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Shaken, Not Stirred: The Supreme neo-Framers (likely) will continue their perversion of the First Amendment speech clause tomorrow.

In an email this morning, Bill H asked me whether I know much about a case called Harris v. Quinn, in which the Supreme Court will announce the likely 5-4 majority’s ruling tomorrow.  I responded:

I know LOADS about it, Bill, and wrote about it–and about a bizarre comment by Alito during the argument on the case–right after the argument back in Jan. and have mentioned it two or three times since then.  It is really striking that the Supreme Court agreed to hear the case in order to consider the claim: that requiring public employees to pay a fee (not the full union dues, but instead some small percentage of the membership dues as compensation for the union’s legal obligations by which employees who opt out of membership nonetheless gain the benefits of the union contract (pay, benefits, job protections), violates the employee’s First Amendment speech rights.

But what’s downright stunning is that at the argument, Alito said he believed that the very existence of public-employee unions violates the First Amendment because–seriously; he said this–the non-member union-contract beneficiary might want small government.  This, from someone whose first official act as a justice was to join Kennedy (the opinion’s author), Scalia, Thomas and Roberts in ruling that a district attorney did not violate an assistant district attorney’s First Amendment speech rights by retaliating against him for writing an internal memo saying that he believed that a cop had falsified some evidence in obtaining a search warrant.  That opinion, in a case called Garcetti v. Ceballos, was and remains extremely controversial–it was shocking, really–and played a key role in a case, called Lane v. Franks, that the Court decided two weeks ago.

I suggested in my posts about Harris and about that comment by Alito’s during the argument that the non-union beneficiary of a public-employee union contract had the option of quitting his job or refusing the negotiated benefits in order to reduce the size of government.

I had predicted from the outset that the opinion in Harris would be issued on the same as the opinion in Hobby Lobby, so that news coverage of Hobby Lobby would overwhelm coverage of Harris, and I was right. Because of the way in which the Court divvies up majority-opinion-writing among the justices, it is clear that Alito was assigned to write the opinion in Harris.

There is a (very) outside chance that one justice changed his mind since the week of the argument (when the vote was taken and the majority-opinion-writing was assigned), and that someone other than Alito therefore is writing a 5-4 opinion rejecting the outrageous First Amendment claim.  Something sort of like that happened in a case called Bond v. US, argued last Oct. and decided [on Jun. 2], a case that they planned to use to advance their states’-rights juggernaut but instead ended up making an important statement about abuse of prosecutorial discretion–a ground on which they never, ever, would have even considered agreeing to hear the case (okay, maybe they would have, but only because the prosecutor was a federal one, not a state one; but even so, probably not).  In that case the actual outcome didn’t change, nor did the author of the opinion (Roberts), but the basis for the ruling, and the statement of law, changed significantly.

I call Bond the Stirred, Not Shaken opinion.  I have a theory about the reason for Roberts’ late change of heart, and I’ve been intending to post in-depth about it but haven’t yet.

I do expect an outrageous 5-4 opinion by Alito in Harris, though.

Yes, the undermining of public-employee unions–like state-courts’ rights to baldly violate individuals’ non-gun-ownership, non-religious, non-real-estate-regulation-er-takings constitutional rights, and to supersede Congress’s Fourteenth and Fifteenth Amendment powers to buttress, say, individuals’ voting rights–is definitely on the List of Circa 1983 Movement Conservative Legislation-via-Supreme-Court-Pronouncement THINGS TO GET DONE.

And done, these things will get. Now that the chief justice has expressly conceded that their end game has been all along a Court-mandated plutocracy in which legislators’ constituents are those who pay to become one, irrespective of any connection between the location of the constituent/benefactor’s voting residence and the legislator/beneficiary’s legislative district–now that these five justices have used the First Amendment speech clause to formally institute a poll tax, and redefined the term “constituent,” and therefore “democracy,” beyond former recognition*–it’s time for them to get back to other uses of the newly reconstructed First Amendment speech clause.  In the name of the Framers.

The original ones, of course!

—-

*In his Apr. 2 opinion in McCutcheon v. FEC, Roberts redefined “constituent” as an American who, irrespective of place of residence, donates to a political campaigns in sufficient amounts to buy the candidate or incumbent’s proxy vote on legislation, and “democracy” as plutocracy.  The specific statement is:

[C]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon­sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.

Ergo–voila! It’s official; we have a plutocracy.

Just in case you were wondering.

[Clarification added 6/29 at 5:08 p.m.]

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Chris Cillizza Misses the Point. (The most important point, anyway.)

Anecdotal evidence, the basis of so much journalism prior to the rise of the data movement and still, to my mind, over-relied upon — is just that: anecdotal. Roughly 65,000 people voted in the Cantor-Brat primary; Brat won by more than 7,200 votes. Assuming that what a non-scientific sample  of 1, 10 or even 100 people in the district thought about Cantor (or Brat) in the run-up to the race — the shoe-leather reporting prized by Carr — was indicative of how 65,000 people were planning to vote seems to me to be somewhat misguided. (Now, if all 100 people a reporter talked to in the district loudly derided Cantor as an out of step liberal, then I take back my previous point. But, my guess is that wouldn’t have happened.)

Should I have seen Eric Cantor’s loss coming?, Chris Cillizza, Washington Post, today

I assume that Cillizza is, as he says, responding to New York Times writer David Carr’s column on Monday, “Eric Cantor’s Defeat Exposed a Beltway Journalism Blind Spot,” rather than also to, say, my AB post from Wednesday, in which I discuss Carr’s column and note that what the national news media missed, but what the local political reporters Carr mentions recognized, was not simply local antagonism toward Cantor but, to an apparently substantial extent, local antagonism toward Cantor because he is the very embodiment of the politician who shares John Roberts’ particular view, stated expressly in his opinion two months ago in McCutcheon v. FEC, of who or what a politician’s “constituent” is.

In my post on Wednesday (picked up in full elsewhere, I’m glad to see), I noted that the in-depth analysis of it by political several political journalists now that the post-Canter-defeat dust has settled is that critical to Brat’s victory was an anti-plutocracy theme and that Cantor provided the perfect foil for it. Most of the articles discussing this say that the Chamber of Commerce–an explicit target of Brat’s during the campaign, and other major players among the Republican business constituency, who Roberts described in McCutcheon as constituents entitled to secretly help draft legislation by dint of their ability to purchase that right, concur and are springing into action.  As Gail Collins summarized it in her New York Times column yesterday:

The defeat of the House majority leader, Eric Cantor, terrified many of the party establishment’s supporters, particularly since Cantor’s opponent ran against Wall Street, big business and bank bailouts.

It’s a problem, if you’re a big-money donor, to be worried that your party is being taken over by crazy people who will alienate the voters in a national election by opposing immigration reform and contraception. It’s a catastrophe to be worried that it’s being taken over by economic populists.

Cillizza and, I suspect, a number of other professional political analysts remain wedded to what is quickly becoming an outdated model.  They’re missing some important handwriting on the wall, which is that huge swaths of the public are dismayed at the meaning of “constituency” and “democracy” as defined in the New Dictionary of Supreme Court English, edited by Roberts and Anthony Kennedy.  As I said in my Wednesday post:

Call McCutcheon v. FEC the new poll tax. I do.  After all, John Roberts, in a surprising bit of honesty, described it in his opinion for the majority as pretty much that in his opinion in that case earlier this year. “Ingratiation and access . . . are not corruption,” he wrote, quoting Anthony Kennedy’s the Court’s decision in Citizens United, and then explained:

“They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

But Cantor’s constituents–the ones that Roberts says should dictate Cantor’s policy positions and write legislation he proposes–couldn’t vote in Virginia’s 7th Congressional District last week. The district is too far away for them to commute to Wall Street, or to Wichita, KS, or downtown Houston, or Raleigh, NC.  And surprisingly, it turns out that Brat actually ran what was in large part a progressive economic-populist–an anti-plutocracy–campaign highlighting who exactly Cantor’s  constituents (to borrow Roberts’ term) are.  So, now that that is being widely reported and is sinking in, hedge-fund types and the Chamber of Commerce crowd apparently indeed are starting to pray.

Apart from the obvious reason for the definitional chasm between Roberts & Co. and most people embedded in that statement by Roberts–specifically, the definition of “democracy”–add to the rapidly growing list of Roberts’ casual redefinitions of common words this new definition of “constituent,” one disembodied from residency in the candidate or officeholder’s actual election jurisdiction.

Cantor was beaten, in substantial part, it certainly appears, by Citizens United and McCutcheon–by a backlash toward the political system that is now, bizarrely but expressly, institutionalized as a matter of constitutional jurisprudence.  Turnout was very heavy, far heavier than it was in the primary in that district two years ago, when apparently all the candidates were fine, thank you very much, with poll-tax democracy.

I titled that post “David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.”  And in the last two paragraphs, I elaborated upon the title, writing:

Brat, for his part, appears to be about to run a general-election campaign consisting mainly of slogans and non sequiturs.  No surprise, of course; slogans, cliches, non sequiturs are the very essence of the current Republican Party–both factions of the Tea Party/Republican Party. The Paul Ryan/Koch brothers/Chamber of Commerce faction and also, because of the mutual exclusivity of its premises, the (newly named) David Brat faction. That’s simply the nature of this beast.

But the divorce case originally known as Movement Conservatives v. Movement Conservatives, filed June 10, 2014 in the Richmond, Virginia Court of Public Opinion, is a class action.  I just checked the docket for the case, and it’s now called Movement Conservatives, et al. v. Movement Conservatives.  And already, there have been several amicus briefs filed on behalf of the petitioners.  And the Supreme Court may not decide the outcome of it after all.

That last sentence is true; the Supreme Court has lost control of the narrative on this.  It has tried, but unsuccessfully, to decree new non-legal definitions of “corruption,” “democracy,” “constituent,” “person,” and “speech.”  It is losing its case in the courts of public opinion in most jurisdictions around the country; that much already is clear.  But the Court will decide, very possibly–in other litigation; actual imminent litigation, in Wisconsin state court and very possibly in federal court–whether or not two key provisions of Wisconsin state, and of still-standing federal, campaign-finance statutes violate five Supreme Court justices’ view of the First Amendment within the peculiar prism of their definitions of those words.

Best as I can tell from news reports in the last 24 hours, the apparently forthcoming state prosecution of a few people involved on behalf of Gov. Scott Walker and Republican state legislators in the Wisconsin recall elections in 2011 and 2012, and perhaps of Walker himself, will necessarily involve challenges by the defendants to the constitutionality of Wisconsin’s (and possibly eventually to the federal government’s) statutory prohibitions against consort between election campaigns and PACs purporting to be “operated exclusively for the promotion of social welfare” and unaffiliated with a political party or candidate.

The PACs are not subject to donor-amount limits, and they also can qualify for non-profit tax status if they meet a low bar for what constitutes “exclusively for the promotion of social welfare”.

But whether operated exclusively for the promotion of social welfare, as “social welfare” is defined by most people, or instead as it will be defined in New Dictionary of Supreme Court English, these groups embody a central feature of democracy as defined in the April 2, 2014 edition of that Dictionary—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. And Scott Walker and the Republican legislators who were subject to possible recall adopted the very definition of “constituent” included in the current edition of the New Dictionary. Most of the people and groups with which they appear to have been coordinating were Walker’s and the legislators’ constituents only in the newly defined sense.  They were not residents of Wisconsin and therefore could not show a valid photo ID at a polling place in Wisconsin. (They would have to vote by absentee ballot.)

But Walker & Friends still remain a bit too precocious in one respect.  The Court’s majority has not yet redefined “democracy” to include as a central feature a First Amendment right of constituents (under either definition, traditional or new) to hide their identity when contributing directly to a political campaign.  And it well may not do so.  Kennedy indicated in his opinion in Citizens United that he does not believe that secret donations to campaigns embody a central feature of democracy.  Uh-oh.

Ultimately, though, what matters most is the outcome that civil litigation, Movement Conservatives, et al. v. Movement Conservatives, because not all five of the current editors of the New Dictionary are young and healthy–and because of the political facts illustrated by the surprisingly high turnout in the open primary in Virginia’s 7th Congressional District and the predominant campaign theme of the winner.  But I don’t expect Chris Cillizza to get that.

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David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.

Uh-oh, hedge fund managers and Goldman Sachs partners.  Obviously, few of you are evangelical Christians.  So this guy, who wants good markets, has his sights set on you.  But, luckily not on that carried-interest tax-benefit thing y’all get to use, praise the Lord.

So maybe you hedge-fund types can skip church again this Sunday, after all.

— David Brat’s Golden Rule, me, Angry Bear, Jun. 13

I was wrong. The dust is all but settled now, six days after Brat’s highly unexpected defeat of Eric Cantor, and it looks like what defeated Cantor was not that he was too liberal for Tea Party tastes.  It was instead that he was too Establishment-Conservative for a spontaneous, makeshift coalition of Tea Partiers, liberal Democrats (it was an open primary; it was not limited to Republican voters), and others who reject the practice–and the now-formal claim by five Supreme Court justices–that it is necessary and desirable in our constitutional democracy that legislation and other government policy be dictated by those who can afford to buy it.

Call McCutcheon v. FEC the new poll tax. I do.  After all, John Roberts, in a surprising bit of honesty, described it in his opinion for the majority as pretty much that in his opinion in that case earlier this year. “Ingratiation and access . . . are not corruption,” he wrote, quoting Anthony Kennedy’s the Court’s decision in Citizens United, and then explained:

They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

But Cantor’s constituents–the ones that Roberts says should dictate Cantor’s policy positions and write legislation he proposes–couldn’t vote in Virginia’s 7th Congressional District last week. The district is too far away for them to commute to Wall Street, or to Wichita, KS, or downtown Houstonor Raleigh, NC.  And surprisingly, it turns out that Brat actually ran what was in large part a progressive economic-populist–an anti-plutocracy–campaign highlighting who exactly Cantor’s  constituents (to borrow Roberts’ term) are.  So, now that that is being widely reported and is sinking in, hedge-fund types and the Chamber of Commerce crowd apparently indeed are starting to pray.

Apart from the obvious reason for the definitional chasm between Roberts & Co. and most people embedded in that statement by Roberts–specifically, the definition of “democracy”–add to the rapidly growing list of Roberts’ casual redefinitions of common words this new definition of “constituent,” one disembodied from residency in the candidate or officeholder’s actual election jurisdiction.

Cantor was beaten, in substantial part, it certainly appears, by Citizens United and McCutcheon–by a backlash toward the political system that is now, bizarrely but expressly, institutionalized as a matter of constitutional jurisprudence.  Turnout was very heavy, far heavier than it was in the primary in that district two years ago, when apparently all the candidates were fine, thank you very much, with poll-tax democracy.

Actually, even before I wrote my post last Friday I had read an article in the Washington Post by Jia Lynn Yang, titled “Why Cantor’s loss is especially bad news for big business,” detailing Brat’s campaign and challenging the presumption that he won mainly on a  standard-issue far-right anti-immigration, Cantor-is-too-liberal-for-the-Tea-Party platform.  But because his cliche-ridden Ayn Rand, anti-tax, anti-government-regulation positions and loopy justifications for them–which were the subject of most of my Friday post–are, let’s just say, hard to reconcile with such things as, y’know, regulation of banks and hedge funds and objections to the fact of legislation being written by the Koch brothers and the Chamber of Commerce, I figured that the initial analyses were right: Cantor was defeated because he voted to end the government-shutdown and to increase the debt ceiling and wasn’t quite hard-line enough on immigration, and therefore flunked the purity test.

particularly jarring hallmark of the current Supreme Court majority’s aggressive Movement Conservative restructuring of American law in the image of 1980s Republican Party platforms is these justices’ spontaneous, unsupported declarations of fact upon which they claim to base the rulings.  These are statements of fact for which there is no support in the case record. Facts such as what motivates elected public officeholders, and also facts about people’s opinions, perceptions, conclusions concerning matters such as the effect of huge campaign contributions on the politician-beneficiaries, that are, most people recognize, contrary to actual fact.  Most people who are not a Movement Conservative Supreme Court justice and who are not named the Mad Hatter consider the idea of large campaign contributions in exchange for legislation that they offer the very essence of political corruption in a Democratic system.

And some of those people live in Virginia’s 7th Congressional District and voted in the Republican primary there last week, for Brat, entirely or largely because he campaigned against Cantor as Evidence Exhibit A belying Kennedy’s and Roberts’ weirdly loose pronouncements of fact in Citizens United and McCutcheon.  The lobbyists and big-money donors that Cantor met with for breakfast on the first Tuesday of each month and that he dined with at steakhouses were indeed his true constituents, and Roberts’ pretense that they or their corporations reside in the Richmond, VA area is not even just a syllogism like so much else Roberts claims; it’s patently, tangibly false.

Sure, the pronouncements of fact in Citizens United and McCutcheon were just window dressing, sort of a nod to the idea that they were not really overturning Supreme Court precedent, just refining it–a John Roberts routine that has become an eye-roller.  But actual people do see through it.  As long as the Tea Party was united in going along with this, all was fine.  But now something has happened: the Tea Party itself is split.  There is a growing contingent, apparently now reaching a politically significant number, that is anti-plutocracy.

I’ve thought ever since McCutcheon was released in early April that the Democratic congressional candidates should simply read two or three sentences from that opinion at their rally and include the sentences in some of their ads.  Brat himself didn’t do that, exactly, but statements made throughout his campaign directly countered the factual claims of the Supreme Court bare-majority.

Ultimately, because that part of his message can’t be reconciled with the standard Tea Party dogma or with the part of the pro-corporate Republican message that he parrots, his political message is incoherent.  And in some respects, as in the quotes from an academic paper of his that were the main subject of my post last Friday, they’re weird and flaky. I don’t know how statements like those I quoted from his academic paper manage to pass as academic research; they were overt statements of his political and religious beliefs, not the result of economic or political science research, but they were in a purported academic paper and not (apparently) repeated in his campaign. The fact is that you can’t reconcile Ayn Rand’s philosophy of little or no regulation of corporations and Wall Street, no social safety net, and extremely low taxes with Brat’s campaign promise to represent ordinary people as against the policy dictates of oligarchy and plutocracy.  And it is a fact; you can’t.

Nor can you reconcile it with the mindless states’-rights cliches, whether issued by Anthony Kennedy and John Roberts or by David Brat.  Apart from the aggressive three-decades-long states’-rights-to-violate-fundamental-constitutional-rights-of-individuals-as-long-as-those-rights-aren’t-part-of-Movement-Conservative-dogma dogma–which is now, finally, being rejected by fairly broadly by younger libertarians (read: too young to believe that it’s still the Reagan era) even of the right–the fact is that ALEC writes swaths of legislation for Republican state legislators.

In a June 12 Politico article, this one titled “Dave Brat and the Rise of Right-Wing Populism,” the writer, Geoffrey Kabaservice, points out that Laura Ingraham, “appearing on Brat’s behalf at a campaign event on June 3, even rejoiced that ‘Some people on the left are gonna work with us! I’d rather work with some people on the left today than work with some people in the GOP establishment who scorn us.’” The article’s subtitle is “Cantor’s loss isn’t about immigration or personality. There’s a bigger story.”

There certainly is.  And several similar articles make the same point, in detail. One, titled “Why Big Business Fears the Tea Party,” a June 15 Politico article by Michael Lund, says:

The primary election defeat of House majority leader Eric Cantor by the little-known Tea Party conservative David Brat has shocked business and financial elites as well as politicians and pundits. Conservative intellectuals such as Tim Carney have been arguing for a while that the right should adopt a new populism that targets “crony capitalism” and the collaboration of public and private elites at the expense of workers and small businesses. Brat is the first conservative candidate to have achieved a major electoral success by taking this line. He denounced Cantor for being too close to Wall Street and K Street, explained business support for immigration reform as a ploy for cheap labor and demonized the Chamber of Commerce and the Business Roundtable.

In his views about the minimum wage, Social Security and Medicare, Brat is a fairly conventional libertarian, but he became the first candidate to oust a sitting House majority leader since the post was created in 1899 not by speaking the libertarian argot of Ayn Rand and Friedrich von Hayek but by deploying the populist language of Thomas Jefferson, Andrew Jackson and William Jennings Bryan.

With that kind of talk, Brat and like-minded militants on the right are undermining the philosophy of market populism that has united the Main Street and Wall Street wings of the Republican party since the days of Barry Goldwater and Ronald Reagan. Market populism recycles the ideology of classic Jeffersonian populism—but expands the definition of the virtuous, self-reliant yeoman to include not only small business owners but also big business executives and capitalists.

“Sooner or later,” Lund continues, “the authentic Jeffersonians in the market populist coalition were bound to notice that the actual agenda of conservative politicians has less to do with the needs of small business owners and small farmers than with the desires of big companies and the financial industry.”  They’ve now noticed, he says, and want to swap business-friendly market populism for real populism, terrifying the business community.  And also terrifying Lund, who points out that conservative populists have the wrong answers, and that Jeffersonian populism is irrelevant in America and has been for a very long time.

Yes, for a very, very long time.  The theme that ties together the contradictory parts of Brat’s brand of populism is its inherent fallacy: the claim that what matters is not the goal or effect of the particular policy but instead whether it is the federal government that is promulgating the policy. Most people outside the rightwing bubble recognize this as ridiculous, at least when you are specific about the policy. Including so-called working-class whites under the age of about 36 (i.e., milliennials, few of whom listen to rightwing talk radio and what the national Fox News shows); a new, comprehensive poll confirms this. And also confirms that, increasingly, older Rust Belt blue-collar whites, too, recognize this.

Additional post-Cantor-defeat articles illustrate the point. In one, called “A Cantor Effect for Businesses and the G.O.P.,” published in the New York Times on June 14, the writers, Jeremy W. Peters and Shaila Dewan put together a list of similarities between what is increasingly referred to as the Elizabeth Warren wing of the Democratic Party and rightwing economic and civil-liberties populism, and a list of where the two groups diverge (very substantially) on economic issues.  The left’s economic populism isn’t libertarian.  The goals of economic populism–however much they state as their goal bringing economic power back to ordinary people–can’t be achieved through the anti-federal-government mantras of the right.

Which is a fundamental reason why we are heading, at a fast pace, into a progressive political era that is, in most respects, the very antithesis of the legislative agenda thinly disguised as constitutional law pushed so obsessively by five of the nine Supreme Court justices, for whom it will always, always, be 1988.

Only the federal government can regulate the financial industry–not only hedge funds and banks but also credit card companies, the latter two groups which were gouging small businesses as well as consumers to their heart’s content before legislation was enacted during the first two years of the Obama presidency, by a Democratic Congress, circumscribing those practices.

Only the federal government can regulate the student loan industry.  Only the federal government can provide the states with funding to support state university systems sufficiently to render those institutions once again financially accessible to the non-upscale.

Only the federal government can provide healthcare coverage to the elderly, and a secure, if small, pension benefit.

Only the federal government can provide the vast sums for extensive long-term medical and other scientific research. Or did.

On point after point–those, and many others–it is the liberal position, not the Koch position or the Brat position, that has support from vast majorities of the public.  Most people want clean drinking and bathing water and clean air, the dramatic slowing of climate change, safe consumer and food and pharmaceutical products, national parks, public walking trails, endangered species saved, public schools that are competitive with those in other advanced economies.  Most people want safe highways and bridges and modern, efficient infrastructure.  Most people believe that the federal government should play a role in enabling efficient export trade.

Most people don’t want generic clichesgibbergish banalities, and non sequiturs by public officials and candidates–a point made by Matt Bai in another post-Brat-victory analysis and, pre-election, by astute local reporters covering that campaign. So many people are so very tired of that.  But that is necessity in a political system whose real constituents are–as John Roberts said–those who play outsized roles in funding political campaigns.  Out of the mouths of Movement Conservative justices claiming to speak for the Republic’s founders.

Brat, for his part, appears to be about to run a general-election campaign consisting mainly of slogans and non sequiturs.  No surprise, of course; slogans, cliches, non sequiturs are the very essence of the current Republican Party–both factions of the Tea Party/Republican Party.  The Paul Ryan/Koch brothers/Chamber of Commerce faction and also, because of the mutual exclusivity of its premises, the (newly named) David Brat faction. That’s simply the nature of this beast.

But the divorce case originally known as Movement Conservatives v. Movement Conservatives, filed June 10, 2014 in the Richmond, Virginia Court of Public Opinion, is a class action.  I just checked the docket for the case, and it’s now called Movement Conservatives, et al. v. Movement Conservatives.  And already, there have been several amicus briefs filed on behalf of the petitioners.  And the Supreme Court may not decide the outcome of it after all.

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AWESOME opinion today by Roberts in Bond v. United States!

I’ve written extensively here at AB about a two-time Supreme Court case called Bond v. United States, first three years ago when the case was heard the first time, then in the last few months as the case was heard there again.  My most recent post on it, from May 15, was called “The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers.  But about separation of WHICH powers?”  I updated that post on May 17 to include an exchange between reader Mike Hansberry and me in the Comments thread to the post.

In that exchange of comments, I outlined exactly what I hoped the Court would do in the case–and how, and why.  I haven’t yet read the opinion and the concurrences in the judgment* and won’t have a chance to until later today, but SCOTUSblog’s Amy Howe and Tom Goldstein summarized it briefly on the live blog of the Court’s actions this morning, and it appears that the opinion, written by Roberts and joined by Kennedy and the four Dem appointees, is exactly what I said in that post and exchange with Hansberry that I hoped–but did not expect; no one did, best as I could tell–that the Court would do and say.  Here’s their summary from the live blog:

  • Here’s Lyle again. The third and final opinion is Bond v. US. The decision holds that Section 229 does not reach Bond’s simple assault. It is by the Chief Justice.
    by Amy Howe 10:11 AM
    Comment
  • The decision of the Third Circuit is reversed. There are no dissents; there are multiple opinions, however. Scalia has concurred in the judgment, joined by Thomas and in part by Alito. Thomas filed an opinion concurring in the judgment in which Scalia joined and Alito joined in part. Alito filed an opinion concurring in the judgment.
    by Amy Howe 10:12 AM
    Comment
  • The Court seems to avoid a major ruling on the Treaty power by limiting the federal criminal statute under which the defendant was charged.
    by tgoldstein 10:13 AM
    Comment
  • The opinion makes clear that the Court does not interpret the scope of the international weapons treaty at issue. The state laws are sufficient to prosecute an assault like the one in this case. There is no indication in the federal law that Congress intended to abandon its traditional reluctance to define as a federal crime conduct controlled as criminal by the states.
    by Amy Howe 10:13 AM
    Comment
  • The separate opinions by the other conservatives likely argue that the Treaty Power should be limited. But the Chief Justice and Justice Kennedy do not join them.
    by tgoldstein 10:13 AM
    Comment
  • A quote from the Court’s opinion: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard.”
    by Amy Howe 10:14 AM
    Comment
  • Here is the opinion in Bond.
    by kborkoski 10:16 AM

The surprise basis for the ruling–an actual honest consideration of what Congress’s purpose was, and the breadth Congress actually intended, in enacting the statute at issue–is similar to a ruling on May 19, in an opinion by Ginsburg, concerning a procedural statute.  This is a very good, new development for the current Court (although the three dissenters in that case, a Copyright Act case, called Petrella v. Metro-Goldwyn-Mayer, were Roberts, Kennedy and Breyer).

The other big news from the Court this morning–and this is VERY big news–is that the Court agreed to hear two cases filed respectively by the Alabama Democratic Conference and the Alabama Legislative Black Caucus, both which lost in the lower federal courts.  Amy Howe writes:

The questions at issue in the Alabama redistricting cases involve packing black voters into districts to concentrate their voting strength. In 13-1138, there is a subpart in the question that the Court agreed to hear about whether these plaintiffs have standing to bring their claims of racial gerrymandering.

And, a few minutes later:

Here’s Lyle [Denniston, at the Court]. We have one grant (technically noting of probable jurisdiction), in the two Alabama redistricting cases, Alabama Democratic Conference v. Alabama (is limited to question one), Alabama Legislative Black Caucus v. Alabama (question two only).

I probably will write a detailed post on Bond, hopefully tomorrow.  I don’t think I’ll have time today.

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*Corrected to say “concurrences in the judgment” rather than “dissents.”  I was really rushed this morning when I inadvertently misstated  that these were dissents, despite Amy Howe’s clear statement that these were concurrences in the judgment, not dissents–a particularly important distinction in this case, and one that highlights the importance of the grounds the majority did choose versus the grounds that they rejected. 6/2 at 8:42

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The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers. But about separation of WHICH powers?

Update appended. 5/17 at 1:37 p.m.

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I’ve written several times in the last three-plus years about a Supreme Court case called Bond v. U.S. Actually, to be precise, Bond v. U.S. is two Supreme Court cases, although it’s only one lower-court case. This is not unusual, but the case itself is; both the facts and the legal issues are downright weird.

The case first came to the Court in 2010 as a “federalism” (states’ rights!) case, albeit a highly unusual one: Unlike virtually every other criminal-law-related case ni which federalism is at issue, the criminal defendant in this case was prosecuted not in state court but in federal court.  She argued, successfully, to the Supreme Court, on “direct” rather than “collateral” review–a distinction that gives federal criminal defendants an actual shot at Supreme Court review in order to clarify, broaden or narrow criminal or constitutional law; state-court defendants have virtually no chance, and are (very) effectively precluded, by the Supreme Court’s extreme (absurd) interpretation of a federal “jurisdictional” statute, from any such opportunity in the lower federal courts–that she herself had “standing” under the doctrine of federalism to challenge the constitutionality of her federal prosecution. Notwithstanding that she is not a state. But she had been prosecuted under a ridiculously broad reading of a federal anti-terrorism statute, of what should have been a state prosecution.

You have “standing” to sue if there is a direct, actual or imminent injury to you that could be rectified by a favorable court ruling on the issue you want to raise.

Kennedy wrote the opinion, in which he wrote: See, I told you that federalism equals freedom! (Okay, I’m paraphrasing. But you figured that out by yourself.)  Federalism , Kennedy said, is the separation of powers between the federal and the state governments.  Which makes us freer.  Even when it means that state courts (in criminal and civil cases) and prosecutors are free to violate individuals’ constitutional rights. (Okay he didn’t say that latter in that opinion, but he and his colleagues say it regularly in other opinions.)

The Court send the case back to the lower federal appellate court for review of Bond’s substantive claim: Was her prosecution under a ridiculously broad reading of a federal anti-terrorism statute instead of as a run-of-the-mill assault under state criminal law unconstitutional under the doctrine of federalism?  And while her case was in the lower appellate court, she argued that the Chemical Weapons Convention Implementation Act–the statute under which she was prosecuted, and which Congress had enacted under it’s “enumerated” constitutional power to enforce and interpret treaties– was unconstitutional because, well, the part of the treaty that Congress had enacted the statute to enforce, at least as interpreted by Congress in enacting that statute, was an unconstitutional power grab by the executive branch, which had negotiated the treaty.  At least as interpreted by Congress in enacting that statute.

Something like that. I am, I hope it suffices to say, not an expert on international law.  I’m, I just say, way more comfortable discussing the usual federalism (states rights!) controversies than even mentioning, say, treaty law. But I will note that the Constitution’s Article II, Section 2, Clause 2, enumerates that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Bond lost in the lower court on both her grounds, and the Supreme Court agreed to hear the case again.  The case was argued last November, in the same group of argument “sittings” as Town of Greece v. Galloway.

I had assumed until last week, when Town of Greece was released, that Kennedy would write the opinion in Bond–another ode-to-federalism-because-it-means-freedom opinion–and that Roberts would write the opinion in Town of Greece. (They sort of balance things that way.)  But I was wrong about that. Kennedy wrote Town of Greece and Roberts is writing (or has written; the opinion might be issued on Monday) Bond.  And Vanderbilt law prof. Ingrid Wuerth, who is an expert on international law, writes that she expects it to be a blockbuster.

Wuerth says, if I understand her correctly, that she expects that the opinion will substantially rewrite (i.e., limit) the extent of the federal government’s treaty powers–under some theory of the “structure” of the federal government under the original Articles.

I think it will use a different part of the original Constitution, though, than the one that structures the federal government so that Section 2 of the Fifteenth Amendment, and the habeas corpus provision in the Constitution’s Article I and much of the Fourteenth Amendment (as necessary), are largely nullities. This part of the Constitution, I expect, will have been written not by James Madison, or by Oliver Wendell Holmes (to whom credit will be given, nonetheless), but instead by the Koch brothers, who await this ruling.  The purpose of which will have nothing much to do with terrorism–except the environmental kind that Koch Industries, ExxonMobil, and coal-fired power plants perpetuate.

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UPDATE: Reader Mike Hansberry and I exchanged the following comments in the Comments thread to this post:

HANSBERRY:  Your comment puzzles me. If the Court rules that the federal government overreached in prosecuting Ms Bond, that will strengthen Reid v. Covert, which teaches that the Treaty clause does not empower the Pres. and Senate to override Const,. protections, rather than weaken it. In my opinion, the court ought to expand on Reid and say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.

Moreover the Court could simply say that the treat power extends as far as Missouri v Holland, but no further. So there is no need whatever to for this ruling to have an impact on the law as it stands.

ME:  Your comment indicates that you understand perfectly the point of my post, Mike.  Reid v. Covert indeed teaches that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens, in that case, to a U.S. citizen living abroad and tried and convicted, by a military tribunal, of murdering her husband.

I do understand that a major part of the Conservative Legal Movement is to privilege states’ alleged rights over the rights of the federal government and the rights of individuals who aren’t rightwing culture warriors, and attribute this to, as I put it in a new post on this blog, “the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.”

You acknowledge that a ruling in Bond that expands Reid’s “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens–a ruling that expands it to a “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s alleged sovereignty guaranteed to individual states American citizens–would be a clear expansion of Reid’s teaching.  It would, in fact, be not just an expansion but an alteration of the purpose Reid’s teaching, which was to protect individuals, not states, from evisceration of the Constitution’s direct guarantees to individuals.

The question is not whether a treaty can supersede the Constitution’s structure, but instead the right’s claim that the Constitution’s structure is, in essence, the right’s legislative agenda.  That is, the question is: What actually is the Constitution’s structure. In this case–and, really, this case only–a ruling for Bond based on the right’s claims about the Constitution’s structure also would reflect the left’s idea of the Constitution’s structure, but in an entirely different respect.  Carol Bond should win, but because her own individual constitutional rights were violated by a bizarre application of a federal statute.  She should not have to piggyback on some rightwing claim that states, and especially state courts and state prosecutors, are sovereigns whenever they choose to be, including whenever they choose to violate a criminal defendant’s constitutional rights.

THAT would avoid a de facto reversal of what Holmes actually wrote in Missouri v. Holland, as I read that opinion.

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Greece, Greece, I Tell You!

It’s not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore‘s Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers’ views on religion made it into Monday’s decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

— Professor says Supreme Court drew flawed conclusion from book: University of Baltimore expert says Framers deliberately avoided sectarian language, John Fritze, The Baltimore Sun, May 10

No, the title of this post doesn’t refer to the bond-vigilantes/austerity/confidence-fairy crowd, but instead to (yet again) the Supreme Court’s 5-4 decision issued last week in Town of Greece v. Galloway–and to what will be the rallying cry of the pro-Christian-prayer-at-government-meetings crowd, going forward.

Before I swear off posting on AB about that Supreme Court opinion, I want to make one more point, this one about the perniciousness of the Court’s conservative majority’s pretense that in order to understand the original Constitution and the Bill of Rights, or the Reconstruction-era amendments, or anything else about the Constitution, you presume that the framers intended to freeze things the way they were before the Constitution, the Bill of Rights, the Reconstruction-era amendments, were drafted and ratified.

Which raises this question: Why engage in a laborious process of gathering a large number of people to draft a Constitution and shortly afterward draft and ratify amendments, or fight a Civil War and, after you win, draft and ratify amendments reflecting the outcome of the war, if your purpose is to solidify the pre-Constitution, pre-Bill of Rights, pre-Civil War, pre-Reconstruction-era status quo?

The answer is that you don’t, and you don’t pretend that others did.  Unless you’re a 1980s-era Conservative Legal Movement lawyer, judge or justice.*

But it also highlights what is becoming a hallmark of the Roberts Court’s conservative majority: misrepresentations of the very meaning of words, phrases, legal doctrines, and (now, apparently) academics’ writings.

I wrote here recently that we’re “witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.”

The title of Meyereson’s book is Endowed by Our Creator: The Birth of Religious Freedom in America.  As I said here yesterday, town governments are people, my friend.

I do think the Supreme Court has crossed a threshold now.  This crowd observes no recognizable bounds of propriety in achieving the Conservative Movement’s policy goals via the Court’s transparent machinations of history, language, false analogy. Nothing–nothing–is sacred any longer. Except, of course, Christianity.

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[Next up, later this week: Why I believe that Ruth Bader Ginsburg will announce her retirement at the end the Supreme Court term in late June, pending confirmation of her replacement. And the UnElena Kagan who I expect will replace her–and why it would be a very good development, for once.]

 

*This paragraph and the one above were edited for clarity and inclusion of an inadvertently-missing clause after posting, 5/14 at 6:28 p.m.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Now That the Supreme Court Has Found a Right to Vote in the First Amendment, Are State Laws Denying the Vote to Convicted Felons Unconstitutional? You Betcha.

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

— The REAL News From the McCutcheon v. FCC Opinion, me, Apr. 3

Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty.  So my post and its title were intended as facetious.  But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.

I mean, sure, the Fifteenth Amendment says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote.  And, more important, they hadn’t checked with Roger Taney.

In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote.  It does so in the First Amendment, which James Madison participated in drafting!  And which Roger Taney probably approved of.  (Whew!)

While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.

I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon.  She writes:

It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.

But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.

Indeed.

Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year.  What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.

Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court.  I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)

And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?

But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference.  I hope challenges to those state laws begin soon.

Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut.  Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment!  Call it playing the First Amendment card.

Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty.  But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.

As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders.  As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.

I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it.  And, who knows? Maybe I’m right.

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*Cross-posted at The Law of the Jungle.

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SCOTUSblog’s Problem: It’s Not Incorporated [OK, I’m sure it is, but you get the point.]

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle when it expires next month.  We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

We thought it would be useful to write and explain the state of play regarding our credentialing.  SCOTUSblog is not now, and has never been, credentialed by the Supreme Court.  The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has not indicated when that review will conclude.

— An update on our press pass, Tom Goldstein, SCOTUSblog, this morning

I would joke about what happens to popular blogs when they start linking to blog posts by the likes of me on blogs like AB (talk about hoi polloi!)–or about SCOTUSblog’s need to incorporate so that it is an association of press citizens, or something (OK, I did do that in this post’s title)–but really, this isn’t funny.  At all.

Harry Reid, and also the Senate Judiciary Committee, should become involved the Supreme Court’s credentialing policy, which should not be left entirely to the Supreme Court to establish.

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Can the SEC prohibit publicly-traded corporations from making political expenditures (and, eventually, direct campaign contributions) unless the corporation first gets approval from a majority of shareholders?

It’s already become something of a favorite parlor game among liberals, especially among liberal law geeks, to speculate about when the Supreme Court will strike down state and federal statutes that prohibit corporations from making direct campaign contributions to candidates and political parties. In Citizens United, the court killed statutory bars to corporate and union political so-called-independent expenditures, and, in McCutcheon, removed aggregate limits to human beings’ direct contributions to candidates and parties.  But, for now, state and federal laws prohibiting direct corporate and union contributions–some of these laws dating back to the early part of the last century, as I understand it–remain intact.

To the surprise of some (but not me), the Court refused last week to hear a challenge by an incorporated nonprofit political organization.  The most obvious likely reason that they declined is that, as a public relations matter, it simply is too soon after McCutcheon for them to take this step in what everyone by now recognizes as a juggernaut.

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