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Audio of Campaign Finance Oral Argument Today:
C-Span has posted the audio here.
Mark N. (www):
SCOTUSblog has a summary/analysis for those of us who prefer text to long audio files. Their take is that a 5-4 ruling overturning both Austin and McConnell is the most likely outcome.
9.9.2009 3:11pm
Mark N. (www):
Oops, Kopel's previous post already linked it. Apologies for the redundancy!
9.9.2009 3:14pm
Marc :
eek RBG sounds ill. I wish her well.
9.9.2009 3:36pm
Tritium (mail):
I'm wondering if they're approaching the case properly. Shouldn't the first question be, under what authority congress has to make the legislation, and then determine if it's constitutional? Seems to me, the only power I can think of is making rules for Congress, that both houses agree to, so it would be more like a restriction on members from accepting contributions from the sources mentioned in the legislation. That couldn't be Unconstitutional, could it?
9.9.2009 4:08pm
shertaugh:
Orin:

Duly noting you're not a 1st A expert (nor am I), why is it exactly that Congress cannot circumscribe the authority of state-created entities, like corporations, to participate in the political process? As a creature of the state, why can't the state say "no" to political participation . . . equal-protection arguments aside?

Corporations have no 5th A rights. What distinguishes the two, i.e., a corp's 1st A rights versus a corp's absence of 5th A rights?

Or did SCOTUS settle this issue early last century?
9.9.2009 4:31pm
einhverfr (mail) (www):
Fascinating audio. Thanks for the heads-up. It will be very interesting to read the opinion when it comes out.
9.9.2009 5:34pm
Connecticut Lawyer (mail):
I repeat my comment from a few days ago.

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 making the fictional argument 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.

As for whether corporations have rights... do you think they have due process rights? Can the Government seize the property of corporations without due process or without paying just compensation? How about 4th Amendment rights? Can the Government walk into any corporation's offices without a warrant and just rummage around? Why should 1st amendment rights be any different?
9.9.2009 7:15pm
Tritium (mail):
There was a time in our history when people were equal to property, and they were called slaves. So what happens when Property (Corporations) rise to become equal to the people?
9.9.2009 7:21pm
Nunzio:
Justice Stevens sounds as sharp as ever. Justice Breyer and Chief Justice Roberts keep their opponents on the ropes.
9.9.2009 7:38pm
Connecticut Lawyer (mail):
Tritium,

So tell me, what rights do you think corporations should have? Due process? Just compensation? Search and Seizure? any rights? How would you decide?
9.9.2009 7:46pm
einhverfr (mail) (www):
I am still trying to absorb the arguments made. However a few things came across:
1) Kagan seemed extraordinarily ill-prepared.
2) Sotomayor's main consideration seemed to be judicial overreach.
3) It seemed odd to me that all sides were asking the court to abandon the reasoning in Austin. It seemed to me like the fight wasn't about whether Austin had to go rather than what would replace it.

It seemed rather interesting. I am sure the opinion, when it comes out, will be an entertaining read.
9.9.2009 8:07pm
Tritium (mail):
Connecticut Lawyer:
Corporations are created by law to do business within the law. They are merely authorized to function by the laws, and should not have any rights of an individual. It's just a collection of individuals acting as a sole entity. It does not think, it is not extended the rights found under the laws of nature. I don't purchase a product so the profit can be used to support a candidate I don't agree with, nor should it support a candidate i like.

If we're a nation governed by the rule of law, then corporations should be limited in their charters and conduct to that business as they were intended.

A corporation has no liberty, nor can a corporation be arrested and jailed. A corporation is a thing, controlled by people. Those people have individual rights, and with liberty comes responsibility, etc. You don't compensate a corporation for property taken, you compensate the owners, individuals who own the corporation.

People own property, property doesn't own property. Just because it's all held under the name of a corporation, doesn't mean the corporation has a freedom of speech. The individual owners have freedom of speech, that doesn't translate to a powerful voice of the corporation.

The Constitution of the United States required the same power be given up from the states in order for the federal government to exercise it. You can't have 2 governments with treaty making powers, one for the whole, and some for the individuals states. It defeats the purpose.

Though if the owners wish to give up their rights as long as the corporation exists, then I can't say that this would be an invalid proposal, but all owners would have to give up all their individual rights they wish the corporation to exercise on their behalf. A corporation is property, nothing more, nothing less. The only rights to be violated, are those of the owners.
9.9.2009 8:38pm
einhverfr (mail) (www):
Tritium:

Or maybe we could more generally hold corporations criminally punishable. We could, for example, freeze corporate assets except for payroll for a period of time instead of imprisoning the corporation, and dissolve it, confiscating all net worth (thus punishing shareholders) in lieu of the death penalty.

Part of the problem is that a lot of things become important corporate activities. Advertising, for example. Good value advertising might include, for example, sponsoring a charitable event. These send messages.

But if we accept that corporations have free speech rights within their chartered domains, then what happens when one has a political issue that directly affects them, like patent reform, copyright changes, or healthcare reform? Should corporations be allowed to lobby Congress? Should they be allowed to buy issue-specific TV ads?

Where does the line get drawn?
9.9.2009 8:54pm
einhverfr (mail) (www):
Also, what would be the difference between Microsoft Corp spending $40k on political advertising and Bill Gates spending $400k on political advertising?
9.9.2009 8:55pm
Tritium (mail):
There there is greed, there is temptation. People learn from consequences, corporations don't, they only evaluate if the risk is worth it. Dissolve them for violations, but dissolve the company so it won't happen again by them.

Sponsoring a politician may seem important, and sure, they may not know how to survive in the real world without working for a lobbying firm, or as an advisor for some subcommitteee... but eventually they'll figure it out. Isnt learning an important part of life? I think it's about time they start learning.

There is no such thing as a political issue when you are a chartered corporation, within the limits of charter. Patents, copyrights issues that might occur should be directed to the state, as any related issues could be more quickly and easily resolved by them.

If I wanted to call a convention to propose amendments to the Constitution, I must do so through the state legislature. Otherwise I can always hope congress might correct all the errors, but I won't hold my breath.

I would draw the line at giving money or benefitting any politician. Don't corporations become the slavemaster when they control what laws get passed, and how the rest of us must live to survive? The people have a right to have our grievances addressed. Congress legislates where it shouldn't affected things it shouldn't, for the benefit of corporations. You'd think the railroads would have taught us a few lessons.


Also, what would be the difference between Microsoft Corp spending $40k on political advertising and Bill Gates spending $400k on political advertising?


That would be about $360k.

Why do campaigns need to be funded? Can't politicians debate, and for incumbents, rely on their voting records, and accomplishments? I wish I received several million dollars when my contract was up for renewel. Let them work for the position for once, rather than breaking trust and oath and duty in order to take easy street all the way to the bank.
9.10.2009 12:18am
einhverfr (mail) (www):


Also, what would be the difference between Microsoft Corp spending $40k on political advertising and Bill Gates spending $400k on political advertising?


That would be about $360k.


That's my point. THere is no functional difference. But if you say Bill Gates has not right to buy advertising of his view of an election so as to disseminate his view, doesn't that violate the First Amendment?
9.10.2009 11:44am

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