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Kalman posted:As to the rest of it, your "we've tried it and it doesn't work!" isn't accurate. We haven't tried most of it. And other countries have schemes that I reject on first principles - the cure there is far worse than the disease. FTFY.
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May 2, 2016 15:20
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Nevvy Z posted:FTFY. Nah. Case law's on my side regarding this. Sorry you dislike forty years of precedent that we aren't going to regulate personal spending to influence elections because we value political speech, but I'm the one agreeing with Thurgood Marshall here.
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May 2, 2016 15:30
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Kalman posted:
Wait -- we're going backwards then. Earlier in the thread you said you agreed the Arizona decision should be overturned. The problem is that for this issue -- systemic corruption -- campaign spending, independent spending, and personal spending are functionally identical. The reason for that distinction is that some forms of spending give rise to the appearance of quid pro quo corruption and others don't (or rather don't to the same extent or in the same way). That isn't the concern here; the concern is a money Niagara drowning out all dissenting voices. So the cure has to be tied to the overall level of money spent in order to work. If it isn't, the private money just drowns out the public money, and the public funding system is abandoned and/or useless, and people end up literally buying elections. This is precisely the issue that Arizona was trying to address. quote:- the cure there is far worse than the disease. I think you need to support your premise here; Canada, the UK, New Zealand, etc. aren't exactly totalitarian hellholes. Kalman posted:Nah. Case law's on my side regarding this. Arizona was a five-four decision and the court has an open seat at this very moment. Hieronymous Alloy fucked around with this message at 15:43 on May 2, 2016 |
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May 2, 2016 15:34
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This thread is very confusing when two of the most prolific posters have the same avatar. Just sayin.
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May 2, 2016 15:57
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Kalman posted:Because when your best evidence is a dissent, you're admitting that the law says you're wrong and hoping that it gets changed. When that hope flies in the face of 40 years of decisions (Bellotti also suggested corporate expenditures caps weren't constitutional and that's almost forty years old, it's just that no one bothered to challenge them in the interim) it's typically a forlorn one. People point to the dissent because it shows that the outcome would have been different if the court had had one less Alito and one more Sotomayor. This could easily happen, for instance once the Scalia vacancy gets filled. In that case CU would have been defeated 5-4. If the difference between a ruling for and a ruling against simply comes down to what party nominates a judge that time, the outcome under the constitution is a lot less clear than you make it out to be. This also means that it is not at all impossible to change -- simply nominate a judge who expressly holds that CU was a bad decision, get that person confirmed, and find a way to reopen the debate. "The law" is not an objective reality that SCOTUS decisions unearth, it's the result of a debate between lawyers, constitutional scholars, politicians, the public, and special interest groups.
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May 2, 2016 16:00
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My understanding of McCain–Feingold was that it only prevented independent organizational money from being spent in explicit support of a candidate. That's probably about as far as it is potentially constitutional to limit independent political spending, and it really wasn't anywhere near as far-reaching as some posters here seem to think.
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May 2, 2016 16:08
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Kalman posted:Nah. Case law's on my side regarding this. Sorry you dislike forty years of precedent that... slavery, voting rights, gay marriage You're entire stance this entire conversation is "i'm right, I always have been, nothing can ever change, stop talking about it" we get it you can stop repeating it every other post.
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May 2, 2016 16:11
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Kalman posted:Because when your best evidence is a dissent, you're admitting that the law says you're wrong and hoping that it gets changed. When that hope flies in the face of 40 years of decisions (Bellotti also suggested corporate expenditures caps weren't constitutional and that's almost forty years old, it's just that no one bothered to challenge them in the interim) it's typically a forlorn one. Kalman posted:Nah. Case law's on my side regarding this. Sorry you dislike forty years of precedent that we aren't going to regulate personal spending to influence elections because we value political speech, but I'm the one agreeing with Thurgood Marshall here. This is ludicrous. Citizens United overturned two earlier decisions. We are not talking 40 years of precedent. We are talking returning to the precedent from before Citizens United. It is incredibly stupid that you keep arguing that Citizens United is some natural outgrowth of earlier precedent when it was a 5-4 decision overturning earlier precedent, that had a furious dissent from the person who wrote many of the most famous First Amendment decisions. It is a trivial, but correct, thing to say that Citizens United is currently law (though it is very precarious law as it is widely rejected in the legal community, one of the five is dead, and it's very likely his replacement will join the dissent). It is nuts to claim that overturning Citizens United would gut precedent. It's nuts to say that even if you're right that Citizens United was the right decision. Plus, the craziness of complaining people are citing dissents for a point is pretty apparent because (1) we know Citizens United is currently law, that is why there are no post-CU decisions that nullify it (and there are pre-CU decisions that Citizens United reversed) and (2) that the dissents have a very good shot of becoming the majority opinion next time a case makes it to the Supreme Court, because Scalia is dead and short of the Trumpenreich he's not being replaced with someone who shares his views. Even without that, citing to a dissent that now commands half the court is a perfectly reasonable thing to do when arguing what the decision should be: I mean, the reasoning commanded the votes of four Supreme Court justices so it clearly has some merit, and almost enough that it became law. As to your point about Thurgood Marshall, he's not on "your side". I assume you're referring to Buckley, but he recognized the problems of allowing the wealthy to have too much political power and dissented in part from Buckey v. Valeo: quote:One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune at his disposal is off to a significant "headstart." Of course, the less wealthy candidate can potentially overcome the disparity in resources through contributions from others. But ability to generate contributions may itself depend upon a showing of a financial base for the campaign or some demonstration of preexisting support, which, in turn, is facilitated by expenditures of substantial personal sums. Thus, the wealthy candidate's immediate access to a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be overcome, the perception that personal wealth wins elections may not only discourage potential candidates without significant personal wealth from entering the political arena, but also undermine public confidence in the integrity of the electoral process. But I'm sure you could say, well, he voted with the majority on the rest. But one of the foundational decisions that Citizens United overturned was Austin v. Michigan Chamber of Commerce, which upheld the ban on corporations from using treasury money to make independent expenditures to support or oppose candidates in elections. You know who wrote that opinion? Thurgood Marshall. https://supreme.justia.com/cases/federal/us/494/652/case.html quote:Justice MARSHALL delivered the opinion of the Court.
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May 2, 2016 16:46
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Again, the constant false assertion of corruption is doing all the lifting here. There's no cause for the restriction you want to instantiate.
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May 2, 2016 17:07
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Discendo Vox posted:Again, the constant false assertion of corruption is doing all the lifting here. There's no cause for the restriction you want to instantiate. From Stevens' dissent: quote:Undergirding the majority’s approach to the merits is the claim that the only “sufficiently important governmental interest in preventing corruption or the appearance of corruption” is one that is “limited to quid pro quo corruption.” Ante , at 43. This is the same “crabbed view of corruption” that was espoused by Justice Kennedy in McConnell and squarely rejected by the Court in that case. 540 U. S., at 152. While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society.
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May 2, 2016 17:18
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Discendo Vox posted:Again, the constant false assertion of corruption is doing all the lifting here. There's no cause for the restriction you want to instantiate. That's one of those things I think is simply apparent by being reasonably exposed to the current political process. If you don't, all I'll be citing are things you already know about and aren't sufficiently convinced by. It also might be the a major split between the Roberts wing and the more liberal wing of the Court, which mirrors what we're discussing, about just what counts as corruption. I view the corruption of the system in general - even if no particular legislator has been guilty of the sort of explicit corruption that can be criminalized - as a problem that creates a compelling state and federal interest. The other issue is that people can point to the presidential elections as a "look, it's not so bad" because the big money opposed Obama in 2012 and will oppose Clinton in 2016 and Obama won and Clinton is favored. But the farther downballot you get, the less that's true - and farther down matters, because winning a state legislature lets you gerrymander that state legislature AND its congressional districts. Winning judicial elections lets you gut portions of state constitutions. But I'm sure you've seen all those and if your opinion hasn't been changed there's not much I can point to that will. But everyone in this discussion is broadly familiar with the current influence money is having on politics so I don't really see the point in belaboring it. If this were a court, of course we'd need to do that because you have to lay it out in your papers, but on an internet politics forum we can rely on everyone's general awareness of the current state of politics.
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May 2, 2016 17:39
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If someone's position is literally "No this is perfectly fine and is not corruption" then we should probably all save our breath because nothing is going convince them. I realize this is debate and discussion, but I think we all have better things to do than debate with someone who insists the sky is red.quote:the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy  https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf 30 TO 50 FERAL HOG fucked around with this message at 17:47 on May 2, 2016 |
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May 2, 2016 17:41
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BiohazrD posted:If someone's position is literally "No this is perfectly fine and is not corruption" then we should probably all save our breath because nothing is going convince them. I realize this is debate and discussion, but I think we all have better things to do than debate with someone who insists the sky is red. To me, that's the core of the problem. A rigorous definition of "corruption" is necessary if you're going to have laws that prohibit one kind of behavior as corrupt, but allow another because it is not. That people obviously well-versed in the law can't even agree is pretty telling. What's obvious to one is not at all obvious to the other.
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May 2, 2016 17:47
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So on another topic, an opinion was released today, with Sotomayor and Roberts dissenting together. I have no idea what this case is on about. Anyone know?
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May 2, 2016 17:49
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Deteriorata posted:To me, that's the core of the problem. A rigorous definition of "corruption" is necessary if you're going to have laws that prohibit one kind of behavior as corrupt, but allow another because it is not. Roberts' dissent from CU was just posted but here you go quote:On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “ ‘undue influence on an officeholder’s judgment’ ” and from creating “ ‘the appearance of such influence,’ ” beyond the sphere of quid pro quo relationships. Id., at 150; see also, e.g., id., at 143–144, 152–154; Colorado II , 533 U. S., at 441; Shrink Missouri , 528 U. S., at 389 The definition of corruption is not that important. As the appearance of influence is sufficient.
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May 2, 2016 17:50
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BiohazrD posted:Roberts' dissent from CU was just posted but here you go You've just moved the goalposts. Define what "appearance of corruption" is so we can pass laws to avoid it. Note that your definition must be rigorous and objective, agreeable to all.
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May 2, 2016 17:52
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Deteriorata posted:You've just moved the goalposts. Define what "appearance of corruption" is so we can pass laws to avoid it. Note that your definition must be rigorous and objective, agreeable to all. No it doesn't. What the hell are you even talking about? This idea that a test must be objective and agreeable to all is nonsense, especially in the first amendment space. If you doubt me, define "public figure" in a rigorous and objective way, agreeable to all.
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May 2, 2016 17:53
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Discendo Vox posted:Again, the constant false assertion of corruption is doing all the lifting here. There's no cause for the restriction you want to instantiate. According to you. Yet clearly lots of other people disagree so you saying "nononono" doesn't seem to be getting anywhere. Maybe you can just let the discussion proceed and we'll all make a little mental note that you disagree and keep talking about it. Fair? silvergoose posted:So on another topic, an opinion was released today, with Sotomayor and Roberts dissenting together. I have no idea what this case is on about. Anyone know? Actually pretty straightforward and I'm with them. quote:Petitioner Samuel Ocasio, a former police officer, participated in a quote:JUSTICE SOTOMAYOR, with whom THE CHIEF JUSTICE
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May 2, 2016 17:57
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evilweasel posted:No it doesn't. What the hell are you even talking about? This idea that a test must be objective and agreeable to all is nonsense, especially in the first amendment space. What constitutes the appearance of corruption is going to vary enormously depending on your point of view. Finding a position that even a majority agrees with would be all but impossible. Yes, I was using a bit of hyperbole to suggest how difficult the task would be.
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May 2, 2016 17:59
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The idea that we need to carefully define corruption and the appearance of corruption can be put to bed by this majority decision which upheld a ban on the personal solicitation of donations by judicial candidates based on the compelling state interest in avoiding the appearance of impropriety in its judiciary:quote:The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling. Now, Roberts feels this only applies to elected judges, not politicians, and would strenuously argue against the expansion of this doctrine to politicians. But it makes clear that it is not necessary that we exhaustively and objectively prove such a common-sense concept. As a separate note, that this opinion's eyerolling at Justice Kennedy's ranting about what a terrible violation of speech it is to ban personal solicitation of donations is well-deserved and fantastic, coming from Roberts, and roughly matches my opinion of the parade of horribles that people come up with from standard campaign finance laws: quote:By any measure, Canon 7C(1) restricts a narrow slice of speech. A reader of JUSTICE KENNEDY’s dissent could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts, approving “state censorship” that “locks the First Amendment out,” imposes a “gag” on candidates, and inflicts “dead weight” on a “silenced” public debate. Post, at 2–4. But in reality, Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time. Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, “Please give me money.” They can, however, direct their campaign committees to do so. Whatever else may be said of the Canon, it is surely not a “wildly disproportionate restriction upon speech.” Post, at 1 (SCALIA, J., dissenting). edit: Deteriorata posted:What constitutes the appearance of corruption is going to vary enormously depending on your point of view. Finding a position that even a majority agrees with would be all but impossible. I think that Roberts quote above sums up my response to this nicely.
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May 2, 2016 18:06
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Nevvy Z posted:
This line in the case pretty much solves it the other way for me: quote:As all parties agree, the type of extortion for which petitioner was convicted—obtaining property from another with his consent and under color of official right—is the “rough equivalent of what we would now describe as ‘taking a bribe.’ ” Evans v. United States, 504 U. S. 255, 260 (1992). To prove this offense, the Government “need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Once you've made that concession, I don't see how you get out of being guilty as hell. If you conceded that the statute was worded oddly but boils down to "taking a bribe", then it makes perfect sense that the person giving the bribe can be in a conspiracy with the person taking the bribe.
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May 2, 2016 18:18
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BiohazrD posted:If someone's position is literally "No this is perfectly fine and is not corruption" then we should probably all save our breath because nothing is going convince them. I realize this is debate and discussion, but I think we all have better things to do than debate with someone who insists the sky is red. Will people stop citing that circular pile of garbage! The authors operationalized their definitions based on the outcomes they wanted to claim, used selective data, and bullshitted their entire representation theory framing. Wakefield published more valid research. Nevvy Z posted:According to you. Yet clearly lots of other people disagree so you saying "nononono" doesn't seem to be getting anywhere. Maybe you can just let the discussion proceed and we'll all make a little mental note that you disagree and keep talking about it. Fair? Not when they can't find or demonstrate the harm they assert, no. The entire argument is to prevaricate between 1) arguing the sufficiency of "appearance", as a) undefined, or b) cited to different settings, and 2)asserting that the corruption is so obvious it doesn't need to be demonstrated. "Some people have more influence on law than others" is not antidemocratic. Money having an influence in politics in the form of speech is democratic discourse.
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May 2, 2016 18:32
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evilweasel posted:The other issue is that people can point to the presidential elections as a "look, it's not so bad" because the big money opposed Obama in 2012 and will oppose Clinton in 2016 and Obama won and Clinton is favored. Although it will finance elections for both parties, in 2016 the big money actually supports Clinton over Trump.
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May 2, 2016 18:34
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Well we've now moved from corruption to "systematic corruption". I don't what that is. Assuming some possible definitions I hope you can see how the Supreme Court would never directly address that.
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May 2, 2016 18:39
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euphronius posted:Well we've now moved from corruption to "systematic corruption". I don't what that is. The concept of systemic corruption does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling. and in a less snarky response, bullshit: quote:When we asked in McConnell “whether a compelling governmental interest justifie[d]” §203, we found the question “easily answered”: “We have repeatedly sustained legislation aimed at ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’ From the Stevens dissent in Citizens United. So, while I'm sure Kalman will be right along to complain that's a dissent (never mind that it is quoting a majority opinion later overturned, by one of the giants of First Amendment jurisprudence), it's very, very clear that parts of the Court is willing (and has been willing) to address it so, your confusion aside, it is clear that the Supreme Court could indeed directly address that. evilweasel fucked around with this message at 18:44 on May 2, 2016 |
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May 2, 2016 18:41
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Discendo Vox posted:Money having an influence in politics in the form of speech is democratic discourse. Yeah exactly. The label of systematic corruption confuses me. Like I understand this system of government is not ideal but this is what we have.
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May 2, 2016 18:42
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euphronius posted:Well we've now moved from corruption to "systematic corruption". I don't what that is. That's part of why campaign finance is more a legislative issue than a judicial one. The problem is the Court keeps tossing out legislative attempts to address it.
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May 2, 2016 18:43
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Discendo Vox posted:Money having an influence in politics in the form of speech is democratic discourse. It is not, and see above for Justice Stevens specifically discussing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas."
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May 2, 2016 18:45
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Hieronymous Alloy posted:That's part of why campaign finance is more a legislative issue than a judicial one. The problem is the Court keeps tossing out legislative attempts to address it. Right because in part our first amendment and its jurisprudence. We need a constitutional convention to address the issues "systematic corruption". But that would open a whole can of worms oh boy.
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May 2, 2016 18:45
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euphronius posted:Right because in part our first amendment and its jurisprudence. It boggles my mind how anyone can be dumb enough to think that a constitutional amendment is required to overturn a 5-4 decision that has been controversial ever since it was made, and where there are currently only four votes that support it. Like, putting disputes over what the answer should be aside, it's ludicrous to hem and haw about the need for a constitutional amendment and argue that overturning Citizens United can't be reconciled with 1st Amendment jurisprudence because that's what the law was from 2003 to 2010. How are you not aware of this?
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May 2, 2016 18:48
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Wasn't talking about CU (which I like anyway and think has been good).
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May 2, 2016 18:50
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euphronius posted:Wasn't talking about CU (which I like anyway and think has been good). "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas" is a quote from McConnell, one of a long line of cases severely limiting political spending by corporations based on its corrupting effect, that CU overturned. This is an easy fix for the Supreme Court and there's no reason to act like the Supreme Court could not or would not do it: there are four votes for most of the legal lines of argument being advanced against CU and its ilk and it's very likely that the next judge will make that a 5 vote majority. So it's wrong to act like the Supreme Court will not go there - they have gone there in the past, and exactly half of the current court still wants to go there. The only useful discussion is should they go there.
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May 2, 2016 18:58
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I agree with that obviously. I mean I agree the court could distinguish or partially overturn cu. I was talking about "systematic corruption" tho. I thought obviously but apparently not.
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May 2, 2016 19:01
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evilweasel posted:No it doesn't. What the hell are you even talking about? This idea that a test must be objective and agreeable to all is nonsense, especially in the first amendment space. hell, define pornography
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May 2, 2016 19:13
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euphronius posted:I agree with that obviously. I mean I agree the court could distinguish or partially overturn cu. But that's part of the foundation of all the previous decisions limiting corporate contributions and why I keep quoting that line from McConnell and the CU dissent - that corporate money had or would have a corrosive effect on the democratic process, and that states and the Federal Government were permitted to limit it to avoid those corrosive effects. Systemic corruption is just another way to phrase it: that the system itself is being biased through applying money in order to make the system produce less democratic results. The Supreme Court doesn't demand rigorous definitions for concepts like that because it's not all that useful to rigorously define it when everyone knows generally what you're talking about, and when it's just not possible to be mathematically precise. It's basically going to be the same test that's always been applied "well, this seems important, and we think that it's important enough and the restrictions are drawn in such a way as to maximize the benefit while minimizing the harm (or it's not) so that we will uphold it (or strike it down)". Anything involving the first amendment is always going to come down to these sorts of fuzzy definitions. In many cases the Supreme Court gets around that by saying "well, the actual line is going to be fuzzy but here's an area where we can agree, as a rule, that a restriction is always banned and we'll have to discuss it if it's on the other side of this line" to minimize the uncertainty and to minimize the need for litigation over what isn't a grey area. But you never really avoid it, even the bright-line rules always have fuzzy definitions in them that you can't really draw out precisely (like "public figure"). The functioning of the democratic process is so important that people have done serious legal theories based on the idea that it is the most important principle that the Supreme Court is required to protect. That may be going a little far, but it's not novel and so the Supreme Court isn't going to bounce arguments on one of the most contentious issues of our time about the democratic process because of fuzziness over definitions. evilweasel fucked around with this message at 19:18 on May 2, 2016 |
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May 2, 2016 19:16
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"Applying money" is a great euphemism for speech, here. I love it. I also enjoy "less democratic results", because it's not reflective of how democratic republicanism is supposed to work. I also appreciate that we've now shifted to corporate spending, in particular. Absolute majoritarianism has never been a good hallmark of government, and variations in how much civic majorities prefer particular policy outcomes aren't material to the health of the general democratic system. If the evidence of "massive, systematic corruption" you seek is Gilens & Page, then please understand that the article is white noise headline bait- it doesn't even demonstrate the non-majoritarian outcomes that it claims, because the authors cherry-picked their data in about 10 different ways to get to a predetermined conclusion.
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May 2, 2016 19:55
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Discendo Vox posted:Not when they can't find or demonstrate the harm they assert, no. Stevens cites a variety of supporting claims for his stance that massive spending is either a form or corruption or creates the appearance of corruption, both from independent sources as well as from former SCOTUS decisions.
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May 2, 2016 20:04
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Condiv posted:hell, define pornography You realize that it took like 8 years for the court to fix that problem and it has been fixed for more then 40 years right?
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May 2, 2016 20:06
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botany posted:Stevens cites a variety of supporting claims for his stance that massive spending is either a form or corruption or creates the appearance of corruption, both from independent sources as well as from former SCOTUS decisions. Do you have a particular point in his decision for these? I'm working my way through to find them, but most of the opinion appears to hinge on the corporate personhood argument, and so far I don't actually see any citations to it as of page 15. So far the closest is FNs 14 and 15, but neither is on point with the amount spent claim, and 15 was left open by the majority opinion anyways. edit: it looks like Stevens' arguments regarding amount are always expressed via the corporate/union antidistortion argument, via Austin. Are these what you're referring to? They appear to hinge on a different argument than pure quantity, particularly starting at 32. edit 2: the language on 27 beginning at "In many ways" is a pretty nice illustration of eliding the content/viewpoint analysis problem. vvvv Dangit, I shoulda checked those first, it would've saved me a bunch of pages. Discendo Vox fucked around with this message at 21:23 on May 2, 2016 |
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May 2, 2016 20:31
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botany posted:From Stevens' dissent: Someone should cite this as amicus in McDonnell, quick.
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May 2, 2016 20:45
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