrons.
In his younger days, Obama was not concerned about such associations: “I chose my friends carefully,” he wrote. “The more politically active black students; the foreign students; the Chicanos; the Marxist professors and structural feminists and punk-rock performance poets.”
But when he announced his aspirations to become a U.S. senator in 2004, Obama began to cover his tracks. He stopped associating publicly with Leftist colleagues and mentors such as Jeremiah Wright, Michael Pfleger, William Ayers, Bernardine Dohrn, Khalid al-Mansour, Rashid Khalidi, Bob Creamer and others.
Creamer is a member of Obama’s Chicago mob, a fellow “community organizer” and disciple of Saul Alinsky. Like all of Obama’s Chicago benefactors, Creamer believes that he is above the law, or, more appropriately, that he is the law in today’s age of the rule of men. But like Tony Rezko, another of Obama’s slick Chicago political backers, Creamer was caught with his hand in the till and was convicted of a felony (bank fraud) back in 2004 when Obama was a state senator. Creamer got a softball sentence, though: five months in a minimum-security facility for white-collar criminals and another 11 months of house arrest.
With all that time on his hands, Creamer authored a book, “How Progressives Can Win,” which, along with Alinsky’s “Rules for Radicals,” serves as the template for Obama’s campaign to “fundamentally transform” America.
Obama didn’t use the word “transform” in his SOTU, but he did insist that government must “lay a new foundation for long-term economic growth,” under the pretense of “reform,” in order to “give our people the government they deserve.”
There is nothing wrong with the old foundation, considering it is what made this country the most powerful and prosperous in the world to begin with. Listen to Obama’s words very carefully and you’ll notice some disturbing insinuations and patterns.
…Leading up to his SOTU, Obama endeavored to portray himself as a fiscal conservative: “We can’t continue to spend as if deficits don’t have consequences, as if waste doesn’t matter, as if the hard earned tax dollars of the American people can be treated like monopoly money, that’s what we’ve seen time and time again, Washington has become more concerned about the next election than the next generation.”
This is subterfuge.
If he is so concerned about wasted tax dollars, why not return the money to the American people where it belongs? I can guarantee he and every other politician are very concerned about the next election.
Obama endeavors to portray himself as a constitutional conservative: “We will lead in the observance of … the rule of law. … Don’t mock the Constitution. Don’t make fun of it. Don’t suggest that it’s not American to abide by what the Founding Fathers set up. It’s worked pretty well for over 200 years.”
This is deception.
He will certainly pay lip-service to the Constitution, but then support legislation that runs over it.
Obama endeavors to portray himself as a resolute commander in chief. Regarding Operation Iraqi Freedom he decreed, “Let me say this as plainly as I can: By August 31st, 2010, our combat mission in Iraq will end.” On Operation Enduring Freedom in Afghanistan, he declared, “After 18 months, our troops will begin to come home.” On the treatment of captive terrorists, he says, “I will restore America’s moral standing.” On the Long War with Jihadistan, Obama claims, “The United States is not, and will never be, at war with Islam.”
This is farce.
Obama is a dangerous neophyte in matters of national security, and he shows no signs of improving.
North Korea and Iran have only accelerated their nuclear programs since Obama has taken office. He sets artificial and possibly pseudo-deadlines for Gitmo and Iraq. He’s indecisive with Afghanistan, and he tries to reach out to enemies by first stepping on our allies.
If Republicans really want to defeat Obama’s Leftist agenda, they need to adopt the tried and true conservative message founded on Essential Liberty. Only then can they truly take control of the debate. …refocus on First Principles and govern accordingly.
Republicans can best distinguish themselves from Democrats by, first and foremost, honoring their sacred oath to “support and defend” our Constitution.
Absent that, they are only Democrat-lite and that’s not much of an improvement.
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