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Impressions from Citizens United argument--Austin in Trouble:

Let me join the chorus of observers who came away from yesterday's Citizens United argument convinced that the Court was indeed poised to overrule Austin. I attended argument because I wanted to get a firsthand impression whether the Justices were interested in resolving the case in a way that left Austin intact. Based on the questioning and reactions yesterday from the Chief Justice and Justices Kennedy and Alito, I think it's obvious that Austin is in trouble. Chief Justice Roberts spent a considerable amount of time pinning down SG Elena Kagan and extracting concessions that she was asking the Court to reaffirm Austin based on regulatory interests different from those the Court actually relied on in that case. And Kennedy seemed to be unperturbed by Kagan's arguments about the consequences of a broad ruling in the case. I'd be interested if any of you came away with a different impression.

Matt P (mail):
How common is it for one case to lead to a review of another? It seems that seeking to re-affirm Austin is turning out to be a huge mistake of the all your eggs in one basket kind.
9.10.2009 9:57am
einhverfr (mail) (www):
I came away with a slightly different viewpoint. It did seem to me that the justices were considering overruling Austin but it was also not very clear to me that they were leaning towards overruling it-- they might just be considering that course, or narrowing Austin, or something like that.

I thought a considerable amount of time was spent on grilling the SG about why SHE was abandoning the rationale in Austin and adopting alternative defences for the Austin rule. The justices with the exception of Breyer seemed relatively unimpressed by that, and for that reason, it is hard to draw conclusions as to what the justices will do from their questioning of Kagan.
9.10.2009 10:57am
EcoLawyer:
If Austin is overruled, as I think likely, I don't see how the entire artifice of campaign finance regulation stands.

Will all corporations get to contribute? How can one draw a principled distinction between LLCs and C3s or C4s? On the basis of government benefits? But they both receive government benefits, most notably limitations on liability. And so let us assume that all corporations will be treated equally, can limits on unions still stand? What about limits on individuals? Should the same limits be applied to all, and if not, what basis is there for differential treatment?

It's a house of cards and the court seems willing to tug on the corner ace. Unlike many progressives, I'm not sure that's a bad thing (I used to practice election law), but if you are going to unleash corporate participation, you better unleash everyone.
9.10.2009 11:27am
ArthurKirkland:
Corporations may come to regret seeking certain benefits. They have enjoyed heads-we-win-tails-you-lose advantages for some time, and spending shareholders' money on politics might precipitate reexamination of the benefits-responsibilities ratio. Such a reexamination might be overdue anyway, but provoking reconsideration of the benefits enjoyed by corporations might be counterproductive from the corporate perspective.
9.10.2009 11:44am
Tritium (mail):
If we were to ever restore the U.S. Constitution, and begin following it again, then I would say there is no Constitutional principle that allows a corporation to partake in the electoral process. Any attempts at intruding on the rights of the individual to make his own decision without undue influence is undeniable. Any news reports would be prevented from rendering opinions and only printing or reporting facts.

Propaganda is a powerful tool, Church is a prime example as it was the primary source of propaganda way back in the day. The opinion of the priest went a long way with sunday attendees. The same is true today with news anchors, or entertainment news anchors. The elected officials should be judged on their perfromance or debate, not on how well they can sell out their constituents.

And though I have said it in another place, if we allow property to obtain the rights of an individual, then we've created slavery once again in this country.
9.10.2009 12:57pm
BZ:
My analysis, bolstered by reading the transcript afterwards, was similar to the OP. Likely 5-4 against Austin, unless there is a move to limit the fallout by dealing only with the nonprofit side, in which case, I read it as 6-3.

The reason the differing government position was important was that it undercut BOTH the government's argument and the rationale for upholding Austin. You can't say: retain the precedent, if you also say, we're abandoning the rationale for the argument and substituting two new rationales the Court has not adopted before. That's what the discussion about the various rationales was all about.

Which was, to my mind, one of the more interesting aspects of the argument. I read the briefs of the PARTIES as having everything to do with Austin's "corruption" rationale: CU against it; FEC for it. The rest was a side-show of amici. But during OA, the FEC (Kagan) backed off, reversed position even. That set off the avalanche of legal arguments and analyses that will follow.
9.10.2009 1:10pm
BZ:
Oh, and one more thing: the SCotUSBlog analysis was seriously misleading on one point: I read the snippets about Sotomayor saying "but we should let the democratic processes decide the First Amendment rights of corporations" and thought: "OMG." But her actual question, which I confirmed in the transcript, was not that bad. She was addressed a realistic point, which is that corporations' rights are generally those established by the State. But, of course, the Court has already addressed those many times. We are not talking about commercial speech, but pure speech, and to take her point, the Court would have to over-rule Belloti and other cases.
9.10.2009 1:13pm
Tritium (mail):
Can a state bestow upon a corporation, rights that even the state itself does not possess? Perhaps this is the right to exclusive franchise for a limited term.

The supreme court shouldn't be concerned about overruling other cases. If mistakes have been made, it is their job to correct it.

And Belloti was a terrible decision.


First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), was a case in which the United States Supreme Court ruled 5-4 that corporations had a First Amendment right to make contributions in order to attempt to influence political processes. In his opinion, Justice Lewis Powell ruled that a Massachusetts criminal statute prohibiting the expenditure of corporate funds "for the purpose of ... influencing or affecting" voters' opinions infringed on corporations' "protected speech in a manner unjustified by a compelling state interest."


Since corporations were never a party to the Constitution, I can't see how they could have come to that conclusion. Perhaps coincidence it's following the hippy period? I side with Rehnquist on this one. And I would challenge an amendment that wasn't limited to one subject, which is required for all amendments to be offered individually... failing to meet such criteria, the 14th amendment is null and void.
9.10.2009 2:09pm
einhverfr (mail) (www):
Tritium:

Do individuals have a right to exercise free speech on a collective basis?
9.10.2009 3:09pm
David Schwartz (mail):
If we were to ever restore the U.S. Constitution, and begin following it again, then I would say there is no Constitutional principle that allows a corporation to partake in the electoral process. Any attempts at intruding on the rights of the individual to make his own decision without undue influence is undeniable. Any news reports would be prevented from rendering opinions and only printing or reporting facts.
Fortunately no such principle is needed, since everything that is not prohibited is permitted. And no law prohibiting it could exist, because the Constitution says Congress shall make no such law.

Corporations are nothing but groups of people united for a common cause.
9.10.2009 3:17pm
M. Gross (mail):
To echo Mr. Schwartz and einhverfr, I'm not sure why people seem to think you check your rights at the corporate door. Why should your speech be limited simply because you chose to exercise it through a corporation?
9.10.2009 3:29pm
einhverfr (mail) (www):
M. Gross

Because corporations are EVIL. Didn't you get the memo?
9.10.2009 3:43pm
Tritium (mail):
einhverfr:
Do individuals have a right to exercise free speech on a collective basis?

Not unless you're a part of the Borg Collective.
9.10.2009 3:46pm
Tritium (mail):

Fortunately no such principle is needed, since everything that is not prohibited is permitted. And no law prohibiting it could exist, because the Constitution says Congress shall make no such law.


Perhaps I am misunderstanding you here. Congress isn't preventing a free exercise of speech. It is preventing corporate funds being used for something other than conducting business. But that doesn't prevent the owners from steping out from behind the curtain. This is a horse of a different color.

If the power is not specifically granted, if it is not expressly authorized, then congress cannot do it. I still can't figure out for the life of me why campaign contributions aren't considered bribes. As far as under what power specifically, each house can make its own rules, and therefore can prevent contributions to members of congress.
9.10.2009 3:56pm
Soronel Haetir (mail):
Tritium,

In many cases the business of a corporation is exactly the advocacy you seem to think they should not be able to undertake.
9.10.2009 4:01pm
einhverfr (mail) (www):
Tritium:

I suspect you like Farenheit 9/11, right? You assert that the money spent on production of that movie by Miramax and others was not a part of a Contitutional right?

I assume you then agree with the Citizens United FEC complaint about that movie?

(Citizens United are no clear heroes in this cause, but I think the argument they are forced to make in this case is useful.)
9.10.2009 4:22pm
Tritium (mail):
M. Gross:
To echo Mr. Schwartz and einhverfr, I'm not sure why people seem to think you check your rights at the corporate door. Why should your speech be limited simply because you chose to exercise it through a corporation?


People incorporate in order to protect themselves from liability. So a person using their freedom of speech, without the necessary counterpart of responsibility, prevents the exercise of self control.

Making laws against screaming fire in a crowded theatre doesn't restrict the freedom of speech, ultimately it restricts the exercise of that freedom without self control. It doesn't prevent you from having a picnic, and expressing your opinions.
9.10.2009 4:22pm
einhverfr (mail) (www):
Tritium:

People incorporate in order to protect themselves from liability.


No, they don't.

They incorporate to shield investors in their business-- those who contribute nothing more than money-- from liability beyond what they contribute. Natural people are STILL liable for things they do on the job.

For example, if I incorporate my business, it has absolutely no impact on my personal liability. Practically speaking, small corporations are usually forced to apply for loans in ways which make the officers personally responsible for the loan.

It may also shield some partners from financial deals of other partners. But that is a different issue and not one that affects most corporations (which are small sub-S corps with only a few principles).
9.10.2009 4:35pm
Bob from Ohio (mail):
The speech protections of the First Amendment are for real people, not artificial "people" like corporations. Letting large for profit corporations engage directly in politics by the managers spending shareholder money is wrong and against the interests of the citizens of the Republic.

If corporations want to engage in politics, let them give up their special legal advantages.
9.10.2009 4:41pm
MMJMAC (mail):
Corporations may or may not be "groups of people united for a common cause" as David Schwartz says. But if that is all they are, then cannot the same thing be said for, say, labor unions. And if we grant the right of the members of a corporation (ie Stockholders) to authorize the use of corporate money to contribute to political campaigns and do political issue advocacy, then what basis is there to say that the members of labor unions cannot authorize the use of union dues for the same purposes? Alternatively, if we require, as a matter of law, that unions must get the permission of each individual member to use his or dues for political campaigning or issue advocacy, then mustn't we also require that a corporation get the permision of each individual shareholder to use his or her share of the corporate ownership for those purposes? If not, then why not?
9.10.2009 4:53pm
Tritium (mail):
einhverfr:
I suspect you like Farenheit 9/11, right? You assert that the money spent on production of that movie by Miramax and others was not a part of a Contitutional right?

I assume you then agree with the Citizens United FEC complaint about that movie?

(Citizens United are no clear heroes in this cause, but I think the argument they are forced to make in this case is useful.)

Actually, I don't watch a lot of television, and therefore haven't had the oppurtunity to watch it.

Miramax is chartered specifically to create movies. Therefore it wasn't acting outside of it's normal business. So more like a chartered right.

It's difficult to say. He charged that the advertising for the movie in theatres was harmful, since the commercials were aired by a corporation. I guess it would depend on the content of the commercial, and wheter or not it was suggested that people not vote for Bush.
9.10.2009 4:54pm
Tritium (mail):
einhverfr:
No, they don't.

They incorporate to shield investors in their business-- those who contribute nothing more than money-- from liability beyond what they contribute. Natural people are STILL liable for things they do on the job.


I was thinking of a situation when someone(s) having full ownership incorporates... does so for liability reasons... I think we're on the same page....

Usually if an employee causes damage to a client, the corporation is responsible. If they made a press release accusing a competitor of something that wasn't true, the company is liable, not the person specifaclly acting on behalf of the corporation.
9.10.2009 5:05pm
einhverfr (mail) (www):
Tritium:

Usually if an employee causes damage to a client, the corporation is responsible. If they made a press release accusing a competitor of something that wasn't true, the company is liable, not the person specifaclly acting on behalf of the corporation.


Depends on the type of damage, whether it was an official company policy, an honest error, a dishonest action by the employee acting alone, etc. and the level of involvement of the owner. Also either way this is usually handled through an insurance policy anyway and the terms are not very much different for sole proprietors or wholely owned corporations.

However be that as it may, most of the sub-S and LLC's I know of are incorporated primarily for tax benefits, not for liability reasons.
9.10.2009 5:24pm
metro1 (mail) (www):
If you look at the text of the First Amendment, it appears to anticipate and protect "collective" speech. If you focus on the speech provisions you have:

"Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If people are allowed "peaceably to assemble" ... where does that restrict the manner in which the people wish to assemble? They could, for example, assemble down at the corner pub. Or they could assemble in a conference room and send a letter to a politician. Indeed, they could form and organization ... gasp, even a corporation ... to communicate the political speech of the organization's members.

And if the organization's members send that political speech to "the Government for a redress of grievances" ... then that organization's speech appears to be doubly protected by the First Amendment.

Commentators here (and elsewhere) keep arguing that the speech provisions of the First Amendment focus on the individual. A reading of the First Amendments shows that not to be true. The First Amendment's language focuses on the speech ... not who is speaking.

Put it another way. If Congress passed a law saying The Washington Post is barred from saying mean things about Democrats, I hope we will agree that this would violate the First Amendment. But the speech of The Washington Post is communicated by a corporation. The flaw with campaign finance reform is that it really doesn't stop speech by corporations ... it just chooses which corporations get to speak. (So - of course The Washington Post and the New York Times are big fans of the law ... they are the direct beneficiaries).
9.10.2009 5:26pm
Tritium (mail):
Soronel Haetir:
In many cases the business of a corporation is exactly the advocacy you seem to think they should not be able to undertake.

Well, if the corporation is bound to follow state and federal legislation, then it couldn't incorporate for that purpose, could it?

We really need to get away from these faction based positions. Whether people realize it or not, we basically want the same things, but these factions intentionally heat things up specifically to prevent us working together. Imagine if we could all get our heads out of our @zzez, and fix at minimum the corruption in congress.

I don't know why people are so gungho with the healthcare, when we know as long as influence by corporations exist, we'll never see a bill written specifically for the peoples benefit. There are too many fingers in the cookiejar.
9.10.2009 5:27pm
SeanF:
Unless I'm missing something, wouldn't Tritium's arguments suggest that the First Amendment does not actually protect the New York Times, or CNN?
9.10.2009 5:51pm
David Walser:
[I]f we grant the right of the members of a corporation (ie Stockholders) to authorize the use of corporate money to contribute to political campaigns and do political issue advocacy, then what basis is there to say that the members of labor unions cannot authorize the use of union dues for the same purposes? Alternatively, if we require, as a matter of law, that unions must get the permission of each individual member to use his or dues for political campaigning or issue advocacy, then mustn't we also require that a corporation get the permision of each individual shareholder to use his or her share of the corporate ownership for those purposes? If not, then why not?


Cannot the difference in treatment be explained by the voluntary v. compelled aspect of the relationship between shareholder/corporation and worker/union? Few shareholders are required to invest in a corporation. Many, if not all, workers are required to pay dues if working at a union job. (In most states, even non-union members are required to pay dues to the union as compensation for the union's services in negotiating and maintaining the labor contract.) With the possible exception of shareholders who are also employees of the corporation, shareholders are free to sell their shares if a corporation engages in speech the shareholder disagrees with. On the other hand, it's far more difficult for a worker to do anything about the speech of his or her union -- short of leaving his or her profession.

You may not think these distinctions merit differing treatment. However, most would agree that a reasonable person could hold a good faith belief that corporations and unions should be treated differently.
9.10.2009 6:01pm
ShelbyC:
I'm not sure why this is complicated. Laws punishing corporations for speech are designed to get people to alter the speech they undertake on behalf of the corporation because they don't want the corporation punished.
9.10.2009 6:04pm
einhverfr (mail) (www):
Tritium:

So based on your corporate charter decision....

Do you think Microsoft had a right to move from programming language development to operating systems without separate government approval? Do you think it had a right to start MSN without separate government approval? What about MSNBC?

Or do you envision a super-powerful FTC which regulates and approves every new product a corporation puts out?

As to collective freedom of speech, isn't that what Citizens United was doing? Or is corporate funding like being black under Jim Crow: One drop of blood (i.e. black ancestor) is all that matters?
9.10.2009 6:04pm
einhverfr (mail) (www):
tritium:

Agreed on the following point:

We really need to get away from these faction based positions. Whether people realize it or not, we basically want the same things, but these factions intentionally heat things up specifically to prevent us working together.


The difficulty though is articulating a clear and fair legal principle. As you say, you want to see the NYT Corp. (and presumably News Corp) have freedom of expression in their newspapers and other media.

I am not even going to go as far as to say that I think that all possible restrictions on corporate advertising in politics would be untouchable due to the 1st Amendment-- such a position is untenable. However, it seems to me the restriction in this specific case is entirely too broad and that I don't think that as-applied challenges are enough. There are a number of possibilities that could replace such a system.
9.10.2009 6:14pm
SuperSkeptic:


I still can't figure out for the life of me why campaign contributions aren't considered bribes.

Because there is no quid pro quo, per se. The fact that you cannot see the difference is significant. In fact, as Justices have pointed out, we already have laws against bribery.

Pre-emptive speech restricting campaign finance laws are different. You must see this before you come around...
9.10.2009 6:33pm
SuperSkeptic:
I am not even going to go as far as to say that I think that all possible restrictions on corporate advertising in politics would be untouchable due to the 1st Amendment-- such a position is untenable.

Why?
9.10.2009 6:34pm
einhverfr (mail) (www):
Superskeptic:

Why?


Because it is imaginable that there might be rules that could be narrowly tailored to meet a compelling government interest relating to the electoral process.

Furthermore advertising where collusion exists between the candidate and the corporation might be subject to anti-corruption legislation.

Finally, I think that if a situation developed where corporate interests entirely dominated the political conversation, I think Congress would have a compelling interest in scaling that back.

But in each of these cases, the scope of restrictions would be far more narrow.
9.10.2009 6:54pm
SuperSkeptic:
Because it is imaginable that there might be rules that could be narrowly tailored to meet a compelling government interest relating to the electoral process.

So, because this is "imaginable," the absolutist position is untenable? I don't think so. The problem with these "tests" is that the judges can place their thumbs on the scales at any time to support the restriction of freedom du jour. Then, we are faced with judges not applying "the law" but gauging the political winds.

Furthermore advertising where collusion exists between the candidate and the corporation might be subject to anti-corruption legislation.

I'm not quite sure what you mean by that.

Finally, I think that if a situation developed where corporate interests entirely dominated the political conversation, I think Congress would have a compelling interest in scaling that back.

Many make the argument that that is precisely the situation we are in - people like John McCain and Russ Feingold. And here we are back at calling one's perception of "dominating the political conversation" a "compelling government intererst." Too subjective. Moreover, how could it, in any principled fashion, be "scaled back"? When would we know it's been scaled back enough so that individuals now have their "fair share" of the "political conversation?"

The myriad questions that arise are why our First Amendment jurisprudence is so off-kilter.
9.10.2009 7:18pm
SuperSkeptic:
show why, not are why*
9.10.2009 7:21pm
einhverfr (mail) (www):
SuperSkeptic:

Many make the argument that that is precisely the situation we are in - people like John McCain and Russ Feingold. And here we are back at calling one's perception of "dominating the political conversation" a "compelling government intererst." Too subjective. Moreover, how could it, in any principled fashion, be "scaled back"? When would we know it's been scaled back enough so that individuals now have their "fair share" of the "political conversation?"


But that isn't the proper analogy.

I think about it this way:

I have no problem with something akin to anti-trust law being passed regarding monopolizing the marketplace of ideas, particularly relating to an election. But the solution to the 19th century trust issues was not the categorical bans that we see in current election law.

In short, I think the interest is defensible but the act fatally overbroad. I think that if campaigners were to collude to, for example, buy up all the advertising slots in a location during favorable times and use them for a specific candidate, I think some laws might be appropriate. But I think showing a violation should require showing damage to the marketplace of ideas in the same way antitrust law requires showing damage to the marketplace of goods and services.

In short, I don't think simple regulations of speech are sufficient to be Constitutional. I think some other component would need to be shown too. But just because it might ban speech wouldn't make it Unconstitutional.

As for the collusion bit....

If you could show that there was coordination between a political candidate and a corporaton preparing advertising, it might be sufficient to question whether this was speech being given TO the candidate in lieu of a contribution (which would raise corroption issues). One would have to worry at that point about quid quo pro issues.
9.10.2009 9:19pm
einhverfr (mail) (www):
Also I don't think "voters think" is sufficient. I think one has to show actual damage to the marketplace of ideas.
9.10.2009 9:20pm
einhverfr (mail) (www):
Ok.... More thinking about this and absorbing the hearing.

Here are my secondary impressions.....

Some of the justices (most notably Scalia and Alito) seem to feel that the jurispridence of the Supreme Court is a mess n this area and think it needs to be cleaned up. Roberts seems to be leaning in this direction too and seemed to be particularly troubled by the change in rationale offered by Kagan.

Sotomayor seemed concerned about judicial overreach, and Breyer seemed concerned about political consequence and judicial overreach.

If I could guess at a result I would suggest we will see a solid majority reject this statute as facially overbroad and finding for the appellant. This will probably be an opinion written by either Roberts or Scalia and joined by the other plus Thomas, Kennedy, and Alito. Stevens will file a concurrance in judgement, and Breyer will write a dissent joined by Sotomayor and Ginsberg.
9.10.2009 9:48pm
Tritium (mail):
einhverfr:
Do you think Microsoft had a right to move from programming language development to operating systems without separate government approval? Do you think it had a right to start MSN without separate government approval? What about MSNBC?

Or do you envision a super-powerful FTC which regulates and approves every new product a corporation puts out?

As to collective freedom of speech, isn't that what Citizens United was doing? Or is corporate funding like being black under Jim Crow: One drop of blood (i.e. black ancestor) is all that matters?

I can't say on Microsoft, It would depend upong the charter it held by the states.

I think companies should avoid being too big, and avoid eating up all the competition... (Like Nvidia)

as a subsidiary, msn, sure.. .but like I said, however the setup is up to them, I think we could do a great deal more to improve economic stablity generation after generation, but unfortunately congress thinks.. Oooo... 3rd times the charm.
9.10.2009 11:18pm
einhverfr (mail) (www):
Tritium:

I think companies should avoid being too big, and avoid eating up all the competition... (Like Nvidia)


I think it is really funny you use Nvidia rather than Microsoft in that example. After all Microsoft lost in court for "eating up all the competition..." They were sued repeatedly for antitrust (DOJ 1, Caldera, DOJ 2, Novell, etc) and in two cases were actually found to be guilty of these things (other cases were settled out of court).

Fortunately we have laws to protect the free market from monopolization---laws Microsoft was found liable for violating.

There are some genuinely difficult elements to this issue. For example, Fox News commentators trying to sink McCain and praise Hillary prior to Obama's nomination eerily coincides with Rupert Murdoch's campaign involvement (pro-Hillary even before she announced her candidacy). That strikes me as evidence (though not sufficient evidence) that some of this might have been a News Corp. political policy regarding who to try to elect. Yet even if it were provable, this effort would fall squarely in the freedom of the press. In the end, though, the main beneficiary of Murdoch's efforts was fairly clearly Obama.
9.11.2009 11:14am
Tritium (mail):
Conclusion:

Congress has as much authority to restrict corporations &Campaign related expenditures, as it has the authority to accept bribe payments behind the disguise of campaign contributions. Therefore, any corporate or personal expenditures used to benefit any candidate can only be viewed as a violation of the office of trust they are running for, and immediately disqualifies them to hold office. All those who contributed to the 'ad' being viewed by the public will be guilty of interfering with federal elections.

Or something like that.
9.11.2009 6:55pm
Soronel Haetir (mail):
einhverfr,

On the topic of the area having muddled jurisprudence. Have you actually read the output of McConnel v. FEC? That case produces an incredible morass of opinions. More opinions than there are justices if I recall correctly.

Given that, it should not be surprising that campaign finance is a mess.
9.12.2009 1:11am
einhverfr (mail) (www):
Soronel:

I agree that McConnel is a mess. It is impossible to draw any real conclusion as to what the court intended when you have 8 opinions filed in a case heard by nine justices. Heck the syllabus is unusually difficult to follow. The very structure of the opinion makes it necessary that subsequent courts overrule it or clarify it.

I do however think that some weight should be given to whether a resource is both extremely important and genuinely scarce. For example, over-the-air television broadcasting might be an example of a medium where we might be able to restrict some forms of corporate speech (for example, paid advertising slots). The reason there is that it is quite possible that a couple of large corporations could dominate such ads to the exclusion of everyone else.

I am not at all sure that cable television poses these specific issues at all, particularly once one factors out the number of channels available via cable which are just over-the-air channels packaged in an alternate transmission medium.

However, I can't see any reasonable rationale for prohibiting corporations from printing pamphlets, putting up web sites, etc. to get their views out on election issues. These media aren't sufficiently scarce to distort the dialog.

Thus I arrive at a line not too far from where the ACLU is on this issue.
9.12.2009 6:25pm
Soronel Haetir (mail):
Except that with DTV, even that over-the-air rationale falls apart, no?

Even once the requirement that each station have an entire buffer station to each side was overcome and a region could actually have 12 stations, many of them didn't have anything worth broadcasting. So I'm not sure such regulation has made sense since whenever that technical hurdel was killed.
9.12.2009 7:21pm
einhverfr (mail) (www):
Soronel:

I was thinking less of "how many channels could there be theoretically" and more "how many channels are there typically." If most of the country gets 30 or more channels, I would agree with you. But most places I have lived get between 1 and 10 unless you buy cable TV.

The focus should be on the marketplace of ideas, not the theoretical capabilities of any given medium.
9.13.2009 12:45am
Soronel Haetir (mail):
einhverfr,

I am thinking in terms of the ability of a candidate to actually buy a broadcast station for the duration of an election cycle. If there are enough stations available that scarcity can not be used as a reason for the denial I see the argument becoming much less persuasive. Now, I realize that such would be a drastic step under the analog broadcast scheme, but I see it as a real possibility with the number of channels that DTV makes available.

If a candidate or someone else could buy a station to put out their message, the rationale for limiting the ability to buy time on other stations is even less tenable.
9.13.2009 1:04am
einhverfr (mail) (www):
Soronel:

Buying an existing one where there are only a few analog stations? Or leasing frequency bands from another holder that is not using it at the moment and thus creating a new station?

My test is on the ability of others to fairly compete in the marketplace of ideas, so if you are either buying one of a large set of existing stations, or if you are leasing bandwidth that are not currently in use in order to set up such a station, I think it should be VERY difficult to uphold such a ban as Constitutional.
9.13.2009 4:57pm
Tritium (mail):
Good Point, being a member of Congress shouldn't be a grant of privilege when it comes to re-election time. They already have their congressional record (which is likely why we won't see reform.) for people to gauge reliability. That should provide more than enough 'over the top' to prevent anyone running against them from taking office.

I'm still curious if the clause in Article 2 relating to President receiving emoluments from the United States, or any of them.. would make contributions to his campaign illegal also? Emoluments are anything that is beneficial to them. H1N1 flu wouldn't be beneficial, while free signs, volunteers, etc. would be.

Just a thought.
9.13.2009 7:00pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.