Supremes uphold common sense

New 1L trend I never experienced before: having your Facebook mini-feed loaded with status updates from your peers griping about a Supreme Court decision

I’m assuming by now all of you have heard about the Supreme Court’s decision yesterday in Citizens United v. Federal Elections Commission, the free speech case involving a group wanting to run an anti-Hillary Clinton documentary on cable TV during the ’08 presidential primary.  If you’ve been on vacation or living under a rock or something similar, you can download a copy of the slip opinion at the Supreme Court’s website.

Despite the risk of being accused of lacking a social life, I’ll confess two things up front: (i) I’ve been reading Supreme Court opinions just for the fun of it since high school, and (ii) I spent most of yesterday and today reading through all 180ish pages of the Citizens United case instead of studying (although it’s really only like 80 pages of text since the Court uses pages margins that would get a law student a failing grade ).

I agreed with the Court’s decision, and thought the dissent was particularly unpersuasive — both points that are probably not surprising given my political leanings. The concurrence from Justice Scalia provided an appreciated historical context, and the concurrence from Justice Thomas provided an interesting perspective on disclosure (even though I’m not convinced of his viewpoint).

But what really blew my mind were the Facebook status updates.

“omg this is the end of democracy in America! MONEY IS NOT SPEECH!” was one of them, with the caps added for dramatic flair. “[N]ow corporations can give unlimited $$ to candidates while the common man is getting screwed” was another. And so on it went almost universally among my 1L colleagues at NCCU Law, UNCCH Law and Duke Law.

So in typical TDot fashion I updated my own status to declare my love for the Supremes and this decision in particular

A flame war ensued. At one point my mother — who’s politically about as polar opposite to me as one can get — decided to join the debate, so I figured I needed to take the discussion here to the blog where she’s less likely to read it and blow up everyone’s mini-feed with her responses

Some gratuitous thoughts on this particular case:

1. McCain-Feingold was shamelessly unconstitutional from Day 1. Anyone who wasn’t alarmed by its prohibition against running ads 30/60 days before an election should surrender their voter registration card immediately. Every single incumbent who voted for it knew they were doing so to insulate themselves from outside criticism, not to “reform the system.” It plainly violated the First Amendment, which the Court was kind enough to lay bare for those who still didn’t know.
2. Money is speech. This really shouldn’t even be debatable because it reeks of common sense, but freedom of expression doesn’t count for much if it’s limited to you standing on a soapbox at the street corner — a point recognized by well over a majority of the country. For an analysis provided by the Supreme Court on the issue, go read the various opinions in Buckley v. Valeo, 424 U.S. 1 (1976).
3. “Corporate” restrictions were arbitrary and predictably unconstitutional. Much consternation and gnashing of teeth has taken place by the left-wing denizens of the blogosphere because the Court upended limitations on corporations directly running their own “express advocacy” ads for/against a given candidate.  Yet media organizations like newspapers (themselves almost all incorporated) have always been excluded from these restrictions solely because of the fact the product they sell is labeled “the press” (e.g. separately protected by the First Amendment). This arbitrary distinction between one corporation type from another made little sense on its own, and even less so when it applied to incorporated associations like labor unions, the Sierra Club, etc — why should I have more rights as an individual than I would if I can successfully convince other individuals to agree with me?
4. The decision’s practical impact will be negligible. Contributing money or buying ads for a political campaign is fundamentally an economic decision — the contributor/purchaser decides the value of potentially influencing the election is worth more than the cash contributed/paid. In other words, a corporation is going to give the exact same dollar amount, regardless of the mechanics, if it decides that’s the money it wants to invest in a race.  We saw this after McCain-Feingold was adopted with the sudden proliferation of 527s and their issue ads.  The Supreme Court’s decision isn’t going to suddenly open a flood of corporate spending, it’s just going to make the spending more direct instead of forcing it to be routed through fake groups set up solely for campaigning purposes. This fundamental reality was highlighted in this piece at Politico.
5. Want less $$ in elections? Abolish contribution limits… Following the campaign-contribution-as-economic-choice point, the fact contribution limits are in place at all artificially increases the amount of money in campaigns. Think of it like a garden hose: as you’re watering your garden, the water (campaign $$) flows out in a straight path. But put your thumb (contribution limits) over the nozzle, and the water splashes in all directions. That’s functionally what happens with the current system — Joe Citizen decides he’s willing to part with $12,000 for a given race, but instead of giving all $12K to his candidate, he gives only $4K to the candidate, then $4K to a 527 supporting his candidate, and then $4K to his candidate’s party.  So now he’s got 3 agents in the political process instead of 1, and all 3 of whom will now be bidding for the same media space… artificially inflating demand, leading to higher prices, leading to the need to raise more money, and on in a spiral it goes.
6. …or shrink the government. I know this will never happen, but the main reason so much money gets spent on political races is because the government has its hands in every cookie jar in the country. When new regulations would cost a given industry tens of millions of dollars, of course the players in that industry will spend a couple million apiece to avoid the regulations — it’s a huge economic incentive for them and their employees. Stop trying to regulate everything into nonexistence and suddenly you take away the incentive for amassing über-huge campaign war chests.

That’s my abridged rant on Citizens United v. FEC. My apologies to those of you who come to law:/dev/null for the normal chronicling of my 1L life instead of a political diatribe — hopefully you’ll still come back tomorrow

Have a good night folks!!

Tags: "Real" world rants..., 1L, The Supremes

Unsolicited commentary on Elections ’09

Here at law:/dev/null I generally try to avoid writing about politics (at least the non-SG variety). The main reason is simple propriety — law school seems to treat all of us about the same, regardless if we’re conservative or liberal or something else altogether. But it’s also partly out of lingering bitterness toward my own past involvement as a political activist-turned-pariah, and the realization that I’m essentially a man without a party.

So earlier this week, during my usual perusal of the law-blog world, I ventured over to (In)Sanity Souffle’s remarks on the Maine referendum that overturned the legislature’s recognition of same-sex marriage. I thought about writing something on the topic, changed my mind, and went back to studying for my soon-to-be dismal performance in Contracts.

But then this morning I went through my usual Sunday ritual watching the political talk shows, and no one seemed to mention the main take-home point I took away from Elections 2009: none of the results were surprising. At all.

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Interlude: A Window into TDot’s Politics
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Let me break from the main entry briefly to give you the 10-second rundown on my political beliefs. The 3-second rundown was mentioned in my tales of IRS woe, and it’s a suitable jumping off point for the ever-so-slightly longer explanation.

I grew up hating politicians of all stripes (which is probably a good starting point for most children), a worldview I borrowed from my grandparents. For most of my childhood I was raised by Nan & Pops, who were/are as starkly different from my parents as a Mac is to a PC. Nan graduated from nursing school a few months before she met Pops, they got married soon thereafter and have been happily together ever since; she’s a housewife who raised 3 kids and now-5 grandkids, while Pops did two tours in the U.S. Navy before spending the rest of his career as an enlisted shipbuilder for the Coast Guard who has since retired. They highlight the generational divide that separates “The Greatest Generation” and their offspring from the Hippies and their offspring — being frugal, eschewing debt, striving for self-reliance, preferring quality time with family over quantity time with a television, etc.

Their politics innately made sense to me. They hate losing so much income to taxes, especially since they successfully raised a family of 5 on modest means; but they also dislike expansive welfare programs, since they were willing to sacrifice their own wants to ensure everyone had a roof over their head, clothes on their backs, and food on the table — and figure everyone else should do the same. They’re Roman Catholics who believe in God, Jesus and so on, and generally have a distaste for the raging atheists trying to stamp out any mention of anything even vaguely religious from public life; but they also support the separation of church and state because personal matters like religion “are none of your damn business” — and consequently not the government’s business either.  Despite their age, they have no problem at all with racial minorities, homosexuals, Jews/Muslims or other groups that older folk seem to dislike for whatever reason; Nan summed it up best when she said “God made all of us the way we are, who am I to question His judgment?”

And boy do they hate politicians. As far as my grandparents were concerned, every single one of them was crooked and out only to line their pockets with our tax dollars. I’m pretty sure both of them stopped voting entirely by the time I got to middle school because “nothing ever changes.” So I not only hated politicians too, but developed an acute interest in all things political.

I decided to actively get involved politically a few years later in high school, after attending a student-oriented luncheon on political theory hosted by then-Delegate Bob McDonnell (yes, the same guy who is now Governor-elect of Virginia). McDonnell exhorted us to try and change the things we didn’t like instead of merely accepting them as the status quo. So I started volunteering for political campaigns, helped to create a Republican club at my high school, and continued to stay involved when I moved to North Carolina to attend N.C. State University.

But that eclectic blend of “free people and free markets” conservatism that’s perfectly acceptable in the military- and business-hub of Virginia Beach VA got me into trouble in Raleigh NC. I eventually became the youngest elected Vice Chairman in the history of the Wake County GOP because I knew how to passionately and intelligently debate people about things like taxes and healthcare — and I got thrown out of that same Wake County GOP a mere 2 years later because I also knew how to passionately and intelligently debate people about things like separation of church and state and gay marriage.

Fast forward to today. My political views haven’t really changed, but I’ve contributed a grand total of $0.00 to the Republican Party at the local, state or national level since my banishment. I bailed on my days as a political activist to become a lobbyist and later a policy analyst for a state legislator. And now I generally don’t play in the partisan political arena at all, preferring instead to promote higher education issues through my role as President of the UNC Association of Student Governments (albeit as the first Republican to hold the Presidency in as long as anyone can remember).

I’m still generally anti-government, anti-tax, pro-gun, and pro-military. I used to oppose the death penalty, but after working for the court system (and seeing some of the exhibits in our evidence rooms) I came to the conclusion that some people just need to be executed. I’m not a fan of abortion but don’t care enough either way to do much about it. Having grown up with little material wealth, I don’t have much sympathy for the rich — but having also been homeless shortly after dropping out of N.C. State and enduring all kinds of hell to get where I am now, I have even less sympathy for the poor. I believe in God/Jesus/etc, but stand by Nan’s old comment that religion is “none of your damn business.”  Who’s asleep in the bed next to me falls into that same NoYDB category, coincidentally one of several reasons I’m fine with gay marriage. I voted for GWB twice, and would happily do it again. I voted for McCain, but only because Clinton lost the primary.

I could go on about dozens of other topics, ranging from W’s foreign policy (love it) to net neutrality (hate it) and anything in between. But this section has probably already taken longer than 10 seconds, so I should probably move on

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Elections 2009: Why the Surprise?
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So back to last week’s elections. The national media focused on 4 stories: Republicans winning the governorships in Virginia and New Jersey, a Democrat winning a Safe Republican seat in Congress in the 23rd NY Congressional District, and Maine voters overturning the legislature’s recognition of gay marriage.

==> Bob McDonnell wins in Virginia: this didn’t really surprise anyone, if only because the polls showed a landslide for weeks. Pundits were quick to blame his opponent for the loss, but remember this is the exact same guy who ran against McDonnell for Attorney General — and who lost that particular race by only a couple hundred votes instead of the out-and-out thrashing he got last week. The simple fact is McDonnell is not only a damn good candidate who was going to win this race regardless of who ran against him, but voters also tend to prefer nuts-and-bolts / bread-and-butter / law-and-order candidates in times of uncertainty. That’s exactly the campaign that McDonnell ran.

==> Chris Christie wins in New Jersey: this one seemed to shock people, though why I don’t know. See the previous entry about the type of candidates voters gravitate toward during uncertain times. Where McDonnell was an Attorney General, Christie was a U.S. Attorney with an impeccable record of jailing corrupt politicians (which, at least as far as NJ goes, seems to be the only kind they have). Christie also focused intensely on the poor economic conditions in the state, and naturally had the more believable argument with voters since his opponent was in office when those poor economic conditions came about. No matter how big the Democratic registration advantage may have been, everyone should have seen this victory coming.

==> Bill Owens wins in NY-23: again, another obvious result. First there’s the fact his main opponent Doug Hoffman was a 3rd party candidate — love or hate our 2-party system, with few exceptions 3rd party candidates simply don’t win elections. Period. Add on top of it the factional divide among the Republicans between the liberal GOP, the moderate GOP, and the conservative GOP. For all the post-election talk of “there’s no civil war in the party,” I can tell you from personal experience it’s total BS. My eviction from the WakeGOP centered exclusively on the fact I didn’t hate blacks or gays and refused to quote Bible verses in everyday conversation, and I’ve helped put quite a few Democrats into office as a result. NY-23 is just a continuation of that same phenomenon. Owens win was a foregone conclusion… as will be his loss next year if there’s only one GOP candidate.

==> Homophobes win in Maine: bringing things full circle to that piece over at (In)Sanity Souffle, I have no doubt the sadness and disappointment are real but I’m confounded by it just the same, at least insofar as they’re rooted in the result being unexpected. Let’s not forget it wasn’t terribly long ago that mixed-race marriages were illegal in my home state of Virginia. Had that been a legislative enactment instead of a judicial decision by the Supreme Court (see Loving v. Virginia, 388 U.S. 1) would a referendum overturning it fail today? I’d like to think so, but honestly I’m not sure. People tend to give pollsters answers that would be considered “politically correct” because they don’t want to be perceived as bigots. Once someone steps into a voting booth, though, they become quasi-anonymous and can state their opinion without anyone ever finding out. And anything non-”conventional” tends to get voted against. In general I don’t like the idea of a referendum process overturning legislative enactments — the politicians chosen on Election Day should be the referendum — but the minute that referendum was allowed, supporters of gay marriage surely must have known the people opposing them were going to carry the day. I wouldn’t be surprised if it takes another Supreme Court ruling similar to Loving for anything to permanently change.

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Anyhow, that’s my unsolicited synopsis on the 2009 elections — like or dislike the results, they shouldn’t have surprised anyone.

And in exchange for y’all indulging me, I promise I’ll refrain from any further political commentary for the near-term future

Have a good night y’all!

Tags: "Real" world rants..., About TDot, Nan & Pops, UNCASG