Haunting the Web Since 1999
Here we go again. Dahlia Lithwick looks over the Court’s disastrous 5-4 decision in McCutcheon v. FEC [opinion] — a.k.a. Citizens United all over again — and the corrosive effect it will have on public confidence in government. “[I]n a kind of ever-worsening judicial Groundhog Day of election reform…the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle.”
“‘A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,’ Justice Kennedy wrote.‘” Breaking 5-4 along the usual lines — Roberts, Alito, Thomas, Scalia, and Kennedy in the majority — the Supreme Court determines Miranda rights must now be specifically invoked. “Justice Sonia Sotomayor, in her first major dissent, said the decision ‘turns Miranda upside down’ and ‘bodes poorly for the fundamental principles that Miranda protects.’“
One important note: “The majority ruling is in line with the position taken by the Obama administration and Supreme Court nominee U.S. Solicitor General Elena Kagan. In December, she filed a brief on the side of Michigan prosecutors and argued that ‘the government need not prove that a suspect expressly waived his rights.’” And, given that this administration is currently working to rewrite Miranda to stop the terr’ists, I guess we shouldn’t be too surprised.
Well, it was a nice republic while it lasted. In a 5-4 decision, the Supreme Court finally hands down its Citzens United verdict, and it is ugly. [Full Text] Basically, the distinction between corporations and individuals has been erased, and, by the already dubious proposition that money is speech, unlimited corporate expenditures in campaigns is now just good, old-fashioned government. Welcome to the new Lochner era, y’all.
By the way, this is a much, much bigger deal than Scott Brown or the effing Edwards baby. Not that you’d know that from watching the news right now.
Update: More reactions:
Fred Wertheimer, Democracy 21: “Today’s Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court…With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.“
Bob Edgar, Common Cause: “The Roberts Court today made a bad situation worse. This decision allows Wall Street to tap its vast corporate profits to drown out the voice of the public in our democracy. The path from here is clear: Congress must free itself from Wall Street’s grip so Main Street can finally get a fair shake.“
Robert Weissman, Public Citizen: “Shed a tear for our democracy…Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Today, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.“
Sen. Russ Feingold (D-WI): “[T]his decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century’s worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections.“
President Obama: “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.“
Slate‘s Dahlia Lithwick: “Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is ‘to confuse metaphor with reality.’ Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.“
“If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.” With Justice Sotomayor aboard, the Supreme Court holds a special session today to re-hear arguments in Citizens United v. F.E.C.
And, as Slate‘s Richard Hasen explains, the projected outcome does not look good for McCain-Feingold or advocates of campaign finance reform. “If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing…Expect the floodgates to open, and the money to flow freely, as early as next year.“
I missed this when it first went down, but the NYT just apprised me of it: On the verge of electoral oblivion — the retirements of Sens. Martinez, Brownback, Bond and Voinovich don’t help — the Republicans have filed two lawsuits aimed at overturning McCain-Feingold, apparently in the hope that they could then feasibly prostitute themselves back into power. (Feingold’s response.)
“In 2003, in McConnell v. F.E.C., the justices upheld the precise provisions the Republicans are now challenging…The McConnell decision should end the matter. But the R.N.C. seems to be hoping that because of changes in the court — in particular, Justice Sandra Day O’Connor’s replacement by Samuel Alito — it can persuade the court to undo this recent and important precedent.” Hmm. I’ve got a bad feeling about this.
“The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about ‘originalism’ as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.” In the WP, E.J. Dionne eviscerates the Scalia wing of the Roberts Court for their 5-4 decision in D.C. v. Heller yesterday. As you’ve no doubt heard by now, the decision (penned by Scalia) parsed the Second Amendment in such a way as to overturn the handgun ban in the District (and seemed to simply ignore the existing precedent of US v. Miller.) As Slate‘s Dahlia Lithwick deadpanned, “today’s decision ‘will almost certainly cause more Americans to be killed.’“
As it turns out, the Court went 0-for-2 yesterday, also deciding 5-4 (Alito writing the majority opinion) that McCain-Feingold has been prejudicial against the wealthy. In response, Sen. Feingold noted that the millionaire’s amendment was flawed anyway: “I opposed the millionaire’s amendment in its initial form and I never believed it was a core component of campaign finance reform.” Still, the decision here may not bode well for campaign finance opinions down the pike. “‘What’s most significant here is what this means for the future,’ said Rick Hasen, a professor at Loyola Law School. ‘It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.’”
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing.” In a setback for the Dubya administration and a victory for the American way of life, the Supreme Court grants habeas corpus rights to Guantanamo detainees. (The decision in Boumediene v. Bush is now the fourth time the Court has reaffirmed the rule of law over Dubya’s monarchial anti-terror policies.)
In vicious dissent, the conservative bloc: Roberts, Scalia, Thomas, and Alito, with Scalia in particular scowling and ranting like a Batman villain. “‘America is at war with radical Islamists,’ he wrote, adding that the decision ‘will almost certainly cause more Americans to be killed.’ He went on to say: ‘The Nation will live to regret what the court has done today.’” To which I say, “Get over it.” I highly doubt we’ll regret it as much as your being put on the Court in the first place, Justice Scalia.
One of the staples of the failed drug war, mandatory minimums take two substantial hits as the Supreme Court decides 7-2 in favor of judicial discretion in a pair of drug cases, Kimbrough v. U.S. and Gall v. U.S. “Justices Clarence Thomas and Samuel A. Alito Jr. dissented in both cases.”
“‘Conservatives got everything they could reasonably have hoped for out of the term,’ said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation.” Proving the crucial importance of the Alito-O’Connor switch (and, I’ll continue to maintain as my answer to Emily Bazelon’s line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of “free speech” but also — seriously, no lie — to partially roll back Brown v. Board of Education. (In another well-reported case, the majority’s inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you’re keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn’t sound so appetizing. Update: Slate‘s slate of legal observers discuss.
“‘This is deja vu all over again,’ said Justice Stephen G. Breyer. ‘We’ve heard it.’” The Supreme Court hears oral arguments on McCain-Feingold…again, and word suggests the act’s fate may now be in jeopardy with Roberts and Alito on the Court. “Those justices seemed open to a Wisconsin anti-abortion group’s challenge of a provision that corporate-funded ads broadcast in the weeks before an election not mention a candidate by name.” Update: Slate‘s Dahlia Lithwick was watching too, and agrees that it doesn’t look good for McCain-Feingold, which she labels a “Dead Duck Walking.”