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Why Is the Court Reconsidering Austin?

On Wednesday, the Supreme Court will hear reargument in Citizens United v. FEC and hear argument on whether the Court should overturn its decision in Austin v. Michigan Chamber of Commerce (1990) and portions of McConnell v. F.E.C. (2003) upholding government limits on corporate funding of express advocacy in campaigns. SCOTUSBlog previews the case here.

There has been a fair bit of speculation about why the Court sought reargument, and specifically why it asked for briefing on Austin. Many have pointed to an exchange during the oral argument during which the federal government's attorney argued that the government could constitutionally prohibit a corporation (or union) from paying for the publication of a book urging the election or defeat of a candidate for office. Insofar as this represents the logical extension of Austin, perhaps this prompted some of the justices to want another look at Austin.

NYU's Richard Pildes suggests the seeds were planted earlier, perhaps during McConnell, in which the federal government relied very heavily on Austin in defending the McCain-Feingold campaign finance law. As he posted to the Election-Law listserv last week:

In the 4-hour argument in the McConnell case, involving the constitutionality of BCRA, the United States invoked Austin repeatedly as the answer to every constitutional question the Court had about the new limits on corporate/union electioneering. That approach culminated, toward the end of the argument, in the following exchange. At this time, Supreme Court transcripts did not identify Justices by name, but I believe that Justice Scalia is asking the question here; Mr. Clement is Paul Clement, the Principal Deputy Solicitor General at the time who is defending BCRA on behalf of the United States:
QUESTION: You really like Austin, don't you?

MR. CLEMENT: I love Austin. It's binding precedent. I don't, I mean, as much as the plaintiffs don't seem to like the case, I don't really hear them asking this Court to overrule it.

To get a sense of what led up to this culminating moment, I will include a few other brief excerpts that show the extent to which the United States invoked Austin in response to many of the Court's questions about regulation of corporate electioneering. For example, here is an exchange on the government's justification for the statute's different treatment of media corporations from other corporations:
MR. CLEMENT: I don't know about that. What I do know is that media corporations are exempted for the same reason they've always been exempted from the law, which is that they do pose a different situation, a difference of kind. And this Court -

QUESTION: And why is that? Why is that? I don't understand that.

MR. CLEMENT: I mean, I think the traditional role of media companies has been quite different than the traditional role of other companies.

QUESTION: What case do you have that we can distinguish speech based on the identity of the speaker? Outside of this area?

MR. CLEMENT: Well, I don't know. I've been focused on this area for the last couple of weeks, Justice Kennedy, and the case that comes to mind is Austin, where the Michigan statute before this Court -

Here is another answer to the Court:
MR. CLEMENT: . . . many of the arguments that are being raised in opposition to this statute are the arguments of the dissenters in Austin, not the arguments of the majority opinion in Austin. And I think that's an important point.
Similarly, here is the answer to questions concerning how to justify the distinction, which some Justices challenged as "artificial," being election and issue ads:
MR. CLEMENT: Justice Scalia, I don't think it's artificial distinction. In any event, it's not a distinction I'm drawing. It's a distinction that this Court drew in Austin when it distinguished the situation it had before it in Belotti, where it said that a corporation facing an absolute ban, not a separate segregated fund requirement but an absolute ban in participating in a referendum, this Court held that unconstitutional. In Austin, this Court said that limits on express advocacy in the context of a candidate campaign triggered different interests, and in that context, Congress has a legitimate ability to deal with the corrosive and distorting effects of aggregate corporate wealth and the problems with diverting shareholder and member money to political causes with which they disagree.
[Reprinted with permission.]

Prof. Pildes suggests that the content can help provide some additional perspective on the Court's decision to reconsider Austin.

ruuffles (mail) (www):
What is the Court relying on for the definition of "corporation"? I've read that the limits (or lack of) also apply to labor unions. Is it just a collective organization or is there a specific definition of "corporation" they're working with?
9.7.2009 5:51pm
SuperSkeptic (mail):
It is interesting that donations = speech ; corporation = individuals right from the get-go. It would seem tougher to come to any "principled" conclusion when based on two glaringly obvious fictions.

Anyone calling odds Sotomayor writes the dissent in a 5-4? I'll take a 35-1... she might want to fly under the radar on this one.
9.7.2009 6:49pm
ruuffles (mail) (www):

Anyone calling odds Sotomayor writes the dissent in a 5-4? I'll take a 35-1... she might want to fly under the radar on this one.

Not sure about writing it, but I'd be willing to bet that she dissents. I don't have the links at hand, but I've read that she's firmly in the pro-restriction camp (unlike say death penalty or abortion where her views are unknown).
9.7.2009 7:13pm
ruuffles (mail) (www):
Ah here is the article I think I read

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

...

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and "bribes," calling on Congress to overhaul campaign finance laws -- including suggesting public financing of its own elections -- and blasting the Federal Election Commission for not enforcing existing laws.

I'm mildly amused that Obama managed to nominate someone who's most extensive papertrail is in the area of campaign finance.
9.7.2009 7:17pm
ruuffles (mail) (www):
And also the irony of McCain (of McCain-Feingold duh) voting against Sotomayor, but for Roberts and Alito, who would provide the vote not available with O'Connor.
9.7.2009 7:19pm
drunkdriver:
The poor reasoning of Austin if anything seems less convincing today, given how many avenues exist to spread one's ideas. The book-banning discussion in the first arguments crystallized just how off-balance the decision is. It boils down to an Orwellian "we must limit speech in order to save it" approach-- we'll restrain trade in free speech, in order to favor the little guy.

This leads to the questions, one, whether this is actually working (is it easily evaded; who really benefits other than incumbents, media companies, and established lobbyists who support such legislation); and two, whether it is consistent with the First Amendment to muzzle some speakers for the specific purpose of restraining their success (why couldn't a later legislature ban ads by organizations funded by the poor, on the ground that liberals threatened to become "too successful?").

A typical defense of Austin can be found here by E.J. Dionne- it almost reads like a parody but is probably indicative of how the case's coverage will run. His column carefully avoids any mention of freedom of speech- and instead raises the specter that corporate speech is allowed, "corporate interests" will become more successful politically, and mashes together the old "Roberts et al are really judicial activists because they want to overturn some precedents they think are wrong."
9.7.2009 7:23pm
ShelbyC:

It is interesting that donations = speech ; corporation = individuals


A little clarification:
donations != speech, but regulating donations based on whether or not they are for a particular type of speech = regulating speech.

punishing corporations for their the expressive content they generate = punishing individuals for the speech of themselves and their associates.
9.7.2009 7:29pm
ruuffles (mail) (www):

The book-banning discussion in the first arguments crystallized just how off-balance the decision is. It boils down to an Orwellian "we must limit speech in order to save it" approach-- we'll restrain trade in free speech, in order to favor the little guy.

Hi, please read the original post again

Many have pointed to an exchange during the oral argument during which the federal government's attorney argued that the government could constitutionally prohibit a corporation (or union) from paying for the publication of a book urging the election or defeat of a candidate for office.
9.7.2009 7:30pm
ruuffles (mail) (www):

punishing corporations for their the expressive content they generate = punishing individuals for the speech of themselves and their associates.

I did not know this exception existed

For example, here is an exchange on the government's justification for the statute's different treatment of media corporations from other corporations:

Is there a list somewhere of the exemptions? I'm starting to think this is similar to access to public schools: if you let any organization use it, you have to let religious ones as well.
9.7.2009 7:32pm
SuperSkeptic (mail):
This case really does seem to be the heart of an ideological divide, consider:

The poor reasoning of Austin if anything seems less convincing today, given how many avenues exist to spread one's ideas. The book-banning discussion in the first arguments crystallized just how off-balance the decision is. It boils down to an Orwellian "we must limit speech in order to save it" approach-- we'll restrain trade in free speech, in order to favor the little guy.

This leads to the questions, one, whether this is actually working (is it easily evaded; who really benefits other than incumbents, media companies, and established lobbyists who support such legislation); and two, whether it is consistent with the First Amendment to muzzle some speakers for the specific purpose of restraining their success (why couldn't a later legislature ban ads by organizations funded by the poor, on the ground that liberals threatened to become "too successful?").


Save the hypotheticals, but this could be the rationale for every regulation of any market. This is another example of the divide. Some people think: "If we don't take it over (gov't) the corporations will run everything into the ground, their interests are opposed to the people, ours (gov't advocates) are aligned." It is indicative of american thought since the progressive era.

@ ruufles,

...her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch...

Ms. Sotomayor has lead a remarkably non-partisan, independent career. So, we shall see.
9.7.2009 7:46pm
Soronel Haetir (mail):
As for who writes the opinion I expect about as much clarity as McConnel provided. Although maybe the justices have learned their lesson in the meantime and will speak with more unified voices this time. Certainly these election speech cases must have opened the court's eyes to how unworkable the standards they've put forward so far are.

And a question I haven't really seen answered, how well has the F.E.C. responded to the Wisconsin Right-To-Life case, and the case arising from the previous cycle that also nibbled away at part of BCRA?

If F.E.C. hasn't been doing a reasonable job respecting those rulings then it won't surprise me if a majority is willing to do more now.
9.7.2009 7:50pm
ruuffles (mail) (www):

Ms. Sotomayor has lead a remarkably non-partisan, independent career. So, we shall see.

I have no idea what you mean by that. I do know that she doesn't have previous political associations that other federal judges do. I don't mean Federalist Society.

See another finalist for Souter's seat, Wardlaw of the 9th, as an example. Also see Breyer and Jones of the 5th, though I'd say they acted more in a legal capacity than a partisan one. Wardlaw campaigned for Clinton in 1992 and was a delegate for the convention.
9.7.2009 8:09pm
ShelbyC:
ruffles:

I did not know this exception existed


I'm not sure what exception you think I'm talking about
9.7.2009 8:24pm
Brett Bellmore:

an independent, nonpartisan city agency


Any member of a third party, or independent, could explain how laughably transparent the fiction that these bipartisan organizations are "non"partisan really is.
9.7.2009 8:56pm
Roger_Z (mail):
I wonder if anyone (on the court or anywhere else) asked the obvious question in regards to this argument:

"... and the problems with diverting shareholder and member money to political causes with which they disagree."

What is wrong with the obvious remedy in this case of selling one's shares? (for condition #1).

And, wouldn't it be nice if we lived in a country where the second condition could be remedied simply by giving up one's union membership, and that didn't mean one could no longer seek work in one's chosen profession?
9.7.2009 10:15pm
luky999 (mail) (www):
It would seem tougher to come to any "principled" conclusion when based on two glaringly obvious fictions.
9.7.2009 10:18pm
Soronel Haetir (mail):
As for the question asked by the post topic, how about this answer: Austin has produced a muddled mess, and it's about time the Supremes attempt a little cleanup.
9.7.2009 11:19pm
Borealis (mail):
1. This obviously is the most important speech in a Constitutional sense.

2. The Supreme Court has made several muddled rulings about it.

3. The incumbents in Congress, who have the most biased view of the issue, has made it the most regulated speech in the country.

4. Technology and real world experience have made a joke out of the much of the previous Supreme Court rulings.

5. It is about time the Supreme Court lives up to its responsibilities and figures this out.
9.7.2009 11:48pm
Richard Johnston (mail):

why couldn't a later legislature ban ads by organizations funded by the poor


Which threatens to be every bit as big a factor as that which is spoken by the mute, seen by the blind and heard by the deaf.

NB: I have serious doubts about limiting speech, especially political speech, and think Austin is probably on thin ice. The Constitution may well require striking down the limits in question. I just don't think "organizations funded by the poor" are likely ever to darken the doors of the well off. Which is life, not constitutional law.
9.7.2009 11:53pm
Jack Smith (mail):
6. There is no reason not to level the playing field amongst competing sources of information, whether those sources are media corporations or corporations of other kinds. The more speech we have, the better able we may be to decide for ourselves.

7. If Congress fears that a glut of false and misleading speech may disrupt a rational and fair electoral process, then it can regulate false and misleading speech generally or in the context of advertising rather than regulate all political speech within a given time-frame of an impending election day.
9.7.2009 11:54pm
Raoul (mail):
Corporations are fictitious creations of the state. Their existence is strictly proscribed by statute including tax benefits and lawsuit protections. Its stand to reason that their involvement in electoral politics can be restricted and prohibited. In fact, because of the tax code, allowing unimpeded corporate "opinions" would represent a subsidy and thus forced speech on a natural person. Of course, officers themselves, as individuals, are free to express any opinions; so I see no restraints on the matter as a whole.
9.8.2009 2:07am
Brett Bellmore:

7. If Congress fears that a glut of false and misleading speech may disrupt a rational and fair electoral process, then it can regulate false and misleading speech generally or in the context of advertising rather than regulate all political speech within a given time-frame of an impending election day.


I fail to see the enumerated power which would allow Congress to regulate speech, even setting aside the rather clear terms of the 1st amendment. And any law which presumed to regulate "misleading" speech ought to be void for vagueness.

"Corporations are fictitious creations of the state."

Corporations are the means the state has forced upon anybody who wants to engage in a wide variety of activities, many constitutionally protected. Tax and tort law have seen to that. What worth is there to constitutionally guaranteed rights, if the state is free to make them infeasible to exercise without using the corporate form, and then declare that you've relinquished them by using that form?
9.8.2009 6:52am
yclipse (mail):
Isn't it telling that this is being heard during a special September session?
9.8.2009 8:05am
Raoul (mail):
Sorry Brett- corporations are not forced on anyone and their existence is precisely delineated to take certain advantages of capital formation and distribution. Often individuals create enterprises that are not corporations. Corporations exist as a mode of money creation and there is no reason why they should have unfettered political say- otherwise we could have political corporations whose job is to create money to get into politics- in its logical application- this could destroy the system- kind of like a self replicating virus (/hyperbole/). In other words politics and corporations exist in separate philosophical realms and it is common sense to keep them legally separate. The opposite side of the coin is that we could simply get rid of corporations (since they legal creatures of the state) and the issue goes away- and any power that allows the government to destroy something surely allows it to limit it too- isn't this obvious?
9.8.2009 8:19am
Malvolio:
Corporations are fictitious creations of the state. Their existence is strictly [prescribed] by statute including tax benefits and lawsuit protections. Its stand to reason that their involvement in electoral politics can be restricted and prohibited. In fact, because of the tax code, allowing unimpeded corporate "opinions" would represent a subsidy and thus forced speech on a natural person. Of course, officers themselves, as individuals, are free to express any opinions; so I see no restraints on the matter as a whole.
Really? So you would have no objection a law imposing a board of censors on the product of, say, the New York Times Corporation? After all, the officers and employees of the corporation could still say whatever they wanted on their own time.

And why restrict ourselves to for-profit corporations? Non-profits are just as artificial. The government makes religious corporations like churches possible, so it can establish (and I use the word "establish" advisedly) rules for the conduct of services -- if the parishioners don't like them, they are free to worship in their own homes. Hey, that's the way they do in in China.
9.8.2009 8:25am
Raoul (mail):
Malvolio- religion enterprises are different under the U.S. constitution, however; if they want to "incorporate" they would need to abide by the rules of the state. I do not think there is a constitutional right to incorporate. I have to say the NYT example is very clever, the key here is what is the purpose of the corporation- to be clear, NYT should not be allowed to give all kinds of money to a candidate- but you are right, they could publish articles that would have an impact. I guess if GE wanted to operate a newspaper that peedled their p.o.v. they could but that would be different than giving X candidate unlimited amounts of money.
9.8.2009 8:34am
Mark N. (www):

And why restrict ourselves to for-profit corporations? Non-profits are just as artificial.

We do already put all sorts of restrictions on non-profits, that they would not be subject to were they not so incorporated, and would be unconstitutional were they applied to individuals. For example, 501(c)(3) organizations cannot engage in any substantial political activity. This isn't a violation of anyone's first-amendment rights, because nobody who wants to organize his or her associates to engage in politics is forced to inappropriately register themselves as a 501(c)(3) organization.
9.8.2009 9:06am
Downfall:
Raoul, could you draw that line any thinner? If we can restrict corporations from engaging in political speech by donating money, then there's no clear reason why there can't be a law preventing newspaper from endorsing candidates, which surely has some cash value.
9.8.2009 9:39am
rick.felt:
Corporations are fictitious creations of the state.

A lot of people here seem to be reading from a different First Amendment than the one I learned. Theirs appears to read:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech of natural persons, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
9.8.2009 9:47am
Sammy Finkelman (mail):
>> an independent, nonpartisan city agency created in 1988.

That's the way the New York City Campaign Finance Board describes itself on its website:

http://www.nyccfb.info

"Welcome to the Campaign Finance Board

The Campaign Finance Board is a nonpartisan, independent city agency that serves the public interest by enhancing the role of New York City residents in the electoral process. Through its administration of the Campaign Finance Program, created in 1988, the CFB educates voters about the candidates and enables more..."

It actually sponsers a few political debates; hands out money, often to candidates with little or no competition; and, along with other rules and regulations, helps stifle political competition.

The other day, a semi-joke candidate for mayor pulled out of the race because he had to pay a $250 fine for not filing an asset-disclosure form he didn't know about. It wasn't the campaign finance bvoard in his case, although I am not he never qualified for any money. He had a problem with the City Conflicts of Interest Board and had also failed to qualify for the ballot:

Naked Cowboy Drops Out

It seems like what Kenneth P. Vogel, author of the May 28, 2009 Politico article about Sonia Sotomayor did was run a Google search for "new york city campaign finance board" (half of those search terms probably completed by Google itself)and click on the site for the Board itself and copy some of its self-description.

Elsewhere http://www.nyccfb.info/about the board explains more preccisely how it is named:

'Two board members (who cannot be enrolled in the same political party) are appointed by the mayor, and two board members (who cannot be enrolled in the same political party) are appointed by the speaker of the City Council. The chairman of the board is appointed by the mayor after consultation with the speaker. Board members serve staggered five-year terms.'

Now the Republican Party basically does not exist in New York City as a viable electoral entity, with the exception of a fraction of the city's area and population. It exists mainly as a patronage group, and sometimes endorses Democrats, especially judges and in places where it tremendously weak. Any candidate that does win is really running as an independent, and that includes Giuliani and Bloomberg. Otherwise the existence of the Republican Party mainly makes the election of a 3rd party or independent candidate impossible. (It really does help incumbents to have a candidate running who can never win but always collects some 15 to 30% of the vote. Tammany Hall knew that.)
9.8.2009 10:15am
CrimsonTribe:
At its most basic level, a corporation is a partnership that takes advantage of a state established framework to allow efficient creation and management of an entity owned by multiple natural persons and that also enjoys state created limited liability. Even in the absence of a corporate code, given enough money and time any halfway competent corporate attorney could use contract law to create a framework so that a partnership would operate like a corporation. It could enforce limited liability contractually and purchase insurance to provide limited liability in the case of torts.

While there is a good argument to be made that the current framework of most state's corporate codes functions as a subsidy to shareholders, the remedy for that is a rebalancing of the framework, not treating corporations differently from other groups. Therefore, there are two categories: groups and individuals. Arguing that groups should be unable to engage in political activies would leave the political arena to the wealthy.
9.8.2009 10:16am
Sammy Finkelman (mail):
Sometimes they don't run anybody and that's not a help either.

As George WIll has written, politics is underfinanced. What we need is more and varied sources of money, and you cannot solve this with public financing because how do you decide who it goes to. (One way might be dollar for doillar rebates of poilitican contributions but you also need the ability to jump start a campaign.)

It is no use to say less money should be spent - the money is actually needed. All that cutting off money does is promote ignorance of who and what the candidates are and confers an advantage of whoever is better known, even if known by only a fraction of the population. It usually helps incumbents, who at least the voters know is not some kind of fringe candidate. You get low-turnout, noncompetitive elections, and sometimes great disatstifaction with government. People hasave voted in term limits as a partial remedy, although that doesn't work too well actually.
9.8.2009 10:22am
PatHMV (mail) (www):
Prohibiting paying for certain speech is in fact the same as prohibiting the speech. It is not possible to reach a national audience, or even a state-wide audience, without paying somebody for something. It takes paper or bandwidth to disseminate a message to sufficient people to make any difference at all.

Also, a corporation is only able to act through its agents, and it is required to compensate those agents (employees) for the work they do. Prohibiting a corporation from paying for particular speech is prohibiting the corporation from making that speech.

Look at the federal law which prohibits convicted felons from ever again possessing a firearm. It contains a provision for waivers to be issued by the Secretary of the Treasury. However, for over a decade now, Congress has included in the annual appropriations bill a provision which forbids the Secretary from spending any funds for the purpose of issuing such waivers. As a result, no waivers have been issued, because everything the Secretary does involves the expenditure of federal funds, even if the only cost is in the salary of its employees, or even the salary of the Secretary himself. The ban on paying for the activity is a ban on the activity itself.
9.8.2009 11:32am
corporate titan:
I am looking forward to seeing contribution restrictions lifted for corporations (but not unions). Corporations are essential to the success of capitalism, and any restriction on their behavior restricts capitalism. Unions, on the other hand, seek to take the profits of the corporation and redistribute them to their undeserving members, reducing the corporation's likelihood of success. The influence of unions on the government is disproportional to their percentage of the workforce, and needs to be restricted (if not banned outright.) Government should be enacting only pro-capitalist policies, and if they are also pro-corporation, so be it. Workers have an individual right to petition Congress, but not unions (as they did not exist on the national scale at the time of the founding.)
9.8.2009 1:52pm
ChrisTS (mail):
I think my sarcasm meter may be on the fritz.
9.8.2009 2:07pm
Connecticut Lawyer (mail):
In Buckley v. Valeo, the Court held:

"[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,... The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion." 424 U.S. 48-49. It is this principle, which is still good law, that forces the advocates of "campaign finance reform" into the stilted position of arguing that they are merely trying to prevent corruption. Of course, that isn't what they care about at all. What they want to do is shut up people with money in order to enhance the voices of people without money but under Buckley they can't say that.

A nice parallel can be drawn to the law on affirmative action. The Court said a while back that tilting the scales in favor of minorities could be justified as remedy for discrmination by the defendant but not as a means to remedy societal discrimination or as a means of ensuring the equal distribution of goodies across racial groups. However, this only works if the particular institution was guilty of racial discrimination. Since many aren't, it was necessary to come up with some other rationale, which lead to the ridiculous "diversity benefits everyone" theory when in fact all that the advocates of AA really want is the equal distribution of goodies across racial groups.

Returning to campaign finance, if the Court fairly applies Buckley there is no way that it can uphold the FEC's application of the current law. There is not even a fig leaf of a concern over corruption; instead, there is just the naked desire to shut up those with money. This is an easy case.
9.8.2009 5:43pm
societyis2blame:
Every attempt at permitting restrictions on speech under the guise of campaign finance reform cannot help but suffer from internal conflicts of interest and favoritism - witness the above attempts to parse the definition of corporations, attempts to define why their speech should be controllable while that of individuals is not, etc...

In the end, you always get results-oriented "justice" that reflects each jurist's idea of which entities (or categories thereof) are "good actors" and "bad actors" in the process and how much of whose money it takes to create an "imbalance" that must be "leveled." Legal decisions based on these dubious grounds must therefore obfuscate, set up straw men and otherwise muddle the issue to conceal their blatant unconstitutionality.

McCain-Feingold, public funding of candidates and other "finance reform" efforts simply cannot be reconciled with the First Amendment no matter how artfully we may parse our definitions and polish our pleadings. You simply can't get there from here.

I hope this reconsideration is an occasion to fundamentally re-evaluate the soundness of the entire line of "campaign finance reform" cases and make substantial progress toward getting the government (back) out of the business of regulating political expression under the guise of promoting "fairness."
9.8.2009 9:30pm
einhverfr (mail) (www):
Raoul:

I have to say the NYT example is very clever, the key here is what is the purpose of the corporation- to be clear, NYT should not be allowed to give all kinds of money to a candidate- but you are right, they could publish articles that would have an impact. I guess if GE wanted to operate a newspaper that peedled their p.o.v. they could but that would be different than giving X candidate unlimited amounts of money.


I agree with this line by the way. But as long as GE is able to fund a newspaper, what makes this different than simply buying space for a "special advertising section" in Newsweek or taking out an ad in the New York Times?
9.10.2009 6:32pm
Eli Rabett (www):
If the government owns the airwaves, it should be free to restrict access. You could make a similar argument for cable networks which depend on right of ways.
9.10.2009 7:37pm

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