Justice Ginsburg knows the Citizens United decision was a mistake...

[babylonsister]

Occupy the Super PACs
Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power.

By Richard L. Hasen|Posted Monday, Feb. 20, 2012, at 7:15 AM ET

snip//

Justice Ginsburg agreed that staying the Montana ruling was the right course, because lower courts are bound to apply Supreme Court precedent even if it is wrong; it is for the Supreme Court to fix its own wrong precedents. But then she added these words in a statement for herself and Justice Stephen Breyer with respect to the stay: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ A petition{to hear the case} will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

In this short statement, Justice Ginsburg quoted from the least defensible part of the Citizens United opinion. As I explained in October, according to the Supreme Court, the only government interests that can justify limits on campaign money against First Amendment challenge are the prevention of corruption or the appearance of corruption. (This interest is what explains the constitutionality of limits on contributions to candidates.) In Citizens United, Justice Kennedy, writing for the court majority, resolved as matter of fiat what had appeared to be a factual question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” He further declared that “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”

Justice Kennedy presents the issue of corruption and the appearance of corruption as a matter of fact, and the Montana court took Justice Kennedy’s on his words and said, “Ok, let’s take a look at the facts” in Montana. There is a large history of corporate spending corrupting the political process here, so our state’s laws are justified.

With last week’s statement, Justice Ginsburg has signaled that she or one of the other justices opposing the Citizens United case will use the Montana case to expose the fallacy of the Citizens United argument. Although Justice Kennedy indeed stated the issue of corruption and independent spending as one of fact, we know it is a fiction. As former FEC chair and campaign-finance opponent Brad Smith explains: “In fact, Citizens United’s holding that independent expenditures are not ‘corrupting’ is not a statement of fact, but a statement of law. In this respect, it is similar to contractual doctrines that imply consent where consent is truly a fiction; or criminal doctrines that throw out confessions that were freely given, on the grounds that they were not probative because the accused was not properly ‘Mirandized.’”

The explanation reveals a great deal. If a doctor gives emergency CPR to an unconscious person, the doctor cannot be sued later for battery even though the person was touched without consent. Though this principle is sometimes referred to as consent “implied in law,” in reality, it is the law excusing the lack of consent. In other words, a fiction.

more...

http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.single.html

[JDPriestly]

1. K&R and applause for Justice Ginsburg.

Of course, one problem is that, in my opinion, at least one of the Supreme Court justices behaves in ways that can give rise to the appearance of corruption.

And, by the way, referring to corporations as "persons" is also a legal fiction as I understand it.

[DallasNE]

5. Justice Thomas Is Living, Breathing Proof

Of the fallacy of Justice Kennedy's majority opinion. Corruption is what has fueled the transfer of wealth to the super rich. If corruption is the yardstick then Kennedy has been corrupted.

[liberalmike27]

2. There seems to be this weird presumption

Here that the SC somehow didn't realize this would happen,that a ton of money would drop in elections and influence them to the extent of electing more republicans, and further moving the political ideological spectrum to the right. I don't buy that at all.

What happened was, republicans lost. They lost massively in 2006 and 2008. So the SC took action, and pumped more money into an already flawed system, so republicans could once again, shore up their party in election, with money. And we see what happened in 2010.

Hopefully enough people will be educated to understand the only way we're going to get out of this is to elect Democrats who will appoint a replacement that is anti-corporate money, reversing their slight advantage. You'd think for issues of this importance they'd have to have a supermajority as 5-4 seems inadequate.

[indepat]

3. Thank you Justice Ginsburg, for shooting nasty flares up the asses of Justices Roberts, Alito,

Scalia, Kennedy and Thomas: the illumination is so great, all the world can see this travesty.

[LiberalLovinLug]

4. Ewwwwwwwwwwwwwwww

burn baby burn

[DallasNE]

7. The Surprise Is The Speed With Which

This is being taken up. My guess is that Kennedy may be having second thoughts and wants a do-over. At least, let's hope so. (There is no hope with the other 4).

[Fozzledick]

6. Too bad the court won't address the appearance of corruption caused by the CU decision itself.

[Dont call me Shirley]

8. Obviously Justice Kennedy suffers from dementia and should step down immediately.

He has proven beyond a reasonable doubt that he is unable to form rational opinions and make sensible decisions.

[NRaleighLiberal]

9. sky is blue, water is wet...and the Citizens United ruling was wrong = obvious. common sense.

That's the problem - the right wing has no sense (common or otherwise).

[jberryhill]

10. Well, ummm... she joined the dissenting opinion when it was published

So, one would assume she's pretty much always known it was wrong.

[Ruby the Liberal]

11. I was just going to ask about this.

Who wrote the dissent, and is there a link to it?

[jberryhill]

14. Of course...

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

Dissent starts at page 88

[Ruby the Liberal]

12. Alito, to me, is the face of this.

Caught during SOTU 2011 mouthing "thats not true" when President Obama said that this was a bullshit decision (in so many words).

"in light of the huge sums currently deployed" - whatever it takes, I guess, and if they have to justify revisiting it because no one, ever, could have EVER seen this coming, well, then all the more power to them.

[Octafish]

15. Good memory, Ruby the Liberal. You pegged the guy.

It was precisely the moment when Alito exposed the gangsters for the fasists they are.

[lonestarnot]

18. aL EATO aka Grimace should eat his own face that crooked elitist bastard.

[BumRushDaShow]

13. Thanks for posting this

It really helped to clarify the whys and wherefores in Justice Ginsberg's opinion as well as the fine detail of the arguments of the law.

[Vattel]

16. The whole appearance of corruption argument is bullshit.

Let's hear it for the first amendment!

[midnight]

17. I agree.....Now overturn it.