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The Supreme Court & Citizens United
Robert Sterling, Konformist.com
The Supreme Court ruling on Citizens United has become widely loathed, and rightfully so. What has become less well known about the decision, however, is as bad as the ruling may be, had they ruled against Citizens United, it would have been decidedly worse. And perhaps most surprising to Konformist readers is that the issues in the ruling directly involve the history of The Konformist.
A little background: the case, Citizens United v. Federal Election Commission, involved a 2008 documentary by the right-wing Citizens United titled Hillary: The Movie. The movie was a hack attack on Ms. Clinton, ironically on the false assumption that she would be the Democratic Party nominee in November. In July 2008, the DC District Court ruled that advertisements for the film during the election period would violate election finance laws.
Jeffrey Toobin is not the most trustworthy of writers, but in a May 2012 New Yorker article he presents the facts pretty clearly, facts which have been usually ignored in any discussion of the ruling. The most telling part was the exchange between the conservative Supreme Court judges and Deputy Solicitor General Malcolm L. Stewart. Here is the excerpt from Toobin's piece:
Since McCain-Feingold forbade the broadcast of "electronic communications" shortly before elections, this was a case about movies and television commercials. What else might the law regulate? "Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?" Alito said. Could the law limit a corporation from "providing the same thing in a book? Would the Constitution permit the restriction of all those as well?"
Yes, Stewart said: "Those could have been applied to additional media as well."
The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?
"That's pretty incredible," Alito responded. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?"
"I'm not saying it could be banned," Stewart replied, trying to recover. "I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its" But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign.
Kennedy interrupted. He was the swing Justice in many areas of the law, but joined the conservatives in all the campaign-spending cases. Sensing vulnerability on the subject of books, he joined Alito's assault.
"Well, suppose it were an advocacy organization that had a book," Kennedy said. "Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?"
Stewart's answer was a reluctant, qualified yes.
But neither Alito nor Kennedy had Roberts's instinct for the jugular. The Chief Justice wanted to make Stewart's position look as ridiculous as possible. Roberts continued on the subject of the government's censorship of books, leading Stewart into a trap.
"If it has one name, one use of the candidate's name, it would be covered, correct?" Roberts asked.
"That's correct," Stewart said.
"If it's a five-hundred-page book, and at the end it says, `And so vote for X,' the government could ban that?" Roberts asked.
"Well, if it says `vote for X,' it would be express advocacy and it would be covered by the preëxisting Federal Election Campaign Act provisions," Stewart continued, doubling down on his painfully awkward position.
Through artful questioning, Alito, Kennedy, and Roberts had turned a fairly obscure case about campaign-finance reform into a battle over government censorship. The trio made Stewartand thus the governmenttake an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end.
Though Toobin makes the issues raised in the case seem surprising, they shouldn't have been. In fact, in communications with Citizens United before the Supreme Court heard the case, I supported their side in the legal battle on this basis. By defining Hillary: The Movie (and any advertisement of it) as electioneering rather than a work of speech, the FEC had turned speech into something it could regulate. The questions asked by the Supreme Court judges were questions that should have been asked by implication of a ruling in favor of the FEC, and the response by Stewart confirmed that siding with the FEC was an extremely dangerous precedent.
Put it another way: let's pretend that instead of this case involving the 2008 documentary Hillary: The Movie, it was the 2004 documentary Fahrenheit 9/11 at the center of the battle. It is pretty hard to argue that Fahrenheit wasn't a movie with a definite political agenda, and thus it too would be defined as political advocacy. Would it have been acceptable if the FCC had restricted it during the 2004 election?
And since Stewart declared the FCC had the power to regulate books with political advocacy during a campaign season, are there any books that could fit this description? In fact, there are many, but there's at least one I can think of right away: 50 Reasons Not to Vote for Bush, a book written by myself and published by Feral House in 2004. By the FEC's own logic, this book (which I admit was a work of political advocacy, something that is pretty hard to deny when reading the title) could be regulated by virtue of election finance laws.
This was the fundamental issue behind the Citizens United case. And in this case, the FEC had way overstep its legal boundaries. With Orwellian logic, the FEC had redefined speech as campaign contributions, and turned a law designed to restrict the perversion of politics by money into a law that could restrict the presentation of ideas.
This doesn't mean I support the Citizens United ruling. The Supreme Court could have allowed the continued regulation of political commercials over public airwaves, but declared the restrictions on Hillary: The Movie as an expansive and unconstitutional abuse of power. Even so, the can of worms opened by this ruling (starting with the rise of SuperPACs) is just as much due to the FEC's lack of respect for constitutional issues than it is the cynical posturings of the Supreme Court's right wing.
The Supreme Court & Arizona Immigration
A common theme in news involving the Supreme Court and Obama lawyers is how woefully incompetent Team Obama appears. This may be charitable at best: the Obama DOJ pretty much comes off as arrogant, dismissive of basic constitutional questions and ultimately spineless to take any principled stand even if they believed in any. In short, the DOJ has become a perfect representation of Barack Obama. That was the case in the Obamacare challenge, was the case in the Citizen's United case, and was the case in the recent Supreme Court battle over Arizona's immigration law.
An AP news story from June 25 had the title "High court rejects part of Arizona immigration law." The story gets all the facts right: despite the extreme right-wing tilt of the court, the Supremes overwhelming rejected the reactionary law: "The court struck down these three major provisions: requiring all immigrants to obtain or carry immigration registration papers, making it a state criminal offense for an illegal immigrant to seek work or hold a job and allowing police to arrest suspected illegal immigrants without warrants."
Despite these rulings, one key part of the law was left in place: "that police must check the status of people stopped for various reasons who might appear to be in the U.S. illegally." Prez Obama decried this provision being left intact, declaring in writing: "No American should ever live under a cloud of suspicion just because of what they look like."
That Obama presented his objection in writing rather than one of his supposedly awesome speeches should tell you something. What was left out in the AP article: the reason didn't reject the "Show me your papers" provision as an in-your-face abuse of civil liberties is because the Obama DOJ never objected the law on this point. In fact, many of the Supreme judges could barely conceal their disgust of the DOJ during arguments over this fact. The reasons seem pretty obvious: the Obama political team felt that sticking up for the rights of Latinos would be an election loser.
The good news: though they didn't overturn the most offensive part of the law, the Court made it pretty clear that they would if anyone could present evidence to the court that the law has or could violate any person's basic constitutional liberties. It's a shame that Team Obama weren't the ones who did it.
Rush to Judgment in Sandusky Trial?
It's hard to come to the defense of a man charged with serial pedophilia, especially when there are so many witnesses against him, like there are against Jerry Sandusky of Penn State infamy. Fortunately, I won't be coming to his defense.
But his lawyers in the case felt the trial timeline (seven months from arrest to verdict) gave them inadequte time to fairly defend their client. According to Joe Amendola:
"We told the trial court, the Superior Court and the Supreme Court we were not prepared to proceed to trial in June due to numerous issues, and we asked to withdraw from the case for those reasons."
Regardless of what one thinks of Sandusky, one should expect he receive a fair legal defense.
And besides, what's the harm in giving the defense more time, especially since the case seems pretty airtight? In fact, given that serial pedophiles like Sandusky usually have even larger stat counts than they're charged, postponing the trial would have allowed the prosecution to uncover even more victims.
And there's the rub: postponing the Sandusky trial would have allowed more time for new evidence to pop up, evidence the prosecutors decided not to investigate.
Item one prosecutors chose not to investigate:
"I can give you a rumor and I can give you something I think might happen," Madden said on the radio. "I hear there's a rumor that there will be a more shocking development from the Second Mile Foundation -- and hold on to your stomachs, boys, this is gross, I will use the only language I can -- that Jerry Sandusky and Second Mile were pimping out young boys to rich donors. That was being investigated by two prominent columnists even as I speak."
In other words, Sandusky faced a speedy trial in order for richer, more powerful individuals to evade punishment. Individuals so rich and powerful that Joe Paterno became an acceptable scapegoat to demonize as an alternative.
It's a shame (but understandable) that prosecutors lack the tenacity of a previous investigator:
The district attorney who tried and failed to prosecute Jerry Sandusky in 1998 after reports of sexual abuse emerged, has been missing since 2005 and was declared legally dead in July.
Ray Gricar disappeared on April 15 six years ago after telling his girlfriend he was going for a drive.
His body was never found, only his abandoned car and his laptop which had been tossed in the Susquehanna River in Pennsylvania without its hard drive.
Mexican leftist asks for presidential recount
MEXICO CITY | Tue Jul 3, 2012
The runner-up in Mexico's presidential election said on Tuesday he would ask election authorities to recount the votes from Sunday's contest, alleging it was riddled with fraud.
Andres Manuel Lopez Obrador, who finished about 6.5 percentage points behind President-elect Enrique Pena Nieto of the Institutional Revolutionary Party (PRI), said the election had been corrupted by PRI vote-buying and other abuses.
Stirring up memories of the 2006 election, when he refused to accept defeat and unsettled financial markets by calling out his supporters to stage massive demonstrations in the capital for weeks, Lopez Obrador followed through on hints he dropped during the campaign that he might contest the result.
He said his campaign would ask the Federal Electoral Institute to recount the votes.
"We're going to ask them to clean up the election and make it transparent," the he told reporters in Mexico City. "For the good of the democracy and the good of the country, they need to count all the votes."
Financial markets were unmoved by his announcement on Tuesday.
Lopez Obrador, 58, has repeatedly accused the telegenic Pena Nieto of using illicit funding, breaching campaign spending limits and being supported by Mexico's mainstream media...
U.N. takeover of the Internet must be stopped, U.S. warns
A U.N. summit later this year in Dubai could lead to a new international regime of censorship, taxes, and surveillance, warn Democrats, Republicans, the Internet Society, and father of the Internet Vint Cerf.
May 31, 2012
Democratic and Republican government officials warned this morning that a United Nations summit in December will lead to a virtual takeover of the Internet if proposals from China, Russia, Iran, and Saudi Arabia are adopted.
It was a rare point of bipartisan agreement during an election year: a proposal that Russian Prime Minister Vladimir Putin described last year as handing the U.N. "international control of the Internet" must be stopped.
"These are terrible ideas," Rep. Fred Upton, a Michigan Republican, said during a U.S. House of Representatives hearing. They could allow "governments to monitor and restrict content or impose economic costs upon international data flows," added Ambassador Philip Verveer, a deputy assistant secretary of state.
Robert McDowell, a member of the Federal Communications Commission, elaborated by saying proposals foreign governments have pitched to him personally would "use international mandates to charge certain Web destinations on a 'per-click' basis to fund the build-out of broadband infrastructure across the globe."
"Google, iTunes, Facebook, and Netflix are mentioned most often as prime sources of funding," McDowell said. Added Rep. Anna Eshoo, a California Democrat whose district includes Facebook's headquarters, many countries "don't share our view of the Internet and how it operates."
What prompted today's hearing -- and a related congressional resolution supporting a free and open Internet -- is a Dubai summit that will be convened by the 193 members of the U.N.'s International Telecommunications Union, which was chartered in 1865 to oversee international telegraph regulations.
Called the World Conference on International Telecommunications, or WCIT, the summit will review a set of telecommunications regulations established in 1988, when home computers used dial-up modems, the Internet was primarily a university network, and Facebook CEO Mark Zuckerberg was a mere 4 years old.
That review has created an opening for countries with a weak appreciation of free speech and civil liberties -- with Russia and China in the lead -- to propose the U.N. establish an new "information security" regime or create an alternative to ICANN, the nonprofit organization that has acted as the Internet's de facto governance body since the late 1990s.
Unless the U.S. and its allies can block these proposals, they "just might break the Internet by subjecting it to an international regulatory regime designed for old-fashioned telephone service," Rep. Greg Walden, an Oregon Republican said. (U.S. allies include Japan, Canada, Mexico, and many European countries.)
This is hardly the first time that the U.N. or its agencies wanted to expand their influence over the Internet. At a 2004 summit at the U.N.'s headquarters in New York, U.N. Secretary General Kofi Annan criticized the current system through which Internet standards are set and domain names are handled, and delegates from Cuba, Ghana, Bolivia and Venezula objected to what they said was too much control of the process by the U.S. government and its allies.
Two years later, at another U.N. summit in Athens, ITU Secretary General Yoshio Utsumi criticized the current ICANN-dominated process, stressing that poorer nations are dissatisfied and are hoping to erode U.S. influence. "No matter what technical experts argue is the best system, no matter what self-serving justifications are made that this is the only possible way to do things, there are no systems or technologies that can eternally claim they are the best," Utsumi said.
In 2008, CNET was the first to report that the ITU was quietly drafting technical standards, proposed by the Chinese government, to define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous. A leaked document showed the trace-back mechanism was designed to be used by a government that "tries to identify the source of the negative articles" published by an anonymous author.
December's meeting has alarmed even the Internet's technologists. The Internet Society, which is the umbrella organization for the Internet Engineering Task Force (IETF) and the Internet Architecture Board (IAB), sent a representative to today's hearing.
ISOC's Sally Wentworth, senior manager of public policy for the group, warned that the proposals to be considered are not "compatible" with the current open manner in which the Internet is managed.
Vint Cerf, Google's chief Internet evangelist, co-creator of the TCP/IP protocol, and former chairman of ICANN, said the ITU meeting could lead to "top-down control dictated by governments" that could impact free expression, security, and other important issues.
"The open Internet has never been at a higher risk than it is now," Cerf said.
George P. Bush: Ricky Martin Meets Hitler
Robalini's Note: Beware the next generation of the Bush clan. You heard it here first...
George P. Bush: A Political Dynasty's Young Hope
His great-grandfather was a senator, his grandfather and uncle presidents, his father governor of Florida. Now a new George Bush is contemplating going into the family business.
George Prescott Garnica Bush, known to friends as "P," is not just a chip off the old preppy block. The 36-year-old son of Jeb Bush and nephew of W. is Hispanic -- his mother, Columba, is from Mexico -- with brown skin, thick black hair, and a toothy, gleaming smile. He's a lawyer, a Navy vet who served in Afghanistan, and a political fundraiser who works to expand the Republican Party's outreach to Latinos and young people. Chatty without being overly polished, he lives in Fort Worth with his wife, whom he met in law school at the University of Texas, and runs half marathons in his spare time. It's as if the ruling class kept pumping out new, less WASPy, more modern products to keep up with changing demand.
Bush has been touted as a political prospect practically since he was old enough to walk. At 12, he spoke at his grandfather's first nominating convention; at 24, he recorded TV commercials for his uncle's 2000 campaign. ("I have an uncle who is running for president because he believes in ... opportunity for every American, for every Latino," he said in the ad. "His name? The same as mine, George Bush.") Of George H.W. Bush's 17 grandchildren, he once boasted of being the favorite.
Now, Texas and Bush family observers wonder if his time is drawing nigh. As soon as 2014, they speculate, he could run for Congress or state office in Texas.
In Washington this week to tout a new partnership on young voter outreach, Bush proved adept at the political art of coyly encouraging such speculation. "I'm weighing that in my own mind," he said of his political future. "I'm not specifically looking at anything right now, but yeah, I'd be open to it."
He would, he said, want to do it on his own terms, not the strength of his famous name.
"My family has always said ... if you're going to get into politics, do it for the right reasons, not because you've got to carry on something," he said. After graduating from Rice University, he noted, he "taught in an inner-city high school," then became a lawyer, launched an investment company and joined the military. At this point, he said, he's focused on his business, his marriage, and hopefully having kids.
"So I don't know," he said modestly, having swiftly and skillfully recited his sterling political resume. "I'm drawn to public service. I love politics, but from the sidelines."
For now, that is. Bush's Maverick PAC recently transformed from a Texas to a federal committee, and on Tuesday it announced an initiative to work with the YG Action Fund -- the super PAC extension of House Majority Leader Eric Cantor's political operation. Together, they hope to bring young voters and donors into the GOP fold -- a $5 million "effort to mobilize and elect the next generation of conservative leaders." He also has a Texas PAC that recruits Hispanic GOP candidates and frequently speaks on the need for a more moderate GOP line on immigration. (The current Republican nominee, Mitt Romney, has been outflanked by President Obama on immigration, Bush said Tuesday, but still has "an opportunity to lead" if he will "be aggressive" on the issue, perhaps by embracing the proposals of Senator Marco Rubio.)
Add up these efforts and it's clear that Bush is his family's missionary to the next American generation, the embodiment and bid for relevance of the multigenerational political clan. He's building a national network of up-and-coming Republican donors and, with his work to bring the party's message Latinos, bridging its widening gap with the demographic that stands to be pivotal to its future electoral prospects.
"If George P. ever runs, you better believe he will be a Republican that carries the Hispanic vote," says his friend Ana Navarro, a Republican consultant in Florida who is close to Jeb Bush. "He gets inclusiveness and the big-tent thing."
Navarro calls Bush "the real deal and a complete package -- has intellect, personality, good looks, business experience, military service, is bilingual and half Hispanic, and the family connections don't hurt."
Having been an up-and-coming political scion practically his whole life, Bush seems to finally be on the brink of stepping into his destiny, and if this is bad news for opponents of dynastic politics, it is music to the ears of Bushworld.
"A lot of his dad's friends would love to see him run for office," Navarro said. "I hope he gets around to it soon, so we're not all too old and tired to help on one of his campaigns."