This is the single-greatest blog post and comment thread since Jim Henley wrote the greatest blog post of all time. Via Patrick at Popehat.

It’s clear that opinions on Citizens United are pretty hardened, but if you don’t agree with my take, perhaps you’ll listen to Glenn Greenwald, whose post on the subject is definitive.

Yesterday, the Supreme Court struck down its own precedent in order to overturn campaign finance laws prohibiting corporations and unions from making “independent expenditures” relating to political campaigns within the weeks leading up to an election.  The opinion is certainly significant.  For those of us of a more libertarian mindset, it is a huge blow for free speech.  For those of a liberal mindset, it is a huge blow for corporate influence over our electoral process. 

Needless to say, I find the majority opinion written by Justice Kennedy persuasive.  Surprisingly to me, I found Justice Stevens’ dissent unusually weak and full of obvious holes, at least outside of his arguments for stare decisis.  There are a couple of key issues in the case that are particularly worth discussing and that will also, hopefully, alleviate the fears that somehow this decision will mean more corporate dominance of our political process. 

At the outset, let us be very clear – the existence of a free speech issue here is very clear.  The laws prohibited virtually any kind of advocacy for a candidate by a corporation or union in the days and weeks leading up to an election.  Corporations and unions are nothing if they are not associations of actual, real persons.  Moreover, included in the concept of a “corporation” for these purposes are non-profit corporations that expressly exist as political advocacy groups.  However, certain corporations are expressly excluded from the law, to wit: media corporations. 

The majority argues, correctly in my view, that the distinction between media corporations and other corporations is arbitrary, and that indeed, this distinction proves that corporations in general cannot have meaningfully diminished First Amendment rights.  Professor Volokh beautifully and succinctly explains this argument here.  So, either corporations have something approaching full First Amendment rights, or the government has the authority to severely restrict the First Amendment rights of media corporations.

This brings me to the first example of why Citizens United decreases, rather than increases, the relative influence of large corporations over our elections.  This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2.  Specifically, the result of the decision is that the longstanding monopoly of media corporations on the ability to widely disseminate editorial opinions on elections is at an end.  Except for the fact that we may find ourselves annoyed by the even-higher presence of campaign ads on our TV come election season, this is an altogether good thing for democracy. 

The second, and to my mind more important, result of this decision will be to make it easier for smaller businesses and non-profits to have a voice in the system.   In his dissent, Justice Stevens goes to great lengths to explain how the ban on pre-election political ads by corporations isn’t really a ban because corporations and unions can just act via a Political Action Committee (PAC).  He acknowledges that acting through a PAC is a burden on corporate speech, but claims that it is a burden that can easily borne by a sophisticated modern corporation (whether for-profit or non-profit).  Ok, fair enough.  The trouble is that he assumes that all corporations are sufficiently sophisticated and large to be able to set up a PAC, with all of the attendant regulatory and reporting requirements that entails.  Not so.  Indeed, as the majority points out, there are millions of corporations in the United States, but less than 2000 corporate PACs.  It doesn’t take a rocket scientist to figure out the types of corporations represented by those PACs, nor does it take a genius to figure out the types of corporations that are not represented by those PACs. 

In short, the existing system’s response to free speech concerns (PACs) acts only to ensure that large corporations are already able to have near-unfettered participation in the electoral process, as long as they first overcome some regulatory hurdles that are relatively minor for them but are significant for smaller, less sophisticated enterprises.  Smaller corporations are effectively shut out of the system, thereby reinforcing the oligopoly of influence over elections and influence markets enjoyed by their larger, more sophisticated brethren.  This changes that.  Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place.  In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).

My expectation is that although this decision will certainly increase the voice of “corporations” writ large in our elections, it will do so by causing an increase in the number of corporate voices (again, remembering that this includes non-profit advocacy corporations) involved in the process beyond the usual suspects, and thus decreasing the relative voice of any one corporation or group of corporations.

ADDENDUM: Cf., Matt Welch:

When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the “voices of everyday Americans” that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or “Wall Street banks, health insurance companies and the other powerful interests,” in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now).

ADDENDUM II: Ilya Somin goes into a good amount of depth to explain why the inequality argument for prohibiting corporate speech would simply exacerbate the relative effects of other existing, and arguably more severe, forms of inequality.  In a nutshell, eliminating corporate speech magnifies the speech of famous athletes.  Somin also addresses the argument that “corporations are not people” here.

The one single refrain we’ve heard (especially from Broderists) over the last few years when it comes to those who claim nothing should be done about Bush-era “enhanced interrogation techniques” is that prosecutions or a tribunal would prove to be too divisive and distracting for our country.  At root, this argument only makes sense if there’s some question as to whether “enhanced interrogation techniques” constitute torture – there’s no dispute that the “techniques” were used, and with the possible exception of President Bush himself, there’s not much dispute as to who was involved in authorizing the use of those techniques.  If everyone agrees that those techniques were illegal and torture, then what could possibly be divisive about prosecuting someone who acknowledges committing an illegal, unconstitutional, and unconscionable act?

In other words, the “too divisive” argument against prosecution hinges entirely on the notion that it would be “too divisive or distracting” for us to conduct trials or tribunals aimed at determining, once and for all, whether “enhanced interrogation techniques” are torture.  To be sure, this argument is pretty weak to begin with.  But it also assumes that a failure to prosecute will not be divisive or distracting, that if we ignore the issue, it will just go away.

It has now been almost four and a half years since the legality and morality of “enhanced interrogation techniques,” and specifically waterboarding first entered the public eye.  Yet we’re still having the debate.  Four and a half years of debating one simple question that could be answered in a short trial.  Whatever the results of such a trial, how long would it take for everyone to get on with their lives and for our public discourse to begin to focus on other issues?  In our 24-hour news cycle, ADD culture?  A few months?  A few weeks?  Even a few days?  But certainly not four and a half years. 

Would such prosecutions really tear the fabric of our country asunder so desperately as to endanger the Republic or at least cause even more long-term problems (which is to say almost none) than impeaching a sitting President for lying in a private capacity lawsuit about sex did?  I rather doubt it.  But certainly, ripping the band-aid off at once is generally preferable to slowly peeling it off, which is what we’ve been doing, and continue to do. 

These techniques, allegedly, are no longer in use.  The only potential long-lasting national impact from a finding that the techniques are torture is that there will be zero possibility that they will be brought back, as opposed to a minimal possibility that they will.   But without any finding, we just seem to keep revisiting the question, continuing to use it as a wedge, and failing to advance our public discourse at all.  Prosecute them and be done with it, whatever the results.  The country will survive.  No, really, it will.

Hopefully I’ll have more tonight or tomorrow on the Supreme Court’s decision in Citizens United.  But I am amazed at the hyperventilating response from McCain-Feingold backers.  Is there any evidence that McCain-Feingold succeeded in making our politics less corrupt in any way, shape, or form over the last decade, or for that matter over the last 30 years?  Any evidence at all?  Methinks the answer is a resounding “NO!,” but I’m open to persuasion.

IOZ shreds Amanda Marcotte.

I understand what Jamelle is trying to say in response to E.D.  I do.  But I think Jamelle is fundamentally misreading the GOP and the nature of what can make something meaningfully ”bi-partisan” (much as that word sends chills down my spine).

Let me start by saying that I mostly agree with Jamelle when he says that”

There is almost nothing in recent political history to suggest that the Republican Party is anything but hostile to health care reform.  And if not hostile, then indifferent.  Republicans had nearly four years of uninterrupted dominance with which to tackle health care reform, and neither President Bush nor congressional Republicans proposed anything. 

I think “hostile” is too strong, but indifferent is probably about right.  Certainly, health care reform is a very low priority for the GOP and to the extent it’s a priority at all, it’s only because it’s so front and center an issue for Dems and liberals. 

Saying something is almost universally a low priority for Republican politicians, however, is not the same as saying that all Republican politicians will be reflexively opposed to any health care reform at all.  It has, for instance, become cliche amongst liberals to say that the McCain health care proposal was worthless and a joke.  Yet the primary difference between that proposal and Wyden-Bennett, which is popular with economists and many movement liberals, solely has to do with the amount of regulation of the individual market – not exactly an irreconcilable chasm. 

My key disagreement with Jamelle comes from this paragraph, however:

Last year, Democrats offered Republicans the chance to make their mark on health care reform.  Yes, it would happen within a liberal framework, but Democrats were more than willing to compromise and scale down if it meant GOP support.  Republicans were repeatedly offered the opportunity to alter the bill to their liking; if Republicans wanted market-friendly reforms, they could have gotten them.  If Republicans wanted something modest and limited, Democrats probably would have delivered.  But they didn’t.  Despite that, Democrats produced and passed a bill that is moderate and bipartisan in everything but name.   

(My emphasis).

The disagreement I have here is that it makes the assumption that altering the scope of a major proposal rather than adjusting its framework is an inherently worthwile effort at bi-partisanship.  In some cases, that may well be true, to be sure.  But it’s not true when the principal objection from the opposing party’s base is the framework itself, which is precisely what the objection has been here almost from Day One.  [Read more →]

The Dark Prince himself responds directly to Pat Robertson’s claim that the Haiti earthquake was punishment for a deal with the Devil.  Via Popehat.

I have seen a lot of pretty good analysis of last night’s elections coming from the “fringes” on both sides, but especially from the far Left.  I have also seen a lot of crappy analysis coming from the establishment types on both sides.  But this piece by Lanny Davis takes the cake.  Essentially, Davis blames hard-core progressives for the loss – not because they failed to support Coakley, but because they’re somehow responsible for the elements of health care reform that have most angered people against health care reform in recent weeks – special interest giveaways to unions and Nebraska, the public option, and individual mandates.  Simultaneously, he seems to attack hard-core progressives for threatening to not support any bill without these provisions. 

Seriously – what world has Davis been living in?  Because so far as I’m aware, those giveaways to special interests were vehemently opposed by progressives and were a big part of the reason why they, along with a lot of independents, started turning against the bill.  So far as I’m aware, the same die-hard progressives Davis is attacking (ie, the Jane Hamsher/Firedoglake set) have also been strongly opposed to the individual mandate.  And, so far as I’m aware, the public option isn’t even included in the Senate bill that was the most proximate impetus for the voter anger for which Davis is blaming die-hard progressives.  Indeed, provisions like the individual mandate, and the various special interest giveaways seem to find their core group of advocates precisely amongst the group of New Democrats that Davis claims progressives should be following.

I think Big Tent Democrat pretty perfectly sums up why, in the aftermath of Scott Brown’s shocker last night, the Democrats will not be able to pass health care reform by resorting to “Plan B”: pushing the Senate-passed bill through the House.

Transplanted Lawyer argues that in the long run a Scott Brown victory today could hurt Republicans because it will force the Dems to alter what would have likely been a losing campaign strategy for the November Congressional elections.

Others here may well disagree, but I would like to associate myself with every word of James Joyner’s response to Andrew Sullivan’s accusation that a Scott Brown win will signal “a nihilist moment, built from a nihilist strategy in order to regain power.”  The only thing I’d add [Read more →]