Crocodile Tears and Wisconsin Right to Life
People have been after me: When are you going to write something on Wisconsin Right to Life? Well, I'm a busy guy, and I figure most things are already being said in terms of analyzing the decision and predicting its effects.
But I suppose the time has come to add at least a few thoughts (and I apologize in advance for few links and less context than usual - just no time today):
1. Souter's dissent is a stinker. Even many who agree with the holding to seem to think so, from what I can tell. Never known as the Court's intellectual giant, and with little to build on but the equally ad Stevens/O'Connor opinion in McConnell v. FEC, Souter's argument consists of little more than outrage and conclusory statements. Like a Fred Wertheimer press release, Souter argues through adjective, talking, for example, about "fake issue ads," and describing the plaintiff as an organization that has "chosen to serve as a funnel for hundreds of thousands of dollars from other corporations" and demeaning other groups that, "refuse to take advantage of the PAC structure but insist on acting as conduits from the campaign war chests of business corporations." (Refuse to take advantage of the PAC structure? Who knew the government could be so generous? Does this mean the state is not required to allow any speech, so you'd better take advantage of what you are given?)
He refers to "undeniable facts" that testify to the "equally undeniable value" favoring regulation. Of course, many people, including many serious academic studies, deny those facts, and to say that regulation supports an "undeniable value" - which, some 150 words later, he finally identifies as "democratic integrity" - is meaningless. For the First Amendment, and the free speech it aims to protect, is also an "undeniable value," and the fact that campaign finance regulation infringes on it is also an "undeniable fact." Except to Souter and his three colleagues. To them, the documented threats to integrity are "obvious to any voter" (except, apparently, the millions who have opposed McCain-Feingold, joined groups that litigated against it, and voted for politicians who opposed it). (slip opinion at 19-20.) At another point he tells us that "any voter who paid attention would have known that Democratic Senator Feingold supported filibusters..." (at 22. emphasis added). This shows a remarkable ignorance of studies about voter knowledge, which shows that most voters can't even name their representatives. And it also raises an interesting question - if every voter knew that, why would anyone run these ads, regardless of their purpose? Thus, Souter concludes, it is "beyond all reasonable debate" that the ads are subject to regulation. (p. 23).
This is not legal analysis. This is a scream: WE WILL NOT DEBATE. WE WILL NOT DISCUSS. WE WILL NOT ENGAGE. WE ARE INTRANSIGENT. THERE IS NO OTHER POSSIBLE ANSWER!
2. Some parts of the Roberts opinion I liked:
a. His deft dissection of the fraudulent "Buying Time" studies (p. 12-13).
b. The fact that he actually quotes the First Amendment - when was that last done in a Supreme Court decision on campaign finance?
c. "We disagree with the dissent's view that corporations can still speak by changing what they say to avoid mentioning candidates. This argument is akin to telling Cohen that he cannot wear his jacket because he is free to wear one that says, 'I disagree with the draft;' or telling 44 Liquormart that it can advertise so long as it avoids mentioning prices." (slip op. at 23-24, fn. 9). He is referring here to Cohen v. California, upholding the right to wear a "F*** the Draft" jacket, and 44 Liquormart Inc. v. Rhode Island, upholding the right to advertise liquor prices.
d. Skewering the intervenors (Sen. McCain and pals) for their "heads I win, tails you lose" argument. (p. 18, noting their argument that the less an ad actually pertained to an election, the more likely it was to influence voters); and
e. "Enough is enough." (p. 25)
3. Crocodile tears about 5-4 votes. All the academics, from Erwin Chemerinksy to Cass Sunstein, are out bemoaning all the 5-4 decisions this term. "Why," they whine, "Roberts said he wanted to build consensus." Of course, building consensus takes more than one. As noted above, in this case for example, the dissent is little more than petulance and a determination that no compromise is possible. None of these folks whined when McConnell v. FEC went 5-4 in their favor, but then, Justice Stevens never said he cared about gaining consensus - which may explain why this decision was also 5-4! The definition of consensus seems to be this: when Roberts, Alito, Kennedy, Scalia, and Thomas sacrifice their beliefs to agree with the other four. In this case, Roberts and Alito tried to take a narrow view, much to the chagrin of Scalia. Surely Breyer or Souter or someone could have joined the Chief, and tried to write an opinion a bit more to their liking. They chose not to. If Roberts isn't even going to win votes by trying to keep his ruling narrow, he may as well go all out. In the field of campaign finance, at least, that would be a good thing.
4. Crocodile tears about the abuse of precedent. All the folks who sat idly by while the McConnell decision abused precedent are now up in arms. Souter's decision is as good a place as any to go for an example of how they are still willing to abuse precedent, e.g.: "campaign finance reform has... consistently focused on the pervasive distortion of electoral institutions by concentrated wealth..." (slip opinion at 20. Hey, Souter - read Buckley v. Valeo. Hypocrits. It's that simple.
5. Well, we have to go back to the Souter opinion for a bit. You've got to love footnote 18, in which he disses the Pew Trusts/Brennan Center's baby, the Buying Time studies. Why, according to Souter, there is "not a shred of evidence" that the Court relied on them. (slip opinon at 26, n. 18). Guess the folks and Pew and Brennan just lost their bragging rights.
Well, enough. There is much more to do.
But I suppose the time has come to add at least a few thoughts (and I apologize in advance for few links and less context than usual - just no time today):
1. Souter's dissent is a stinker. Even many who agree with the holding to seem to think so, from what I can tell. Never known as the Court's intellectual giant, and with little to build on but the equally ad Stevens/O'Connor opinion in McConnell v. FEC, Souter's argument consists of little more than outrage and conclusory statements. Like a Fred Wertheimer press release, Souter argues through adjective, talking, for example, about "fake issue ads," and describing the plaintiff as an organization that has "chosen to serve as a funnel for hundreds of thousands of dollars from other corporations" and demeaning other groups that, "refuse to take advantage of the PAC structure but insist on acting as conduits from the campaign war chests of business corporations." (Refuse to take advantage of the PAC structure? Who knew the government could be so generous? Does this mean the state is not required to allow any speech, so you'd better take advantage of what you are given?)
He refers to "undeniable facts" that testify to the "equally undeniable value" favoring regulation. Of course, many people, including many serious academic studies, deny those facts, and to say that regulation supports an "undeniable value" - which, some 150 words later, he finally identifies as "democratic integrity" - is meaningless. For the First Amendment, and the free speech it aims to protect, is also an "undeniable value," and the fact that campaign finance regulation infringes on it is also an "undeniable fact." Except to Souter and his three colleagues. To them, the documented threats to integrity are "obvious to any voter" (except, apparently, the millions who have opposed McCain-Feingold, joined groups that litigated against it, and voted for politicians who opposed it). (slip opinion at 19-20.) At another point he tells us that "any voter who paid attention would have known that Democratic Senator Feingold supported filibusters..." (at 22. emphasis added). This shows a remarkable ignorance of studies about voter knowledge, which shows that most voters can't even name their representatives. And it also raises an interesting question - if every voter knew that, why would anyone run these ads, regardless of their purpose? Thus, Souter concludes, it is "beyond all reasonable debate" that the ads are subject to regulation. (p. 23).
This is not legal analysis. This is a scream: WE WILL NOT DEBATE. WE WILL NOT DISCUSS. WE WILL NOT ENGAGE. WE ARE INTRANSIGENT. THERE IS NO OTHER POSSIBLE ANSWER!
2. Some parts of the Roberts opinion I liked:
a. His deft dissection of the fraudulent "Buying Time" studies (p. 12-13).
b. The fact that he actually quotes the First Amendment - when was that last done in a Supreme Court decision on campaign finance?
c. "We disagree with the dissent's view that corporations can still speak by changing what they say to avoid mentioning candidates. This argument is akin to telling Cohen that he cannot wear his jacket because he is free to wear one that says, 'I disagree with the draft;' or telling 44 Liquormart that it can advertise so long as it avoids mentioning prices." (slip op. at 23-24, fn. 9). He is referring here to Cohen v. California, upholding the right to wear a "F*** the Draft" jacket, and 44 Liquormart Inc. v. Rhode Island, upholding the right to advertise liquor prices.
d. Skewering the intervenors (Sen. McCain and pals) for their "heads I win, tails you lose" argument. (p. 18, noting their argument that the less an ad actually pertained to an election, the more likely it was to influence voters); and
e. "Enough is enough." (p. 25)
3. Crocodile tears about 5-4 votes. All the academics, from Erwin Chemerinksy to Cass Sunstein, are out bemoaning all the 5-4 decisions this term. "Why," they whine, "Roberts said he wanted to build consensus." Of course, building consensus takes more than one. As noted above, in this case for example, the dissent is little more than petulance and a determination that no compromise is possible. None of these folks whined when McConnell v. FEC went 5-4 in their favor, but then, Justice Stevens never said he cared about gaining consensus - which may explain why this decision was also 5-4! The definition of consensus seems to be this: when Roberts, Alito, Kennedy, Scalia, and Thomas sacrifice their beliefs to agree with the other four. In this case, Roberts and Alito tried to take a narrow view, much to the chagrin of Scalia. Surely Breyer or Souter or someone could have joined the Chief, and tried to write an opinion a bit more to their liking. They chose not to. If Roberts isn't even going to win votes by trying to keep his ruling narrow, he may as well go all out. In the field of campaign finance, at least, that would be a good thing.
4. Crocodile tears about the abuse of precedent. All the folks who sat idly by while the McConnell decision abused precedent are now up in arms. Souter's decision is as good a place as any to go for an example of how they are still willing to abuse precedent, e.g.: "campaign finance reform has... consistently focused on the pervasive distortion of electoral institutions by concentrated wealth..." (slip opinion at 20. Hey, Souter - read Buckley v. Valeo. Hypocrits. It's that simple.
5. Well, we have to go back to the Souter opinion for a bit. You've got to love footnote 18, in which he disses the Pew Trusts/Brennan Center's baby, the Buying Time studies. Why, according to Souter, there is "not a shred of evidence" that the Court relied on them. (slip opinon at 26, n. 18). Guess the folks and Pew and Brennan just lost their bragging rights.
Well, enough. There is much more to do.
posted by The Centerman | 10:47 AM
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