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The Other Shoe Drops


Shorter Supreme Court Republicans:  Allowing more people access to the political process without preventing other people from spending their money if they choose violates the First Amendment.   Plutocrats and their agents should have the field to themselves!

This case is much, much worse than Citizens United, which at least had a reasonable basis in the First Amendment.   This case strikes down a law that doesn’t prevent people from spending as much money as they want if they choose and represents a net increase in political speech.    Another key excerpt from Kagan’s dissent, which immolates the majority’s reasoning and scatters the ashes in the Potomac:

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

This one immediately leaps somewhere toward the top of the list of “Worst Roberts Court Decisions,” not an easy standard.

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  • mpowell

    Wow. This is terrible. It’s hard to read this as anything other than this SCOTUS committing themselves to the principle that the public cannot be allowed to take steps to prevent political bribery. I can’t imagine a person coming to this conclusion for any other reason.

    • timb

      money is speech. That’s their opinion. The reasoning that follows: more money equals more speech, which means less speech for others, is not something they are troubled about.

      • the money is speech principle doesn’t matter here. As Scott notes, there’s no contribution cap at issue here, just a public financing system available to all candidates. This is the SCOTUS straight up tilting the field further in favor of rich people and basically declaring that any legislative action to balance the field will be stomped on by the court.

        In related news, I very much hope Ginsburg retires soon. Much as I appreciate her as a justice, if Obama loses in 2012 and she vacates her seat in the next Presidential term, we are all well and truly fucked.

      • mpowell

        No, you’re missing the crux of this case. What they have ruled is that having more money means not only are you entitled to have your views heard, but the state cannot attempt to deal with this by allowing other views to be heard as well. It is no longer just a right to the speech money affords you, but the right to be able persuade the number of people that is your god-given right by virtue of how wealthy you are. There is no principle that can be expressed accurately here without sounding absurd.

        • timb

          If you read the holding, what they found (and I agree that it is absurd) is that the quantity of speech suffers if your opponent’s war chest increases (from state action) because you spent money.

          Remember to the Robert’s Court, the common sense idea that there should be a “level playing” field is obscene and the State must not “level” that field.

          To anyone other than a hand-maiden for oligarchs, that seems outrageous….begs the question: if I give up my Don Quixote-esque struggle against the monied class will one of them please show how to be a hand-maiden?

    • hv

      I think that SCOTUS heard our local troll was starving and wanted to throw some meat out there.

    • Harry-the-Hat

      Wow. This is terrible.

      Hey, at least the homosexuals can marry in NY.

      Sometimes it just takes another viewpoint to show the silver lining in the cloud…

      • hv


  • Anderson

    Bizarre indeed.

    Scalia’s video-game opinion, however, was quite good, taking several shots at Alito & Roberts. (And Breyer’s dissent raises some question whether he quite understands his job description.)

    • Scott Lemieux

      Have to get to that…

      • Scott Lemieux

        To readers who want to save time, the LII has excerpted only the good parts of the Breyer dissent.

      • Anderson

        I pulled some Scalia snark, for the readers who just want to see other justices getting dissed. (You know who you are!) Alito is treated as an idiot not once but several times.

        • I get the 404 on that link

          • Hogan

            If you go here, you can open a PDF version.

          • Scott Lemieux

            I get the 404 on that link

            Dhat’s da joke.

  • Joe

    For pdf files of opinions: http://www.supremecourt.gov/

    Kagan has a down to earth style in her dissents that suggests why Obama wanted her on the Court, even if we do not like her opinion on certain issues.

    As to the video game ruling, Scalia also takes a potshot or two at his pal Thomas, whose “originalism made me do it” rule here is shown to be rather bogus in practice.

    • Oscar Leroy

      And don’t forget her legendary powers of persuasion that will allow her to convince other members of the court to…well, maybe next time.

  • CJColucci

    The Kagan nomination didn’t excite me, but, damn, she can write.

  • wengler

    So we can’t have publicly financed elections because that endangers corporations first amendment right to buy politicians?

    Why buy politicians when the Supreme Court is a lifetime appointment?

    • Paulk

      In other words, “Why rent when you can own?”

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  • Rob

    So when are taxes declared unconstitutional? After all we now have that money is clearly speech and that the government giving everyone money for speech is unconstitutional, the government collecting money must be an imposition on the right to speech.

  • p j

    One can’t help but be in awe of this myopic decision as our republic crumbles.

    • DrDick

      What is this “republic” you speak of? for our conservative majority on the court, this is a nation of, by, and for the oligarchs.

  • urizon

    If money is speech, doesn’t the fact that I’m broke mean my First Amendment rights are being violated?

    • Tom Allen

      Nah, just means you should shut up like the rest of us poor shmucks. :-(

      • timb

        All animals are equal; it’s just that oligarchs are more equal than others.

    • Michael H Schneider

      If money is speech, doesn’t the fact that I’m broke mean my First Amendment rights are being violated?

      No, it means that poor people are dumb.

  • dan

    The present 5-member majority is exactly like the Lochner Court in that it assumes that the present social order is written in to the Constitution and any government effort that contradicts that order must be unconstitutional. Thus, if Richie Rich can spend ten million on an election and Joe Schmo can only spend ten thousand, any system of government financing that disrupts the 1,000:1 ratio of spending infringes on Richie Rich’s natural right to reap the benefit of his wealth. Speech has nothing to do with it; this is about preserving the existing financial caste system within a political system.

    • Sharon

      As Lana from Archer would say, “Yup!”

      • hv

        OMG, just discovered Archer like 2 months ago. SO GOOD!

        (Any relation to Frisky Dingo?)

        • Ben


          The same guy writes and animates both shows.

    • timb

      My Con Law professor (who, as it turned out is a wingnut) wrote a whole book on that subject


      His theory posited a generational regime to Constitutional interpretation, where after the existing order is defeated at the ballot box, the only remaining members of that cohort are on the Court and they fight a rearguard action.

      Methinks he had in mind the Burger Court, but I always hoped it actually pertains to the Roberts one.

      Roberts is just a terrible human being. A Catholic aristocrat running my secular government….just a tragedy, since he would been an integral part of Queen Mary’s Court before that cursed Elizabeth ruined everything)

      • Joe

        Gerard N. Magliocca is a wingnut? Reading his stuff at Concurring Opinions (and the book), you wouldn’t know it.

        • timb

          I didn’t know it either, but now I know why he called on me all the time!), but he wrote an article to the NY Times re: the Sotomayor nomination where he mentioned clerking for some right wing justice and very conspicuously mentioning that he did not vote for Obama.

          He is so measured in his teaching that I should return the favor and remember that when I call him a wingnut, that implied he is like an Althouse. He is NOT an Althouse.

          • Joe

            Those two things don’t really make him a “wingnut.” Also, he supported the nomination.


            I read the article I believe you reference [5/27/09]. He labels himself a “conservative.” I think that is a respectable person who I often disagree with. I would use “wingnut” in a more disparage way.

            But, thanks for the clarification.

          • Karate Bearfighter

            Steven Calabresi is the wingnut who founded the Federalist Society; Judge Guido Calabresi, (his uncle,) compared W to Mussolini during the 2004 elections and called on Americans to throw him out of office to “reassert democracy”. I have a hard time thinking of Guido Calabresi as “right wing”.

            • timb

              oops…..he still called on me too much!

              Still, in Indiana, of all places he voted for McCain. Besides, I took the “wingnut” thing back. Jeez, sensitive commenters we have her

              • timb

                her= here

            • timb

              Besides, I consider Posner to be right wing and Guido and Posner are considered the fathers of law and economics.

          • cd

            Not to add to the discussion but I just have to say that my dislike of A-A could launch a thousand ships.

            And that’s before getting to her teaching.

    • Harry-the-Hat

      Free speech….not guaranteed equality of speech.

      • Anonymous

        That’s true, but it’s an argument against the position that Arizona’s law was consitutionally required. No one’s arguing this, so it’s irrelevant.

  • timb

    In the last two centuries of the Roman Republic, the massive acquisition of land into the Republic’s hands exacerbated economic inequality. As the rich folks estates grew bigger from land grants and purchases; the ability of the small freeholder to compete at market with the rich’s vast estates cultivated by slaves decreased. They sold their land to rich people and moved to the cities to be on the grain dole.

    The immense need to re-settle veterans and the immense ability of some rich men to be so rich they could hire gangs of thugs to roam the streets and private armies to battle the state if necessary caused the fall of the Republic.

    The fall of vibrant enterprises is generally not one stupid decision or even a set of silly ones. Seems to me, a necessary respect for the traditions of the State carries with it the poisoned pills of later ossification. Here, we have a legitimate private interest — the ability to speak freely and amplify one’s speech so that it reaches to most people — completely warped so that it creates an American aristocracy in which the stated goal (“more speech”) is turned on its head due to fealty to the original idea.

    With these sorts of decisions, the future of private armies and gangs in the street comes closer to reality (I mean, what is Breitbart if not a reincarnation of a Clodius just bound to the internet?)

    • Incontinentia Buttocks

      This is one of the peculiarities of our present political moment:

      People across the political spectrum issue apocalyptic predictions about our immediate future. In the Bush years, progressives cried “fascism.” Teabaggers today rail against the un-American “socialism” of Obama. Horrific SCOTUS decisions like this are greeted with comments about the impending collapse of the republic.

      And yet. Virtually nobody, as far as I can tell, actually thinks it can or will collapse. How many Americans doubt that there will be presidential elections in 2012, 2016, and 2020?

      I don’t make this point at all to dismiss the apocalyptic rhetoric (though clearly a lot of it is misplaced), but rather to point out the broad effects of our political elite’s Olympian insistence that There Is No Alternative to capitalism, liberal democracy, and the continuation of the USA.

      We all talk apocalypse and then act as if our politics is more or less business-as-usual, voting for the Democrat (or the Republican…though obviously not so much in this crowd) as the less bad alternative, all things considered. Accepting, when “our” side wins, that whatever it does is really the best that can be accomplished under the circumstances.

      What happens if the levy actually breaks, if we get our own Arab Spring (or Berlin 1933 or Petrograd 1917….pick your nightmare or your dream) ? The question seems almost absurd and not worth considering. We clearly don’t believe our rhetoric. Perhaps we should.

      (Though I should add that I’m actually very confident that there’ll be a 2020 Presidential election, exactly as scheduled. This comment is as much addressed to myself as it is to anyone else.)

      • rm

        Yes, but “impending” can be on a broader scale. I think by 2100 (if climate change doesn’t screw everything in utterly unpredictable ways) we could conceivably have a state of civil liberties like we did for most of our history, where “freedom” means an oligarchy of a privileged class. Not going down that road will require massive reform.

      • timb

        Yeah, I predicated my comments on incidents that took place a hundred plus years from the collapse of the Republic for a reason. I don’t see apocalypse on the horizon either.

        In fact, given the progress in this country in the last 50 years, I actually believe someday a Constitutional Amendment for publicly financed elections is in our future (otherwise, Milo and Clodius). For that reason, silly Court decisions by 50 year olds who will seemly never leave the Court in my lifetime (and I’m 41), disappoint me because it means we are no where nearer to that goal.

        Mass Communications means an oligarchy much more powerful than the one which wrestled control of the country from 1830 to 1930.

        • hv

          For that reason, silly Court decisions by 50 year olds who will seemly never leave the Court in my lifetime (and I’m 41), disappoint me because it means we are no where nearer to that goal.

          It puts us one baby step closer to the goal because fewer people can argue that it will take less than that to make progress.

          Hopefully, the number of people who have confidence in the SCOTUS as helpful in campaign reform is dwindling quite rapidly.

      • Davis X. Machina

        How many Americans doubt that there will be presidential elections in 2012, 2016, and 2020?

        There were annual consular elections in Rome right through the reign of Augustus. Sometimes function matters, sometimes forms.

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  • TT

    If allowing unfettered public financing helped the Republican Party at the expense of the Democratic Party, you can bet that Roberts & Co. would have voted to uphold Arizona’s law.

    • timb

      Which begs the question, would the vote still be 5-4?

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  • Kurzleg

    Is the line of thinking that the ability to raise campaign money is some sort of proxy for popularity? And that public financing distorts this perfectly good and vaguely democratic dynamic? In other words, the state is potentially distorting election results by subsidizing less popular candidates?

    • efgoldman

      No, no it isn’t.
      I’m not a lawyer nor a legal scholar (nor any other kind of scholar, for that matter). But the clarity of the current majority in ruling in favor of money, corporations and large institutions [that they like] and against individuals and the powerless is as clear and manifest as the blue sky.
      And it will take decades, and some luck, to undo.

    • timb

      You can so go read the holding (it’s like 2-3 pages) of the decision and it explains quite clearly the majority’s rationale

      • timb

        I have no idea why the word “so” is in the first sentence

    • hv

      No, the Wizard figured out that the problem with hiding behind a curtain is that when the little dog pulls it aside, you have an awkward moment.

      The Great and Powerful SCOTUS is willing to present itself as a dumpy old scoundrel right out of the gate these days. What are you gonna do about it? You still want that heart, dontcha?

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