GOP Primary Megathread!

[The Minsky Moment]

Joan, just to let you know, I'm not ignoring you.

Since I have to keep it kinda brief, I'll just point this out--you keep saying the facial challenge was not before them, but I believe it was.  (I grant this is something of a because-they-say-so argument, but CU did raise it below, iirc they abandoned it during appeal, but my understanding is that this was enough for it to be properly raised even if done by the USSC itself.  You can argue the propriety of a court doing so in this specific instance, but in general I like courts to not be strictly beholden to the claims, or the forms of the claims, before them.)

The SCt can be real sticklers about not addressing arguments not properly raised in questions presented or waived before argument.  If this was an appeal of a 9th circuit AEDPA decision, the same Justices in the majority would never consider such an argument.  But here they bend over backwards to do it - and in a context that prevented the US government from effectively defending a Congressional statute no less.  The whiff of hypocrisy is in the air.

[derspiess]

Derspiess's troll: SUCCESSFUL 

It's very easy for notorious Republicans to troll.  How can you ever be sure that something very stupid they're saying is a troll?

LOL Can I be: NOTORIOUS G.O.P.?

[Darth Wagtaros]

No.  Maybe I'll go back to being Notorious WAG though.

[fhdz]

It's very easy for notorious Republicans to troll.  How can you ever be sure that something very stupid they're saying is a troll?

Yes, they could be direct Gingrich or Santorum quotes!

[Jacob]

Derspiess's troll: SUCCESSFUL 

That's a pretty low bar for a successful troll: one post that goes "yeah, that's really clever."

Languish trolling standards: dying.

[garbon]

NB: I also naturally infer from derspiess' post that DERSPIESS HAS ERECTILE DYSFUNCTION.

Not really an issue with the wonders of modern medicine.

[Eddie Teach]

That's a pretty low bar for a successful troll: one post that goes "yeah, that's really clever."

Languish trolling standards: dying.

Guller, Ide and Fahdiz all directly responded, though in Fahdiz's case he may have been counter-trolling.

Besides, it was the tone of the responses as much as the content that suggests there were bites.

[fhdz]

Guller, Ide and Fahdiz all responded, though in Fahdiz's case he may have been counter-trolling.

[Jacob]

Guller, Ide and Fahdiz all directly responded, though in Fahdiz's case he may have been counter-trolling.

Besides, it was the tone of the responses as much as the content that suggests there were bites.

A sarcastic "yeah, that's a great argument", a smilie and a "stay classy" counts as bites for trolling?

Like I said, that's a pretty low bar.

[Eddie Teach]

Insisting a troll was weak and arguing about it is kind of a bite too.   

Anyway, I wasn't saying it was Hall of Fame material or anything, just that it worked. Which is pretty funny considering how little effort he put into it.

[derspiess]

FWIW, I don't have erectile dysfunction.  Maybe in about 20 years, but not yet.  There's so little stigma attached to it these days, I would probably admit if I did.

I do, however, quite enjoy "punishing sluts"

For anyone keeping score, I've mentioned "whore pills" 3 times on Languish and got fun responses each time.

[Ed Anger]

I like to punish sluts too. That is why I own a leg spreader bar and a paddle.

[Ideologue]

Joan, just to let you know, I'm not ignoring you.

Since I have to keep it kinda brief, I'll just point this out--you keep saying the facial challenge was not before them, but I believe it was.  (I grant this is something of a because-they-say-so argument, but CU did raise it below, iirc they abandoned it during appeal, but my understanding is that this was enough for it to be properly raised even if done by the USSC itself.  You can argue the propriety of a court doing so in this specific instance, but in general I like courts to not be strictly beholden to the claims, or the forms of the claims, before them.)

The SCt can be real sticklers about not addressing arguments not properly raised in questions presented or waived before argument.  If this was an appeal of a 9th circuit AEDPA decision, the same Justices in the majority would never consider such an argument.  But here they bend over backwards to do it - and in a context that prevented the US government from effectively defending a Congressional statute no less.  The whiff of hypocrisy is in the air.

I dunno.  See Lebron, cited by the CU Court--it was another First Amendment case, turning upon whether 1)Amtrak was a government actor and 2)whether Lebron properly preserved his claim.  "Our traditional rule is that "

• nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below." Yee v. Escondido, 503 U. S. ___, ___ (1992) (slip op., at 13); see also Dewey v. Des Moines, 173 U.S. 193, 198 (1899). Lebron's contention that Amtrak is part of the Government is in our view not a new claim within the meaning of that rule, but a new argument to support what has been his consistent claim: that Amtrak did not accord him the rights it was obliged to provide by the First Amendment.  In fact, even if this were a claim not raised by petitioner below, we would ordinarily feel free to address it, since it was addressed by the court below. Our practice "permit review of an issue not pressed so long as it has been passed upon . . . ." United States v. Williams, 504 U. S. ___, ___ (1992) (slip op., at 4). See Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099, n. 8 (1991); Stevens v. Department of Treasury, 500 U.S. 1, 8 (1991). "  (Lebron v. National R.R. Passenger Corp., something U.S. something, citations totally left in.)
  
  Fwiw, the advertisement at issue in Lebron was a left-wing billboard.  So there's that.  I'm just saying there's precedent for a more relaxed attitude to preservation in First Amendment cases, because of the importance etc. etc.  It'd have been nice if they explicitly said this (maybe they did, but even the Lebron cite is given without much explanation--and yeah, I can see why you might think they're pulling it out of their ass, but while Kennedy definitely needed to more thoroughly support it, it's a supportable position.).
  
  Here's an actual question, because I'm unsure: If the gov't lawyers didn't know this, and didn't brief an issue that could be resurrected, isn't that their fault?

[PDH]

Every time I read "whore pills" I want to know where I can buy some of those to slip into drinks...

[Ideologue]

Then what you want is an effective prior restraint?  To force people to get declaratory relief to show a movie?  Because that's what the CU Court feared, and is basically what CU was attempting--and it's both administratively unwelcome and constitutionally improper to force speakers, under threat of enforcement action and even criminal sanctions, to seek governmental approval prior to dissemination. 

That's back to the parade of horribles.  In the 8 years BCRA existed, thousands of movies were made and distributed without anyone needing to get DJs, and without anyone even thinking this was a problem, even for movies with very strong political themes.  Nor was there any risk of prior restraint - effective or otherwise - and the consequence of a violation was the risk of getting drawn into FEC admin proceedings and maybe having to pay a fine (since criminal sanctions can be avoided with a conciliation agreement).

That's the problem with that part of the BCRA.  By the same rationale it could be applied to media corporations--how does a court or law define a "media corporation" anyway when the entire point of the restriction is that the corporation is creating a communication, an expressive work?  At what "level" of "media involvement" does it stop being a PAC and start being a film studio or something?  At what point does a film studio stop being a film studio?  The point is, it's a nonsensical categorization, along the lines of dividing individuals into artist and consumer classes and then making laws which discriminate between them.

My favorite scenario is to point at Avatar, and to suggest imagining it came out in October 2004.  By simply changing the date of release, but changing nothing in the film itself, Cameron's indulgent opus becomes a five hundred billion dollar electioneering communication paid for by a corporation that expressly advocates against George W. Bush and reached and was intended to reach far more than 50,000 individuals.  It's tremendously unlikely that distributor Fox or Cameron's production company would face an FEC enforcement action, even without the media exemption.  But take that media exemption away, or chip away at it, and I think you may start to have real problems, including a chilling effect at the boundary.

Yes, it's a parade of horribles, a slippery-slope argument.  But such arguments have appeal, especially when concerning fundamental rights, because at the boundary enforcement becomes arbitrary, political interests may be served instead of public ones, and often the boundary keeps creeping closer to things we actually care about.

Also, this argument is not my sole basis for support of CU.

That's an argument about whether they should have been able to get more expedited relief, not whether they are correct on the merits.  On this theory, no regulation of electioneering activity - including fraud - would be permissible.

C'mon, who's parading horribles now?  No one is saying that fraud can't be punished.

1.  They could have ruled for the FEC.  They could have ruled that given the unrebutted Congressional findings concerning the dangers of corruption and the ability of covered corps to make expenditures through PACs, that the compelling state interest in clean elections overcame whatever speech interests adhere to corporate communications expressly advocating election or defeat of specific candidates.    (The Court of course dodged the PACs "time place and manner" limitation by taking the strong position on corporate personhood and making formalistic distinctions between the corporate entity and their PAC)

Well, that distinction is not by default so formalistic.  Specifically, in CU corporate donations were not the major source of funding for Hillary: Do You Want to Be Like Garbon?.  This is the de minimis exception suggested by the government, which is about as far as you could go without stepping on little people.  But you're still stepping on big people, which is not OK.

2.  They could have ruled to the extent that otherwise covered communications contain material, legitimate communicative purposes aside from the express advocacy of election outcomes (or where such advocacy was not the principal purpose) that the prohibition creates more serious First Amendment problems.  That would justify an as applied challenge or narrowing construction by not a facial strikedown.

Ala Wisconsin Right to Life?

The difference is that Bellotti is talking about speech not the speaker.  Belloti's point is that the identity of the speaker doesn't matter - thus the mere fact that a corporation is the speaker doesn't make the speech unprotected.  The context is that Belloti begins with the assumed premise that if the question proceeds from the inherent right of corporations as artificial persons, that the corporation would and must lose, because it has not such inherent rights.  Belloti deals with that by saying - this isn't about the rights of corporations to speak, it is about the power (or lack thereof) of Congress to regulate speech, no matter who or what utters it.

And assuming that this is a difference that makes a difference, I still think that's exactly what CU does.  The BCRA discriminated against corps and unions.

But Belotti doesn't get Kennedy where he needs to go because it only recognizes "source neturality" with respect to the "worth" of the speech and its informative value.  There are other considerations that go into First Amendment analysis - including the quality of the state interest in regulation and the availability and usefulness of alternative avenues of expression.  With respect to both of these, the corporate identity of a speaker may clearly be relevant.  Kennedy elides all this by rewriting Bellotti to be a case about the a corporation's right to speak, which is exactly the question the Bellotti court says it ins't addressing.

I think this is where we fundamentally differ.  As I said, I have another basis for agreeing with the opinion.  I do not, nor did the CU Court, recognize a compelling state interest in regulating political speech as the BCRA did.  The BCRA was not only bad because it casts a shadow over other speech, it was bad because it prevents speech, period, based on the identity of the speaker.  Thus bye-bye Austin, and, if needs must, the warping of Belloti to that hack Kennedy's whim.

How did we get on this again, anyway?  Tax policy, right?  You should pay more taxes, Joan, but I will defend to the death your right to complain about them, through PAC if necessary.