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This is huge.

The Montana Supreme Court has just upheld the state's ban on corporate spending in state elections, a ruling that stands in stark opposition to Citizens United and overturns a lower court's ruling that had deemed Montana's century-old ban on election spending unconstitutional.

The immensity of this moment – and the potential reverberations this ruling could have – cannot be overstated, for Montana's highest court has provided a blueprint for how other states can contravene the Citizens United decision in state and local elections.

The Great Falls Tribune Reports:

The Montana Supreme Court restored the state's century-old ban on direct spending by corporations on political candidates or committees in a ruling Friday that interest groups say bucks a high-profile U.S. Supreme Court decision granting political speech rights to corporations.

The decision grants a big win to Attorney General Steve Bullock, who personally represented the state in defending its ban that came under fire after the "Citizens United" decision last year from the U.S. Supreme court.

"The Citizens United decision dealt with federal laws and elections — like those contests for president and Congress," said Bullock, who is now running for governor. "But the vast majority of elections are held at the state or local level, and this is the first case I am aware of that examines state laws and elections."

The State of Montana has, since the 1912 Corrupt Practices Act, banned direct corporate spending in state elections. When, in 2010, the U.S. Supreme Court ruled in its Citizens United decision that corporate free speech – in the form of political campaign spending – was constitutionally protected, Montana's ban was immediately challenged in the courts as unconstitutional.

Three Montana corporations – Western Tradition Partnership, Champion Painting and Montana Shooting Sports Association – took the State to court, charging that the 1912 Corrupt Practices Act was unconstitutional. A lower court agreed, and ruled that Montana corporations' election spending was now protected by the First Amendment based on Citizens United.

However, in an incredible and deeply significant decision, Montana's Supreme Court ruled against the lower court using strong, unequivocal language.

Here is a critical section from the court's synopsis:

The [Montana] Supreme Court applied the recent decision of the United States Supreme Court in Citizens United v. F. E. C., 130 S. Ct. 876 (2010), to examine the constitutionality of the Montana statute, and more particularly to determine whether Montana had demonstrated a compelling interest for the expenditure prohibition. Based upon the history of blatant political corruption that led to the enactment of the prohibition, as well as upon continued corporate influence and control in Montana into the twentieth century, the Supreme Court concluded that the State had and continues to have a compelling interest in curbing the corrupting influence that could arise from large expenditures of corporate money in Montana elections.

Perhaps the most significant element of this ruling is that it has provided a high-profile case for which the U.S. Supreme Court may be compelled to revisit the Citizens United decision. (Indications are that this ruling will be appealed to the U.S. Supreme Court.)

Again, from the Great Falls Tribune:

A group seeking to undo the Citizens United decision lauded the Montana high court, with its co-founder saying it was a "huge victory for democracy."

"With this ruling, the Montana Supreme Court now sets up the first test case for the U.S. Supreme Court to revisit its Citizens United decision, a decision which poses a direct and serious threat to our democracy," John Bonifaz, of Free Speech For People, said in a statement.

Whether additional states will challenge Citizens United at the local level remains to be seen. But with Montana exhibiting the legal rationale for going over Citizen United's head (in claiming it only applies to federal elections), it's likely that other states, even those without existing local bans, will follow suit.

And it's likely that, at some point, Citizens United will have to be revisited by the U.S. Supreme Court.

We can only hope that what has occurred in Montana leads to a reversal of Citizens United and the ending of corporate free speech in America.

Dylan Ratigan must be grinning this morning.

As am I.

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Follow me on Twitter @David_EHG
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Author's Note 1:

On page 64 of the court's ruling, I found this particular section, entitled "Citizen Protection," to be particularly resonant:

                                   C. Citizen Protection
¶108 The Court observes that allowing unlimited independent expenditures of corporate
money into the Montana political process would “drastically change campaigning by
shifting the emphasis to raising funds.” Opinion, ¶ 30. Direct political spending by
corporations could also “significantly affect the outcome of elections.” Opinion, ¶ 32.
The Court explains that Montana has a small population and enjoys political campaigns
marked by person-to-person contact and a low cost of advertising compared to other
states. Opinion, ¶ 30. Thus, the infusion of unlimited corporate money in support of or
opposition to a targeted candidate would leave the average citizen candidate “unable to
compete against the corporate-sponsored candidate.” Opinion, ¶ 38.
¶109 Furthermore, Montana voters feel they do not really “count” in the political
process unless they can make a material financial contribution; and they are concerned,
therefore, that special interests hold sway.

Author's Note 2:

This decision recalls for me one of my favorite political cartoons on the Citizens United decision, crafted by Kip Lyall:

k4

Originally posted to Writing by David Harris Gershon on Sat Dec 31, 2011 at 10:33 AM PST.

Also republished by Occupy Wall Street, Good News, Dream Menders, ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement, and Progressive Hippie.

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    by David Harris Gershon on Sat Dec 31, 2011 at 10:33:56 AM PST

  •  Thanks. Great news. Will read (31+ / 0-)

    the opinion to get a fuller understanding of how they deal with Citizens United. Appreciate the heads up.

    Further, affiant sayeth not.

    by Gary Norton on Sat Dec 31, 2011 at 10:42:55 AM PST

    •  Corporations are a legal creation - unlike people. (84+ / 0-)

      The basic logic of Citizens United, drawing an equivalence between humans and corporations has always been deeply flawed.  The meta-rationale for fundamental civil rights is grounded in the idea that God (or nature) imbued people with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness (as codified in our Constitution and the Bill of Rights).  The reason government can't mess with these rights is supposed to be that these rights flow from God or nature, and thus can't be legitimately curtailed by mere people.

      Corporations are an entirely different matter.  Corporations are entirely human-created, by governments and their legal systems.  Corporations aren't "people" because God or nature made it so.  Corporations are "people" because various legal systems (some democratic, some authoritarian, some dictatorial) chose to make it so.  

      Unlike God or nature, what governments create (like corporate law) governments can change.  Conversely, humans can't legitimately change creations of God or nature (like fundamental human rights).

      This is not a complicated concept, and it is fundamental to a basic understanding of the basis for fundamental rights, both philosophically and legally.  Citizens United, like Bush v. Gore, was just a predetermined political result in search of a rationale by an activist conservative Supreme Court.  The good news about that is that the legal rationale for Citizens United is frightfully weak, and like Dred Scott, its just a matter of time before a more intellectually honest bunch of Supremes overtimes it.  Hopefully it won't take (like Dred Scott) 60 years for it to happen.

      Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

      by The Knute on Sat Dec 31, 2011 at 11:07:08 AM PST

      [ Parent ]

      •  It, too, think Citizen's United was wrongly decide (19+ / 0-)

        but that is not the point now. The question is whether this case presents a basis to limit CI's applicability. Having just read the opinion, I think it does, which I discuss below.

        Further, affiant sayeth not.

        by Gary Norton on Sat Dec 31, 2011 at 11:18:14 AM PST

        [ Parent ]

        •  "I" not "It" ya dummy/ (1+ / 0-)
          Recommended by:
          Seneca Doane

          Further, affiant sayeth not.

          by Gary Norton on Sat Dec 31, 2011 at 11:47:18 AM PST

          [ Parent ]

        •  The Supreme court majority knew exactly what it (13+ / 0-)

          was doing as it upheld unlimited spending in electoral contests and struck down any sort of fairness rules that placed limits on campaign advertising spending.  It wanted to reserve the rule of the wealthy players, the corporations and surrogates over any individual of ordinary means. This was an intentional sweeping away of the ordinary citizen typical of the millions and millions of people with modest means ability to compete, to exchange on a level playing field.

          Just as they did in Bush v. Gore, intervened to stop a Florida recount and jump to a conclusion to end the process on their own partisan terms, they also said "this B v G decision is no precedent, a one time fix for a troublesome process." The Citizens United case was also a fix, by the millionaires on the court for their other millionaire and billionaire friends  so they could wage effectively outside amounts of influence in and over the electoral process with their excessive reach and control now enshrined in law.

          There have been many, many years where the SCOTUS has sided with the slaveowner, apartheid, with the financial industry and the magnates of banking and commerce to keep in check the ordinary citizen.

          We were forced to fight a civil war over unresolved and troubling questions of feudalism of which slavery was a legal part , not a mistake but a historical practice that we could not get rid of even forty or fifty years after many countries in the world had done so.  The largest impact decisions were unusual  and rare moments after decades of sloth and keeping the lid on urgently desired reforms and rights.

          I believe when the state case is taken up, the Supreme Court  will reach, crafting  a decison that validates CU in stripping limits for the Federal offices contested in Montana and will cripple or severely limit the applicability of the precedent and Montana's law.  They have every incentive to do so.  This is about control, not about some mythical "fairness" standard.

          If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever.... well, you will be run off in 20 minutes., you will leave town having wasted your effort 6/18/11.

          by BeeDeeS on Sat Dec 31, 2011 at 05:23:07 PM PST

          [ Parent ]

      •  Speech Is Not a Freedom of the People. (7+ / 0-)

        Not in the Bill of Rights.

        Bearing arms is a right "of the people." Being secure from unreasonable search and seizure is a right "of the people."

        In the 1st Amendment though it's the speech itself that possesses the freedom. It's not freedom of "the peoples' " speech or freedom "of the people to speak," it's "freedom of speech."

        Keeping the content unrestricted means it doesn't matter where the content came from. That's got to be coloring the so-called logic SCOTUS applied.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sat Dec 31, 2011 at 11:28:35 AM PST

        [ Parent ]

        •  That's exactly the reasoning of CU (6+ / 0-)

          that the First Amendment's restriction on Congress does not depend on what is the source of the speech.  The majority expressly recognized that corporations are not "natural persons" (contrary to a pervasive myth that they said corporations are people) but held that the First Amendment was not limited to speech (which includes books, magazines, movies, etc.) put out by "natural persons."  

          If the First Amendment mentioned some rights of "people" similar to those other amendments, the outcome might have been different.  

          •  "...(T)he outcome might have been different." I.. (17+ / 0-)

            ...doubt it.  The particular rationalization on which the decision was based would have had to be different.  But as with many recent SCOTUS decisions (e.g, B. v. G), the reasoning is chosen to fit the result that these hypocrites want.  

            A man? A prisoner! A cage? Iron! Did Noriega care? No, sir! Panama!

            by Obama Amabo on Sat Dec 31, 2011 at 12:05:29 PM PST

            [ Parent ]

          •  However (8+ / 0-)

            However, if political contributions are a form of speech, this sets up an inequality based on one's financial status.  In other words, one person can afford $2000 worth of freedom.  Another person who cannot afford the $2000, but only $20 is at a disadvantage.  

            This whole concept including "corporate personhood" is just bizarre.  

            I'd love to know how this all fits into "equal protection under the law" when one's financial status makes one unequal.  

            Republican presidential candidate Newt Gingrich: I'm loving it.

            by NyteByrd1954 on Sat Dec 31, 2011 at 02:33:36 PM PST

            [ Parent ]

            •  So? (6+ / 0-)

              You also might not be able to afford the same caliber attorney or rifle as me either.

            •  NyteB - that does not make it unconstitutional (2+ / 0-)
              Recommended by:
              Lujane, NWTerriD

              In Valeo v Buckley (1976) the SCOTUS decided that money spent by an individual on his own campaign, or as an individual advocate, was a protected free speech right. The fact that not everyone has the ability to advocate  to the same level, because of their financial status, isn't a compelling constitutional argument and has been rejected by the Court.

              Here is an example of the issue that the Court struggles with: I own a newspaper, protected by the First Amendment, and you are a candidate for office. Every day I can run negative, damaging, stories about you on my front page and editorials supporting your opponent. Should you not be able to buy as many ads as you can afford, using any media available to you, to balance my First Amendment freedom of the press?

              "let's talk about that"

              by VClib on Sat Dec 31, 2011 at 05:37:42 PM PST

              [ Parent ]

              •  Media ownership (0+ / 0-)

                is or at least was a prerequisite to running for office, in Latin America when I lived there.

                My Dad installed the Presses 8-)).

                Who else was going to toot your horn for you.

                I see that as distinct from allowing "Citizen Corp" funding campaigns, while they want to deprive the labor unions of the same right and privilege, with "written agreement only" political contribution nonsense.

                As a shareholder, until AMR completes bankruptcy, I resent the support the company gave to politicians without asking me. Of course I didn't hold millions of shares either.

                Maybe that kind of decision should be made and required based on being a person rather than the amount of stock held?

                •  CU does not allow ANY "campaign funding" (0+ / 0-)

                  It only allows unlimited expenditures by unions and corporations for independent expenditures that must be independent of and cannot be coordinated with a candidate's campaign. I don't believe that unions should have to ask its members before it makes political contributions nor should shareholders need to approve political expenditures. I think the case the GOP is trying to make is that political expenditures by unions is a material item while direct expenses for advocacy by corporations, while they may be significant dollar amounts, are immaterial as a percent of total corporate expenses. There is no basis from a legal or accounting perspective why shareholders should be asked for permission to spend several million for political purposes when shareholder approval isn't needed for specific expenses that can cost hundreds of millions.

                  "let's talk about that"

                  by VClib on Sun Jan 01, 2012 at 02:25:14 PM PST

                  [ Parent ]

          •  in which case the answer is to revise the 14th... (4+ / 0-)

            .... Amendment, to state that the rights enumerated in the Constitution are the rights of natural persons only.  

            This should be at or near the top of OWS' agenda for 2012.

            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

            by G2geek on Sat Dec 31, 2011 at 08:42:26 PM PST

            [ Parent ]

            •  In which case the government could seize (1+ / 0-)
              Recommended by:
              coffeetalk

              the property of corporations without due process or shut down the NYT any time they pissed off a politician.

              Great idea.

              •  no more so than today; here's how: (0+ / 0-)

                The core legal rights of a corporation are:

                1)  To buy, own, and sell property in its own name, and

                2)  To sue and be sued in its own name.

                Those rights can be preserved and others selectively granted, such as due process of law, without leading to the present scenario of unlimited "corporate speech."  

                The entire concept of "legal personhood" applied to corporations, is a semantic category violation.  It blurs the fundamental distinction between a "person" and a "thing," which in turn is based on the distinction between a living object and a nonliving object, as defined in biology.  

                I have no problem with corporations existing as "legal entities," or "legal objects," that have specific enumerated rights.  Those rights would prevent abuses such as the shutdown of the NYT for pissing off a politician.  And the limits on those rights would prevent abuses that are not hypothetical but clear and present.

                "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                by G2geek on Sun Jan 01, 2012 at 09:42:57 PM PST

                [ Parent ]

                •  That may be what you want (1+ / 0-)
                  Recommended by:
                  coffeetalk

                  but it would require a whole slew of Constitutional Amendments because there is no support for this distinction in the US Constitution.

                  You would also remain with the fundamental issue that your regime would allow GE (owner of NBC) to spend unlimited money campaigning against politicians that voted against its interests but would not allow similar rights to companies such as United Technologies (another conglomerate that happens not to own a media company.)

                  •  only one; and your good arguement. (2+ / 0-)
                    Recommended by:
                    ozsea1, BMarshall

                    One word.

                    Insert the word "natural" before "persons" in the 14th amendment, and it's done.  The rest evolves by case law.

                    So about your good arguement.

                    Admittedly you raise a serious issue with respect to media corporations as contrasted to non-media corporations.  So let's take that one piece at a time:

                    First, separate carriers from content.  This gets the telcos and broadband providers back to the "content-neutral" stance that existed during the days of telecom regulation.  They can sell off their content divisions to become separate corporations, with regulation preventing interlocking directorates.  

                    Next, regulate cable TV under the same FCC provisions that apply to over-the-air TV and radio.  Bring back the Fairness Doctrine and to that add a Local Content doctrine.  

                    (As for "it'll never happen," tell it to the black man in the White House.  Never say "never.")

                    Now what we have left are "pure" content corporations: from the traditional print & broadcast media to the new creations of cyberspace from dKos to Netflix to "social (surveillance) media."   Those are the "pure case" in favor of your arguement that media corporations are somehow substantially different to other types of corporations.

                    And the way I would address that issue is as follows:

                    The rights of speech and press inhere in the "natural persons" of the corporations' shareholders.  The shareholders in turn can choose not only a corporation's management in the financial sense, but also in the editorial sense.  When the shareholders of the NY Times choose a CEO to serve as Publisher and Editor in Chief, that is exactly what they are doing.  The same case applies to every other media corporation: the shareholders are exercising de-facto (though indirect) editorial control.  

                    The difference between a media corporation and something else such as United Technologies, is that the media corporation's product is media.  If the shareholders of UT wanted to be in the media business, they could invest accordingly; and to the extent that they do not, then clearly they do not wish to be in the media business.

                    We will still have to contend with the issue of who controls the media corporations.  And one way to deal with that might be a form of regulation that splits "preferred stock" (first in line for dividends, but has no vote for Board positions) from "common stock" (has a vote but is second in line for profit) and allows each natural person to hold only one share of the common stock: thus a system of "one person / one vote" replaces "one dollar / one vote."  This would enable enormous numbers of ordinary people to acquire stock in their choice of media corporations, and exercise a vote that affects their editorial positions.  

                    Whether or not any of this ever happens remains to be seen.

                    But further increase in the power of plutocracy might eventually become so onerous as to trigger a revolution, and after that, it's anybody's guess.  

                    "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                    by G2geek on Sun Jan 01, 2012 at 11:52:19 PM PST

                    [ Parent ]

                    •  You don't know much law, right? (0+ / 0-)
                      Insert the word "natural" before "persons" in the 14th amendment, and it's done.  The rest evolves by case law.

                      Um... not really.

                      It means that corporations have no rights under state law except those guaranteed by state constitutions.

                      So, for example, a state can take the property of a corporation without due process and there would be no recourse.

                      You also still have not explained why GE should be allowed to use its ownership of NBC to advocate for policies / politicians it supports but UT should not be able to counter just because it does not own a media company.

                      BTW, how do you define a media company?  Can any company just rent some presses in the six months leading up to election day?

                      •  Your opinion, only (1+ / 0-)
                        Recommended by:
                        G2geek

                        as is G2geek's; and, as the cards lay, he has the better hand.

                        And as for the implicit ad hom in your comment subject line:. it adds nothing to the merits of your argument.

                        Nothing.

                        "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

                        by ozsea1 on Mon Jan 02, 2012 at 12:37:04 AM PST

                        [ Parent ]

                        •  Except my opinion is based on what the 14th (0+ / 0-)

                          Amendment actually does.

                          If you add "natural" there so the 14th Amendment only applies to rights of natural persons then obviously it does not apply to corporations so corporations would not be able to assert their rights against states in federal court.

                          Is this even remotely non-obvious?

                          •  You just blew off what G2 offered (1+ / 0-)
                            Recommended by:
                            G2geek

                            to address your concerns.

                            So to answer your question, yes, it is remotely obvious that it's your non-persuasive opinion only, and no, that doesn't make it a fact.

                            "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

                            by ozsea1 on Mon Jan 02, 2012 at 01:07:01 AM PST

                            [ Parent ]

                          •  G2 offered nothing to address my concerns (0+ / 0-)

                            that amending the 14th Amendment as he suggests would not do what he thinks.

                          •  here, have a byte or three: (2+ / 0-)
                            Recommended by:
                            BMarshall, ozsea1

                            Any arbitrary confiscation of corporate property will immediately produce a strong enough market reaction to put a stop to it.  And I did say "evolving case law."  

                            Further, corporation law, that enables the creation of corporations in the first place, can be amended to include rights of due process.  

                            Beyond that, confiscation of corporate property without due process is confiscation of the collective property of the shareholders, so they have "natural person" stakes in this.

                            As for non-media corporations, and the rest of that: how'bout you go back and read what I actually wrote?

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:52:33 AM PST

                            [ Parent ]

                          •  So it seems you agree on the (0+ / 0-)

                            point that states would be able to confiscate corporate assets.

                            Beyond that, confiscation of corporate property without due process is confiscation of the collective property of the shareholders, so they have "natural person" stakes in this.

                            Nonsense.

                            Try to go to court to sue as a shareholder of a company if you think the government has illegally taken corporate assets.  You have no standing - only the company does.

                            As for non-media corporations, and the rest of that: how'bout you go back and read what I actually wrote?

                            I did.  It was silly.

                            Owners of GE have chosen to invest in a media company.  So?  Connection to why GE has speech rights but UT does not?

                            Or if UT responds by buying political ads then haven't the investors in UT chosen to invest in a company that speaks on political topics during elections?

                            No difference.

                          •  if the company has standing, there is no issue. (1+ / 0-)
                            Recommended by:
                            ozsea1

                            If under your fictional scenario, the company has no legal standing, then the legal standing reverts back to the shareholders and their lawful representatives in the form of the Board of Directors.

                            As for speech rights, NuCor produces steel and Lehigh produces portland cement.  If you want to invest in a steel company, buy NuCor shares but don't complain that they aren't producing cement.  

                            Methinks thou does protest too much.  Ever hear the phrase "the paralysis of analysis"...?

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 04:39:02 AM PST

                            [ Parent ]

                          •  How do you get that? (0+ / 0-)
                            If under your fictional scenario, the company has no legal standing, then the legal standing reverts back to the shareholders and their lawful representatives in the form of the Board of Directors.

                            How does that happen?  I mean I agree it would be nice... but how exactly is it supposed to happen under the law?

                            As for speech rights, NuCor produces steel and Lehigh produces portland cement.  If you want to invest in a steel company, buy NuCor shares but don't complain that they aren't producing cement.  

                            Say I wan to invest in a steel company that also buys political ads?

                          •  like this: (1+ / 0-)
                            Recommended by:
                            ozsea1

                            Property is owned by a legal entity of one kind or another.

                            Under my scheme, corporations retain the rights to:

                            Exist,
                            buy, own, and sell property,
                            sue & be sued in their own name,
                            and due process of law.

                            However if government wants to assert a right to confiscate corporate property without due process, they are infringing the rights of the shareholders to due process before being deprived of their property interest in the shares of the company, which are valued in part according to the assets of the company.  So in effect that becomes a taking from the shareholders without due process.

                            The right of due process inheres in the existence of a legal entity, whether the corporation or any of its shareholders.  (The shareholders are natural persons but every natural person is also a legal entity in that s/he has inherent legal rights and obligations.)  Denial of due process to the corporation is effectively denial of due process to its shareholders.  

                            Sheesh, how many different ways to I have to explain this one?

                            Re. "Say I want to invest in a steel company that also buys political ads?"

                            Say I want to invest in an American company that produces rotary dial telephones!  What then, eh?  Cortelco is the last American manufacturer of telephones and they stopped producing rotary dial phones in 2006; this I know because I have two from the very last batch (I'm a PBX engineer).

                            Or, say I want to invest in a company that produces antigravity devices, what then?  

                            To quote a 1960s song, "You can't always get what you want."  

                            One more thing: I would also do away with the ability to form a corporation "to pursue any legal purpose," and bring back the requirement for specificity in corporate charters, limiting them to specific and related fields of commerce.  For example, "to produce steel," or "to produce aircraft," or "to produce and broadcast television programs."  This will immediately do away with conglomerates that have unrelated far-flung interests all of which are incapable of being managed by someone with expertise in any subset of them, and thereby end up being managed by generic management types who know nothing about everything.

                            Limited liability is a privilege, not a right.  It can be subject to limitations.  If you'd rather have pure laissez-faire, go visit Somalia and write a diary if you can get back here in one piece.

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 06:39:43 AM PST

                            [ Parent ]

                          •  I understand your scheme (0+ / 0-)

                            But how do you think that changing one word in the 14th Amendment would somehow magically make it happen?

                            Re. "Say I want to invest in a steel company that also buys political ads?"

                            Say I want to invest in an American company that produces rotary dial telephones!  What then, eh?  Cortelco is the last American manufacturer of telephones and they stopped producing rotary dial phones in 2006; this I know because I have two from the very last batch (I'm a PBX engineer).

                            But you still have not explained why it's OK to have a company that owns NBC but not a company that does a newspaper or buys television time from independent stations just during elections.

                          •  originally, corporate charters spelled out... (0+ / 0-)

                            .... the field of business that the corporation planned to enter.

                            For example "a corporation to build and operate a railroad between X and Y..." or  ".... to produce steel..." or whatever.

                            Limited liability protection was considered extraordinary and was conferred for a specific purpose that required the accumulation of a large amount of capital, beyond the scope of what could be obtained in other forms of business ventures.

                            That has since morphed disastrously into the idea that a corporate charter can be "for any legal purpose" and have indefinite existence in any number of unrelated fields.  That's one of the root sources of the present plutocracy, and it has to G-O.  

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 07:23:47 PM PST

                            [ Parent ]

                          •  So you mean no conglomerates? (0+ / 0-)

                            GE has to split up?

                            But how do we define the lines?

                            Can NBC own Internet properties?  Cable?  Television production?  Television stations? Magazines?  Radio stations?  Ad sales?

                            Or is it just responsible for programming and has to outsource everything else?

                          •  thanks; and see my further reply below:-) n/t (1+ / 0-)
                            Recommended by:
                            ozsea1

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:53:02 AM PST

                            [ Parent ]

                          •  or rather, above: "here, have a byte or three." nt (1+ / 0-)
                            Recommended by:
                            ozsea1

                            "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Mon Jan 02, 2012 at 02:54:04 AM PST

                            [ Parent ]

                      •  ad-hom: you lose. (0+ / 0-)

                        I won't even dignify your rhetorical question with a response.

                        "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                        by G2geek on Mon Jan 02, 2012 at 02:55:22 AM PST

                        [ Parent ]

              •  I think you are confusing corporations and (0+ / 0-)

                the shareholders of corporations.  The shareholders  ulitmately are "natural people" (humans).  Corporations are inanimate constructs of law, not "natural people."

                The issue of taking corporate property is a taking from the shareholders (natural people), which is covered by the Constitution (5th Amendment)

                To quote:

                No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

                I have bolded the word "person."

                It is a principle of legal construction of the meaning of a word in a document is that the same word means the same thing whem used repeatedly.  Here "Person" can ONLY mean "natural person"  because a corporation can't serve in the militia, and can't be "put in jeopardy of life or limb," and can't be deprived of "life, liberty."

                So I have a BIG problem with some of our ORIGINALIST Justices of the Supreme Court holding that because corporations as "persons" for puposes of contract law, they ALSO become "persons" (as in "natural persons") as regards the 5th Amendment, or the 1st Amendment.

                And the First Amendment says:

                Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                When is the last time you saw a corporation in church?

                Again, "the right of the people peaceably to assemble" deals with HUMANS, not with disembodied COPORATIONS.  How do you "assemble" a bunch of corporations (not the owners of the corporations, and not the representatives of the corporations, the corporations themselves)?  Do you pile up their certificates of incorporation on a table?

                CU is a politically motivated opinion that runs counter even to the stated positions of several Justices who voted in the majority.  

                "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

                by BornDuringWWII on Mon Jan 02, 2012 at 04:05:03 AM PST

                [ Parent ]

          •  This is so interesting (0+ / 0-)

            The rationale for CI moves to a more ethereal level of abstraction than I had realized. It's not the conceptual entity "corporation" that has rights, it's the abstract concept "speech" that has rights. The Constitution is refigured to protect ideal abstractions, rather than people, regardless of the preamble.

            What would Chris Hedges do?

            by Red Bean on Sun Jan 01, 2012 at 12:05:11 PM PST

            [ Parent ]

            •  Not exactly. (1+ / 0-)
              Recommended by:
              VClib

              It's a limit on the power of Congress --  the First Amendment begins,  "Congress shall make no law . . . "  

              It's the same for the freedom of the press.  It's not "people" who have the right of freedom of the press.  Newspapers are not "people."  They ACT through people (just as corporations ACT through people).  But the New York Times is not a person -- it is, in fact, a corporation.  And Congress cannot enact laws restricting what the New York Times says in its papers.  

              If the First Amendment were only restricted to "people," then Congress could restrict what the New York Times prints.   What the SCOTUS held is that  the First Amendment is a restriction on the power of Congress, regardless of whether the book, or newspaper, or magazine, or movie is paid for by a person or a group of people who organize themselves as a club, a partnership, a union, or a corporation  

              •  I understand the logic of (3+ / 0-)
                Recommended by:
                Iron Spider, ozsea1, BMarshall

                the argument based on a literal interpretation of the language. The consequence of this literalist view is that if Congress cannot makes laws restricting speech then it is an ideal conception of the abstraction "speech" that is protected rather than the rights of people.

                What value ought to be protected? A pure notion of speech, which coincidentally happens to benefit the oligarchs? Or a functional, evidence-based application of rights, that limits the ability of the wealthy to manipulate opinion in elections through electronic media, an issue beyond the imagining of the founders when they wrote the phrase the Court decides to interpret in so fundamentalist a fashion.

                The Constitution isn't the writ of a Holy Being requiring an unchangeable devotion to phrases that may in fact owe their origins to literary considerations to begin with.

                What would Chris Hedges do?

                by Red Bean on Sun Jan 01, 2012 at 02:31:28 PM PST

                [ Parent ]

              •  Some speech CAN be limited even under (0+ / 0-)

                the First Amendment.

                The unabridged speech that the First Amendment is talking about is "POLITICAL SPEECH" as in "King George is an IDIOT" which might have gotten you punished before 1776.

                Certain other kinds of speech CAN be regulated (and abridged), including hate speech, slander and libel, and commercial speech (advertising).

                The classic example of limited right to speak is that you can be punished for screaming "Fire" in a crowded theater if there is no fire because of the damage that you cause.

                Although the First Amendment does not allow CENSORSHIP IN ADVANCE ("Congress shall make no law ... abriging ... freedom of the press"), there are laws that limit what you can publish without penalty, but they are only enforced AFTER you publish, and not before you publish.

                "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry

                by BornDuringWWII on Mon Jan 02, 2012 at 04:20:25 AM PST

                [ Parent ]

        •  but (2+ / 0-)
          Recommended by:
          Seamus D, jimreyn

          but networks routinely block what can be aired and what cant in way of ads.  So I never understood that the networks are above the constitution, yet the right to free and fair elections are not.

          Money isnt speech, because money by itself does not grant speech, it just allows a POSSIBILITY of purchasing of distribution channel for a specific amount of time, and ONLY if the monetary arrangement and content is deemed suitable by a particular owner of a distribution channel.

          The scotus is so full or warped logic and bullshit on that Citizens united ruling, its not even funny.

          Bad is never good until worse happens

          by dark daze on Sat Dec 31, 2011 at 01:56:05 PM PST

          [ Parent ]

          •  The difference is that networks (8+ / 0-)

            are not the government.  The First Amendment is a restriction on GOVERNMENT.  Private entities are not bound by the First Amendment.  An employer, for example, does not have to allow "free speech" at the workplace.

            That's kind of an oversimplification, but it's important to remember that free speech is not really a "right" that you have in all circumstances.  Instead, the First Amendment is a restriction on what the government can do.  

            •  More precisely, restrictions on what the (1+ / 0-)
              Recommended by:
              ozsea1

              Government cannot do.

              Cannot restrict (free political) speech.

              Cannot impose cruel or unusual punishment.

              It's why the Bill of Rights has so many "cannot"s in it.

              * * *
              I like paying taxes...with them, I buy Civilization
              * * *
              "A great democracy must be progressive or it will soon cease to be a great democracy."
              THEODORE ROOSEVELT

              by Angie in WA State on Sat Dec 31, 2011 at 11:54:46 PM PST

              [ Parent ]

            •  this is right out of Civics 101 (0+ / 0-)

              and although it is an oversimplification, as you stated; I must agree.

              However, as long as the two overarching perceptions persist that:

              1) SCOTUS leans 5-4 Republican preference

              2) SCOTUS overreached in CU, i.e." judicial activism"

              then the debates will continue.

              We may not always agree, but please do keep us advised.

              "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

              by ozsea1 on Mon Jan 02, 2012 at 12:51:33 AM PST

              [ Parent ]

            •  and why arent (0+ / 0-)

              private companies bound to allow for freedom of speech?  simple, because the government says so. So I hardly see this as a separate issue.

              Private business cant break certain constitutional rights, but it can infringe on others?  bullshit.

              Also networks are regulated by the government, they operate on public airwaves. Why cant the networks show porn then?  

              Bad is never good until worse happens

              by dark daze on Tue Jan 03, 2012 at 10:24:08 AM PST

              [ Parent ]

        •  The issue is limitation on government power (8+ / 0-)

          Free speech IS a right, just like the right to bear arms.  

          People have a "right" to say what they want, and the Constitution prohibits the government from illegitimate limits on that ability (stipulating to exceptions like yelling "fire" in a crowded theater or publishing troop movements during times of war).

          People have a "right" to bear arms, and the Constitution prohibits the government from illegitimate limits on the ability to "bear arms as part of a well regulated militia" (stipulating to exceptions like owning nuclear arms or cruise missiles, or convicted felons owning guns).

          People have a right to be secure in their homes, and the Constitution prohibits the government from illegitimate limits on that security -- some (like me) would say "privacy" (stipulating to exceptions like a warrant finding probable cause that a crime has been committed, or exigent circumstances, such as the belief that a crime is currently underway).

          These rights are known as "negative rights," and have to do with enumerating things the government CAN'T do to limit the rights of the people.  The Bill of Rights is entirely made up of "negative rights."

          These civil liberties can be contrasted with "positive rights," which are affirmative claims individuals have on the government or each others that requires specific actions (as opposed to negative rights that generally only require government inaction).  These rights include things like a right to education, a right to medical care, a right to a job, a right to not starve, etc.  These positive rights require actions on the part of others in order for your rights to be fulfilled, and are predictably much more controversial than negative rights.  In fact, Republicans and those on the right side of the political spectrum often argue that affirmative rights don't exist at all (unless, of course, you happen to be a corporation).  :-)

          Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

          by The Knute on Sat Dec 31, 2011 at 02:22:57 PM PST

          [ Parent ]

          •  but (0+ / 0-)

            whose rights were incorporated under the 14th amendment?  If the 1st is only a limitation on congress, and not a fundamental right, then it doesn't qualify to be incorporated and applicable against the states.

            If you don't watch out, your job will become one Americans won't do.

            by happymisanthropy on Sat Dec 31, 2011 at 06:40:01 PM PST

            [ Parent ]

            •  The 14th amendment is a unique case (2+ / 0-)
              Recommended by:
              Lujane, madcitysailor

              The Civil War amendments (including the 14th) made it explicit that all rights under the Constitution were applicable to all people, regardless of race.

              In addition, the 14th amendment explicitly made the constitutional limitations on federal power enumerated in the Bill of Rights applicable to the states as well (particularly equal protection and due process under the law).  

              Most (if not all) state constitutions have freedom of speech guarantees that mirror the 1st amendment, but I think most people prior to the Civil War and the 14th amendment would have agreed that the U.S. Constitution did not limit the ability of the states to limit free speech -- it would have been up to the specific wording of a state's constitution to do that.

              Afterward, most took the view that both the U.S. Constitution (through the 14th amendment) and the state constitutions provided those protections.

              Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

              by The Knute on Sat Dec 31, 2011 at 07:08:26 PM PST

              [ Parent ]

              •  asdf (0+ / 0-)
                1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

                The other four articles don't seem relevant, so I wonder where you're finding explicit protections for someone other than "persons," "citizens," "person," or "person."

                In addition, the 14th amendment explicitly made the constitutional limitations on federal power enumerated in the Bill of Rights applicable to the states as well (particularly equal protection and due process under the law).  

                If that's true, why do we have "selective incorporation" instead of "comprehensive incorporation?"

                If you don't watch out, your job will become one Americans won't do.

                by happymisanthropy on Sat Dec 31, 2011 at 07:31:21 PM PST

                [ Parent ]

                •  I'm not sure of the point you're trying to make (0+ / 0-)

                  1.  I'm not finding protections for someone other than "persons" or "citizens."  Only people should have constitutional rights.

                  2.  Selective incorporation has to do with the standards, or "tests," that are applied in determining the applicability of the 14th amendment to specific state or local actions.  Comprehensive incorporation would have made the 10th amendment and state constitutions largely irrelevant, so different tests were created (rational basis, heightened scrutiny, and strict scrutiny) to determine whether the 14th amendment could be employed to trump state action.  In the vast majority of cases federal intervention was/is unnecessary, and these tests allow for some subtlety in making that determination.

                  Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

                  by The Knute on Sat Dec 31, 2011 at 08:17:28 PM PST

                  [ Parent ]

                  •  No, the supreme court (0+ / 0-)

                    has never held that the entire bill of rights applies to the states.  For example, the second amendment was not until McDonald a couple years ago.

                    I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

                    by happymisanthropy on Sat Dec 31, 2011 at 09:46:22 PM PST

                    [ Parent ]

                    •  But That's What I'm Saying -- I Think (0+ / 0-)

                      The Court has only made that move (incorporating federal constitutional requirements on the states through the 14th amendment) in limited situations, with a very high burden of proof on the federal government (actually, it's a low standard of proof required by the states to avoid incorporation).

                      Unless it's a matter that involves racial discrimination, because of the unique history there, and the specific purpose for which the 14th amendment was adopted. Then, the state must pass "strict scrutiny" to avoid incorporation.  This is the "compelling state interest without narrower available remedies" test.

                      If the state is addressing an issue for which the federal government has defined a right as fundamental, or has constructed specific statutory protections (as in gender, age, or handicapped discrimination), then the Court applies the "heightened scrutiny" test.  This is the "legitimate state interest without narrower available remedies" test.

                      Absent that, states must only demonstrate a "rational basis" for limitations in citizens' non-incorporated federal rights in order to pass constitutional muster.

                      This is an easy standard to meet in some circumstances, but more difficult in others.  For example, the 8th amendment prohibitions against cruel and unusual punishment have basically been applied to the states through the 8th and 14th amendments, because there's not much of a rational basis for punishing convicts in cruel or unusual ways.

                      Every once in a while, the Court decides that an issue has risen to the level where incorporation is required to curtail unjustified state abridgment of citizens' fundamental or statutorily defined rights.

                      The Griswold/Roe privacy line of cases ultimately used the 14th amendment (among other things) to bootstrap a penumbral fundamental federal "right to privacy" that curtailed states' ability to outlaw both contraception AND abortion.

                      Title IX resulted in statutory protections for women in sports programs that requires the application of the "heightened scrutiny" standard to justify states treating men and women differently in the funding of school athletics programs.  This basically represented the incorporation of the equal protection clause of the 14th amendment on states regarding decisions on funding of school sports programs. The states inability to meet that standard (justifying differential funding) resulted in a number of successful lawsuits that transformed HS and college sports opportunities for women.

                      Several years ago the Court ruled in a Texas case that there was no "rational basis" justifying criminal penalties for "sodomy," so state sodomy laws were stricken down nationwide.

                      Same thing with the recent establishment of the 2nd amendment as a fundamental right, which triggered the heightened scrutiny test and resulted in limiting the ability of states and localities to implement strict gun control laws.

                      I really think we're saying pretty much the same thing here.  The 14th amendment creates numerous conflicts with 10th and 9th amendment rights, and as a consequence the Court, rather than effectively wipe out the 10th amendment, has  been pretty selective in those rights for which it's identified a need to incorporate and thus limit state action through the 14th amendment.

                      Still, it depends on the circumstances and the ability of the states, when challenged, to justify their rationale for imposing limits on the rights of their citizens.

                      Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

                      by The Knute on Sat Dec 31, 2011 at 10:34:13 PM PST

                      [ Parent ]

        •  however the case can be made that... (3+ / 0-)
          Recommended by:
          jimreyn, IreGyre, Iron Spider

          .... speech doesn't create itself: it comes from someone who is speaking.  This is empirically and logically obviously true.  (Or find me an example of speech creating itself from the void, through some kind of "spontaneous generation," and I'll admit my error in reasoning!)

          Given the entirety of the rest of the Constitution, it's clear that these rights are reserved to "the people," which is plural of "the person," and opens the door to the issue of defining who or what is or is not a "person."  

          "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Sat Dec 31, 2011 at 08:45:37 PM PST

          [ Parent ]

      •  Thank you for this beautifully lucid explanation (12+ / 0-)

        of the difference between people and corporations in the context of your Constitution.  Srsly.  No snark.  Many people, like me, can have a gut feeling that something is wrong but lack the ability to explain why clearly.  

        We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

        by Observerinvancouver on Sat Dec 31, 2011 at 12:21:28 PM PST

        [ Parent ]

      •  great analysis! (0+ / 0-)

        Thanks!  (care to develop this into a diary?)

      •  Compelling government interest.... (0+ / 0-)

        ...if there is any compelling government interest, it is maintaining the integrity of government and allowing contributions or expenditures up to a certain reasonably restricted amount.

        Restricting amounts of corporate contributions (whether direct or independent) to the amount of an individual, and banning sock puppet corporations, is the least-restrictive alternative to banning all corporate contributions.

        9-11 changed everything? Well, Katrina changed it back.

        by varro on Sat Dec 31, 2011 at 03:31:39 PM PST

        [ Parent ]

        •  varro - corps cannot contribute to campaigns (0+ / 0-)

          Corporations cannot contribute to the campaign of any candidates for federal office. The Tillman Act (1907) prohibited corporations from making campaign contributions and is still in full force and effect. The Tillman Act was not an issue in Citizens Untied and the CU decision did not effect the Tillman restriction. Contributions by corporations to candidates campaign funds are NOT allowed.

          "let's talk about that"

          by VClib on Sat Dec 31, 2011 at 05:43:23 PM PST

          [ Parent ]

          •  As we keep splitting hairs (0+ / 0-)

            The ship of state sinks...

            Sounds like a discussion by sovereign citizens.

            Essentially what is required is to circumscribe the influence of the Golden Rule, AKA He who has the Gold makes the Rules.

            •  j7915 - in any event we should get the facts right (0+ / 0-)

              There are important policy issues to discuss regarding campaign finance, but we should have that discussion based on accurate facts. For some reason as it relates to Citizens United nearly all the diaries, and many of the comments, (with some notable exceptions like Adam B) have serious errors of fact regarding the actual decision and what specific impact CU has on campaign finance restrictions.

              "let's talk about that"

              by VClib on Sun Jan 01, 2012 at 02:15:28 PM PST

              [ Parent ]

          •  The Tillman Act (1907) (0+ / 0-)

            in the real world is honored in the breach than reality.

            From Shakespeare's Hamlet, 1602:

            HAMLET:    Ay, marry, is't:
            But to my mind, though I am native here
            And to the manner born, it is a custom
            More honour'd in the breach than the observance

            "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

            by ozsea1 on Mon Jan 02, 2012 at 12:57:59 AM PST

            [ Parent ]

      •  Equating corporations to individual humans (2+ / 0-)
        Recommended by:
        The Knute, IreGyre

        ...is contrary to "E Pluribus Unum."

        It is an imposter.

        It will be exposed.

        "Corruptio Optimi Pessima" (Corruption of the best is the worst)

        by zenox on Sat Dec 31, 2011 at 06:09:38 PM PST

        [ Parent ]

        •  "E Pluribus Unum" means "From many, one" (0+ / 0-)

          It's about bringing the many states together to form one country.

          I have no idea what you think it has to do with corporations vs. people.

          •  Er...a lot. (0+ / 0-)

            To understand my meaning you must first see the symbolic and the symmetrical essence of our "reality." From many, one, also means from one, many. In other words, all for one, one for all. If it was not symmetrical, let say, if it was only from many, one, then "many states together form one country"would be the end of it. But there is that other half: from one country, many states. Sounds a bit topsy turvy I know but you can comprehend it with the effort. Think in 360 degrees, not 180.

            The nation then is not made out of groups (corporations) but from individual citizens (each unique and equal to the whole of the nation).

            "Citizens united" is an imposter.

            "Corruptio Optimi Pessima" (Corruption of the best is the worst)

            by zenox on Mon Jan 02, 2012 at 06:19:31 AM PST

            [ Parent ]

            •  But the phrase isn't From One Many (0+ / 0-)

              It is From Many One.

              Therefore your basic premise is incorrect.

              •  The difference between my point of view (0+ / 0-)

                ...and yours dear friend is simply that you see a "half moon" as a half planet, rejecting the existence of the dark side (the other half), 'cause you cannot see it. The moon of course is always a full sphere, whether we can see it as a whole or not.

                So, "From many, one" has its other half: "From one, many."

                It is up to you to "see" the full phrase, of course.

                To understand "E Pluribus Unum" thus takes "whole" vision, not half.

                -Citizens United is an imposter.

                Best

                "Corruptio Optimi Pessima" (Corruption of the best is the worst)

                by zenox on Mon Jan 02, 2012 at 12:22:27 PM PST

                [ Parent ]

      •  Brilliant synopsis: turn that into a diary. (0+ / 0-)

        That's the best rendering of the arguement I've run across on dKos since forever-ago.   Needs to become a diary.  

        "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

        by G2geek on Sat Dec 31, 2011 at 08:38:10 PM PST

        [ Parent ]

        •  Agreed (1+ / 0-)
          Recommended by:
          G2geek

          and had I read this diary yesterday, I would've added my tip to the 84 others.

          "..rich people (and the) political class..cannot be rich and do politics without us..They have no skills that we depend on; they have no control of anything except through paper. "To keep you is no benefit; to destroy you is no loss." Visceral

          by ozsea1 on Mon Jan 02, 2012 at 01:01:44 AM PST

          [ Parent ]

    •  While I am happy with the result (1+ / 0-)
      Recommended by:
      tbirchard

      (and I've only read of it what appears above) I tend to think that it will be overturned on appeal on Dormant Commerce Clause grounds, because it would prevent corporations from engaging in national advertising campaigns that would enter into Montana and would thus unduly burden free speech.  So the question is: what if all states did it?  Then it would probably have to be all right, right?  So where is the dividing line between one state and 50?

      Regardless, I like this being in play -- and if they want to reverse their earlier stupidity, now they have a good vehicle.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

      by Seneca Doane on Sat Dec 31, 2011 at 06:39:33 PM PST

      [ Parent ]

      •  This decision only concerns (2+ / 0-)
        Recommended by:
        VClib, coffeetalk

        Independent expenditures on Montana state races.

        No way the decision stands.  Could be 9-0 summary reversal.

        •  What's your expected basis for the reversal (0+ / 0-)

          other than a citation to Citizens United (which I realize might be all there is)?

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

          by Seneca Doane on Sat Dec 31, 2011 at 07:43:17 PM PST

          [ Parent ]

            •  Yes -- but not all that's appropriate (0+ / 0-)

              This is action under Montana's own constitution, dealing with intrastate issues.  Even if they're saying "you can't take away rights in state constitution that are granted in the federal constitution," it would be wise to explain that as opposed to leaving over the possibility that they are, for example, doing a Dormant Commerce Clause analysis rather than telling the states that their decision engulfs the field.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

              by Seneca Doane on Sat Dec 31, 2011 at 09:23:41 PM PST

              [ Parent ]

              •  huh? (1+ / 0-)
                Recommended by:
                VClib

                Decision, p7:

                The District  Court specifically did not address whether § 13-35-227, MCA, violated the Montana Constitution, and further noted that the decision had “no effect on direct corporate contributions to candidates or to any existing or future disclosure laws that might be enacted.”  Those aspects of Montana law are therefore not at issue in this case.  
                •  Oh -- so the same case comes up again (1+ / 0-)
                  Recommended by:
                  Adam B

                  under the state Constitution.  OK, then!  Laissez le bon temps roullez!

                  Kudos for having read the decision, Adam, when I simply relied on the summary in the diary.  I'm so glad that I didn't offer this as formal legal advice.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                  by Seneca Doane on Sun Jan 01, 2012 at 11:49:04 AM PST

                  [ Parent ]

                  •  State const'n can't provide less speech rights... (2+ / 0-)
                    Recommended by:
                    VClib, Wham Bam

                    ... than federal.

                    •  One might think so ... (0+ / 0-)

                      or one might think that this may provide a good opportunity for the Citizen's United majority to review and reconsider and revise what it has wrought.  I think that your thinking on how settled this issue is is, from your perspective, wishful.

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                      by Seneca Doane on Sun Jan 01, 2012 at 01:27:54 PM PST

                      [ Parent ]

                      •  via Rick Hasen (3+ / 0-)
                        Recommended by:
                        Seneca Doane, VClib, SoCalSal

                        ElectionlawBlog:

                        How did the Montana Supreme Court try to get around the holding of Citizens United?  It took SCOTUS’s statement that independent spending cannot corrupt and pointed to evidence that such spending has in fact corrupted in Montana.

                        ... [T]he statement in CU that independent spending cannot corrupt is a fiction.  As I explained in this Michigan Law Review piece on the case, the statement both defies common sense and is in direct tension with the Court’s holding in Caperton v. Massey.  As I argue in this piece, if the Court were being honest in Citizens United, it would have said something like:  We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.

                        But the Court didn’t say that, because it would have faced even greater criticism than it already has.  So it dressed up its value judgment (no corruption “implied in law”) as a factual statement.

                        The Montana Supreme Court called SCOTUS on this.  And when SCOTUS reverses, the disingenousness of this aspect of CU will be on full display for all.

                      •  SD - it isn't settled forever (1+ / 0-)
                        Recommended by:
                        Adam B

                        but it's settled for now. Your idea that in reviewing the Montana decision the majority will reverse themselves on CU is wishful thinking. Somewhere in this thread people are speculating that the reversal will be 9-0, which I think is much more likely than any short term change in CU.

                        "let's talk about that"

                        by VClib on Sun Jan 01, 2012 at 06:30:54 PM PST

                        [ Parent ]

                      •  Unlikely. The Supreme Court does not take kindly (1+ / 0-)
                        Recommended by:
                        coffeetalk

                        to blatant attempts by state courts to ignore its rulings.

                        •  That really depends whether there is a basis (0+ / 0-)

                          for distinguishing the earlier ruling, doesn't it?  And that small selection from Rick Hasen that Adam presents above suggests one way that there might well be.

                          Democrats must
                          Earn the trust
                          Of the 99% --
                          That's our intent!

                          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                          by Seneca Doane on Sun Jan 01, 2012 at 10:56:49 PM PST

                          [ Parent ]

      •  We already have separate fed/state election laws (1+ / 0-)
        Recommended by:
        Seneca Doane

        The Montana decision doesn't affect the applicability of Citizens United to presidential elections conducted in Montana.  The federal rules still apply.

        The Montana decision does affect local and state elections in Montana.  Since there is no interstate component to Montana intrastate elections, the Commerce Clause shouldn't be applicable.

        Not saying the current SCOTUS won't say whatever they have to to strike down the Montana decision -- but the Commerce Clause shouldn't apply to entirely local/state elections in Montana.

        Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

        by The Knute on Sat Dec 31, 2011 at 07:16:11 PM PST

        [ Parent ]

        •  Depends if they're interstate, doesn't it? (0+ / 0-)

          Can Montana regulate spending on its local elections by groups outside the state that takes place in, say, Lovell, Wyoming and is directed towards Billings?  What about powerful AM radio ads emanating from Calgary, Alberta aimed at northwestern Montana?  Doesn't this transcend state regulatory power?

          Adam B and I disagree on the merits of regulating this form of speech, but we agree that doing it constitutionally would be damn hard.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

          by Seneca Doane on Sat Dec 31, 2011 at 07:42:18 PM PST

          [ Parent ]

          •  I Think They Make This Distinction Now (1+ / 0-)
            Recommended by:
            Seneca Doane

            Political consultants have to comply with different rules governing state and local elections all the time now.  Large consulting firms sometimes have campaigns going in 10-15 states, all with different financing, expenditure, and reporting rules.  Compliance is a big part of their job now.  For example, media buys in MA for NH elections have to adapt to NH election rules, even though the buy is technically interstate commerce.

            And besides, this only has to do with election fundraising, rather than the commercial expenditure of funds across state lines.

            I wouldn't put anything past the current SCOTUS, but I can't see any basis for using the Commerce Clause here.

            More likely, I think, is that SCOTUS will try to say that the remedy (banning corporate contributions completely) is overly broad to achieve the state interest of minimizing corruption, not squeezing out the little guy, etc.  They could argue that corporation contribution limits, disclosure rules, etc., are more narrowly tailored remedies that could achieve the same ends, without unnecessarily limiting "corporations 1st amendment rights."

            Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

            by The Knute on Sat Dec 31, 2011 at 09:24:14 PM PST

            [ Parent ]

      •  Not dormant commerce. 1st Amendment. (0+ / 0-)

        This decision blatantly contradicts CU.  The Supreme Court will slap it down - not even a close call.

    •  I'm from Montana (0+ / 0-)

      and I haven't really heard anything about this story in the local presses, but I'd really appreciate it if Obama's federal Government agents stop raiding our locally approved marijuana outlets.

      Montana voters approved medical marijuana and i think that vote should be respected.

      He kind of promised to stop doing that...

      -9.50/-7.59 - "Why are the missiles called peace-keepers when they're aimed to kill?" -Tracy Chapman

      by Situational Lefty on Sun Jan 01, 2012 at 01:11:47 AM PST

      [ Parent ]

  •  ;-( links to the opinion and synopsis don't work/ (4+ / 0-)
    Recommended by:
    cai, The Troubadour, elwior, Matt Z

    Further, affiant sayeth not.

    by Gary Norton on Sat Dec 31, 2011 at 10:45:33 AM PST

  •  Wisconsin needs some Montana SC justices. (22+ / 0-)

    The majority of ours were elected via corporate cash, hence would never rule corporate cash out of elections.

    The corruption has spread so desperately -- it's good to hear news of successful push-back.

    If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality. - Bishop Desmond Tutu

    by AnnieJo on Sat Dec 31, 2011 at 10:45:49 AM PST

  •  I am a huge fan of Montana in general. This (11+ / 0-)

    is terrific.

    "You've got to stop this war in Afghanistan." final words of R Holbrooke

    by UTvoter on Sat Dec 31, 2011 at 10:47:18 AM PST

  •  That's how I like to see Montana! (18+ / 0-)

    Followed by 44 exclamation points!

    (And you guys and gals have an awesome governor too!)

    "I want my Obama back!!!"

    by Pale Jenova on Sat Dec 31, 2011 at 10:48:46 AM PST

  •  Of course Supremes will hear this case (22+ / 0-)

    It will likely be B v. G deja vu once they do.  I still recall chuckling to myself as I read the opinion issued by my state's highest court on the afternoon of 12/8/00.  They appeared to make their ruling bulletproof by repeatedly stating that their decision was based upon FL law.

    I have no idea what the MT Supremes did to potentially insulate themselves from a SCOTUS review.  I'm not sure how much it matters.  There are 4 current Supremes who are going to do what they're going to do, and a 5th who, when push comes to shove, will usually join them.

    I saw what a "10th Amendment" Court did 21 years ago, and 3 of the 5 who did it are still there.  The 2 who are gone have been replaced by kindred spirits.  I don't like the looks of this at all.

    Some men see things as they are and ask why. I dream of things that never were and ask why not?

    by RFK Lives on Sat Dec 31, 2011 at 10:50:12 AM PST

  •  Good for them! (2+ / 0-)
    Recommended by:
    The Troubadour, TofG

    Was the history of corruption already considered and rejected in Citizens United?

  •  Citizens U (12+ / 0-)
    Perhaps the most significant element of this ruling is that it has provided a high-profile case for which the U.S. Supreme Court may be compelled to revisit the Citizens United decision. (Indications are that this ruling will be appealed to the U.S. Supreme Court.)
    Why is this a good thing? Since Citizens United was just decided, isn't it nearly certain that they'll uphold every tenet of it? How does anything done by a lower court facilitate a sudden reversal in brand-new Supreme Court doctrine?

    With every goddess a let down, every idol a bring down, it gets you down / but the search for perfection, your own predilection, goes on and on and on. . .

    by cardinal on Sat Dec 31, 2011 at 10:56:47 AM PST

  •  This is a big win for Steve Bullock (17+ / 0-)

    He's Montana's AG who is now running for Governor against a crew of 9 nutjobs on the GOP side.

  •  The rec star is gone. (4+ / 0-)

    Perhaps the multitude of exclamation points has pushed it into oblivion...?


    Not this mind and not this heart, I won't rot • Mumford & Sons

    by jayden on Sat Dec 31, 2011 at 10:58:15 AM PST

  •  War of the Copper Kings (4+ / 0-)

    I think everyone should read War of the Copper Kings by C.B. Glasscock.  

  •  I find (11+ / 0-)

    This bit very relevant.

    Based upon the history of blatant political corruption that led to the enactment of the prohibition, as well as upon continued corporate influence and control in Montana into the twentieth century, the Supreme Court concluded that the State had and continues to have a compelling interest in curbing the corrupting influence that could arise from large expenditures of corporate money in Montana elections.

    I'm no lawyer but that logic ceems sound to me.

    End the tyranny of the 1%!

    by MasterfullyInept on Sat Dec 31, 2011 at 11:06:35 AM PST

    •  Except that this rationale (4+ / 0-)
      Recommended by:
      Pluto, johnny wurster, varro, VClib

      was rejected as a justification for banning speech by the Supreme Court in CU.  

      •  Indeed. CU is the law of the land. (1+ / 0-)
        Recommended by:
        varro

        On the other hand, I do have a dream of the US breaking up into regions, which I think will be wonderful for the people and much better for the world as a whole. So, perhaps, Montana will lead the way and take a few neighbors with it.


        Most people, when knocked over by the truth, have a tendency to pick themselves up, brush themselves off...and then hurry away like nothing had ever happened.

        by Pluto on Sat Dec 31, 2011 at 12:37:49 PM PST

        [ Parent ]

      •  Yeah (3+ / 0-)
        Recommended by:
        johnny wurster, coffeetalk, VClib

        Folks should read the Nelson dissent.  

        Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.... I cannot agree that [the majority’s] “Montana is unique” rationale is consistent with Citizens United....

        [W]hat has happened here is essentially this: The Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute....

  •  Yes, yes, yes! (0+ / 0-)

    Now how could this work its way up to blow up Citizens United? All it takes is somebody challenging this ruling, that cold force the SCOTUS to revisit, right?

  •  A note of caution: (17+ / 0-)

    SCOTUSBlog has this to say:

    The Montana Supreme Court on Friday put to work its own view of what the Supreme Court had decided in the controversial ruling allowing massive corporate spending in political campaigns, and came out differently: the state court upheld a 99-year-old state ban on the use of corporations’ own money to support or oppose any candidate in state elections.   The 5-2 ruling, including two dissenting opinions, is here.  One of the dissenters predicted that the ruling would not survive an inevitable appeal to the Justices, and might be overturned without even a close look.

    Justice James C. Nelson wrote a 44-page dissenting opinion (more than half again as long as the majority opinion), and used broadsides of bitterness and sarcasm to denounce the Supreme Court’s Citizens United ruling, even while concluding that it settled the First Amendment right of corporations to spend freely on politics, so state judges had no authority whatsoever to fail to apply it faithfully to state bans. He left no doubt that he was holding his nose, figurativtely, as he wrote.  He also left no doubt of his conviction that the Montana ruling would be struck down, probably swiftly, by the Supreme Court in Washington.

    I'm not a lawyer and I know jack shit about campaign finance (and my reading of all this could be off), but it seems like this could potentially be just temporary good news. Obviously I hope it's not just temporary. SCOTUSBlog's analysis seems pretty evenhanded to me.

    Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

    by indiemcemopants on Sat Dec 31, 2011 at 11:14:26 AM PST

    •  Volokh agrees: (12+ / 0-)
      My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

      For people who don't want to read the whole decision, the key points are excerpted there, and worth reading.

      But a state can't just assert an exemption from federal constitutional law based on perceived unique circumstances (which is a good thing, because we'd have half the south trying to get out of civil rights laws, among other things.)  From what I've seen of the decision, they haven't distinguished it in a way that really gets out of the fundamental precept of Citizens United, that indirect political speech isn't easy to regulate.

      It's possible they could split some hairs over the issue of independent expenditures toward ballot initiatives, but even that's a bit of a tough argument after C.U.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sat Dec 31, 2011 at 11:22:55 AM PST

      [ Parent ]

      •  It brings up a lot of (6+ / 0-)
        But a state can't just assert an exemption from federal constitutional law based on perceived unique circumstances (which is a good thing, because we'd have half the south trying to get out of civil rights laws, among other things.)

        uncomfortable thoughts. Right now, in the Prop. 8 case, a state is saying that it can change its constitution's equal protection guarantee to prevent part of the population from marrying. A lot of the argument is that California is already one of the most liberal states and already allows gay people to have every right associated with marriage, and that exception should make it less likely that it's in violation of the US Constitution.

        So, yeah. I do feel awkward.

        Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

        by indiemcemopants on Sat Dec 31, 2011 at 11:27:57 AM PST

        [ Parent ]

        •  The Prop 8 decision was different of course (1+ / 0-)
          Recommended by:
          VClib

          There, the voters followed the state constitution to rewrite our constitution to prevent same-sex marriage.

          That's not a big problem logically. If a super-majority of the Congress and a super-majority of the states want to, we could get rid of the First Amendment.

          Or, for that matter, habeas corpus. Perhaps one day a SCOTUS will remind the other branches that they should stop relying on the judiciary to ignore the constitution, since there is a legal way to amend it.

          •  But it wasn't a rewriting (0+ / 0-)

            it was an amendment (the state supreme court ruled on it and said it's an amendment not a revision.) And the issue is whether a state supreme court (or a state law) can provide less protections under the federal Constitution's Equal Protection Clause, and/or whether they can take rights away simply because of animus toward a minority group.

            The defendant-intervenors argued (in part, obviously) that the state already provides all the rights of marriage, so that exception means there is no violation of the federal Constitution, and that there's not really animus since it's just "the word" marriage.

            Simply put the issue is whether the US Constitution's Equal Protection Clause means that gay people are allowed to marry. If it does then that means California's amendment is not valid.

            The analogy is of course not perfect - in this case it's a state Supreme Court, and in the Prop. 8 case it's a federal court (because the state supreme court already upheld Prop. 8 as a legal amendment to the state constitution, and not an illegally implemented revision.) And there are other issues. But I don't think the analogy is too far off.

            Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

            by indiemcemopants on Sat Dec 31, 2011 at 02:29:24 PM PST

            [ Parent ]

            •  No, that's not quite the issue w Prop 8 (4+ / 0-)

              It's whether taking away marriage equality, once granted, furthered a sufficiently compelling state interest.

              A court can overturn Prop 8 without finding a freestanding national right to marriage equality.

              •  I was thinking they (1+ / 0-)
                Recommended by:
                Seamus D

                were arguing both of those things. At one point they mentioned a freestanding right, and even said that they want strict scrutiny for laws affecting sexual orientation.

                But of course you're right that it's about taking a way an already-existing state constitutional right (since their state supreme court had ruled that same sex marriage is legal before Prop 8 was passed.) And actually your argument is the likelier one to sway the Justices if it actually makes it to the Supreme Court and gets decided on the merits anyway. But I guess one can wish they'd decide for a freestanding right.

                Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

                by indiemcemopants on Sat Dec 31, 2011 at 02:35:55 PM PST

                [ Parent ]

                •  here's the thing (2+ / 0-)
                  Recommended by:
                  indiemcemopants, eglantine

                  I don't know that there are five votes for the freestanding right from the current Supremes, but I think there may be 6 for the narrower ruling (given Romer).  

                  •  Do you think that (0+ / 0-)

                    it'll even be heard on the merits? The standing issue seems to be a very easy way for them to avoid the question (and after the upcoming health care decision and the one on the Texas maps and the Arizona law, I don't feel very good they'd be willing to take up yet another 'controversial' issue.)

                    Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

                    by indiemcemopants on Sat Dec 31, 2011 at 02:41:05 PM PST

                    [ Parent ]

                    •  No. (2+ / 0-)
                      Recommended by:
                      indiemcemopants, VClib

                      Given that the California Supremes said they have standing, given its unanimous interpretation of CA law, they've got standing.

                      •  They didn't decide Article III standing. (0+ / 0-)

                        In fact, they specifically left open the question of whether the defendant/intervenors have suffered the kind of "particularized" injury they'd need to satisfy Article III standing.  So I don't think the California Supreme Court's decision conclusively establishes their standing under the federal constitution.

                        Do you disagree?

                        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                        by FogCityJohn on Sat Dec 31, 2011 at 06:10:34 PM PST

                        [ Parent ]

                        •  I disagree, as do the parties & the 9th Cir (2+ / 0-)
                          Recommended by:
                          VClib, FogCityJohn

                          From the original 9th Cir order seeking an answer to the certified question:

                          The parties agree that “Proponents’ standing” – and therefore our ability to decide this appeal – “‘rises or falls’ on whether California law” affords them the interest or authority described in the previous section. Proponents’ Reply Br. at 8 (quoting Plaintiffs’ Br. 30–31).  It is not sufficiently clear to us, however, whether California law does so.  In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law....

                          If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State.

      •  Even if the US Sct does overturn (4+ / 0-)
        Recommended by:
        indiemcemopants, pico, TofG, Seamus D

        it still weighs in the balance of legislation/Constitutional amendment/future court decisions.  

        I believe CU was a 5-4 decision, so is weak precedent for future Congresses, conventions and courts.

        Greed's self-regulation is collapse. So is delusion's.

        by Publius2008 on Sat Dec 31, 2011 at 11:33:03 AM PST

        [ Parent ]

        •  True enough. The biggest problem with (2+ / 0-)
          Recommended by:
          indiemcemopants, Seamus D

          C.U. is that it was so broadly decided that it gives no room for Congress or the states to keep trying to find a good balance between the desire to regulate indirect political speech and the First Amendment's protections: SCOTUS basically said it's so difficult to do that no one can do it, the end.  That's a heck of a hole to dig oneself back out of.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Sat Dec 31, 2011 at 11:39:06 AM PST

          [ Parent ]

        •  IIRC regarding (3+ / 0-)
          Recommended by:
          pico, eglantine, Seamus D

          Citizens United, they had pretty much signaled that they were going to rule that way from early on in the case because of the fact that they wanted to rehear oral arguments on an issue that only vaguely touched on the original case.

          And then when they finally had an oral argument, the SG said that the government under the campaign finance law could potentially ban a book. Seriously. (Then when Kagan became SG, and her first oral argument was for that case, she admitted that the government's position had changed on the book ban issue and that it would not be allowed.)

          Or in other words, it seems like the conservatives were just on a mission from the outset. I have no idea if their mission could be overturned when we have 5 or 6 votes, but the fact is that it's less of a good constitutional law than it is just a part of the conservative agenda.

          That said though, this specific case isn't a good vehicle for overturning CU anyway.

          Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

          by indiemcemopants on Sat Dec 31, 2011 at 11:40:04 AM PST

          [ Parent ]

      •  state vs federal elections? (1+ / 0-)
        Recommended by:
        IreGyre

        I'm hoping it might stand because it didn't dispute "Citizens United" on federal elections but upheld Montana law on state elections.

        America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

        by cacamp on Sat Dec 31, 2011 at 11:35:44 AM PST

        [ Parent ]

      •  This is not a situation of a (3+ / 0-)
        Recommended by:
        pico, J M F, IreGyre
        state can't just assert an exemption from federal constitutional law based on perceived unique circumstances

        This is a question of whether Citizens United held that the 1st Amendment provides a per se (absolute) protection to corporations or whether there can be restrictions if they are supported by a compelling state interest. That, by the way, is standard 1st Amendment analysis.

        The MT court say that CI allows for laws to be upheld if they are supported by a compelling state interest. ("State" means government.) The Supreme Court will have to reiterate that position because it has never held that any Constitutional right is absolute. But then the question will be how high, in practice not just verbiage, the standard is.

        Further, affiant sayeth not.

        by Gary Norton on Sat Dec 31, 2011 at 11:38:06 AM PST

        [ Parent ]

        •  Right, but SCOTUS didn't just set the bar high (2+ / 0-)
          Recommended by:
          coffeetalk, VClib

          on the possibility of compelling state interest, they more or less eliminated it by saying it wasn't possible to regulate indirect political speech under the First Amendment.  Montana's trying to argue that its circumstances are unique, but those specifics don't seem to contradict or complicate SCOTUS' holding at all: the fundamental constitutional issue is still intact.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Sat Dec 31, 2011 at 11:46:40 AM PST

          [ Parent ]

        •  question from a non-lawyer: (2+ / 0-)
          Recommended by:
          anninla, Gary Norton

          one sentence that caught my eye in the opinion was

          The Court explains that Montana has a small population and enjoys political campaigns
          marked by person-to-person contact and a low cost of advertising compared to other
          states. Opinion, ¶ 30.

          Might that lead the SC to a decision where small states have greater protection from corporate money than large ones, just as the Voting Rights Act protects minority-majority districts only in certain states that were found to have been in egregious violation of voting laws? So that states like IA, MT, or NH could have protection, but not CA, NY, or TX?

          "The only thing we have to fear is fear itself."........ "The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." (yeah, same guy.)

          by sidnora on Sat Dec 31, 2011 at 11:56:38 AM PST

          [ Parent ]

      •  If they do that, then we OCCUPY. (0+ / 0-)
        and will reverse the Montana Supreme Court’s decision.

        This time we can let them know in advance, and give them an opportunity to back down gracefully.

        "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

        by ehrenfeucht games on Sat Dec 31, 2011 at 12:14:27 PM PST

        [ Parent ]

        •  Occupy what? (5+ / 0-)
          Recommended by:
          Adam B, mmacdDE, quiet in NC, VClib, pico

          Justices Roberts, Alito, Scalia, and Thomas are not going to be swayed by what Occupy thinks or says.  

          Justice Kennedy WROTE the CU decision, so he's not changing his mind.  

          The SCOTUS is set up so that the Justices do not answer to the views of the people directly.  If they did, Brown v. Board of Education (which was opposed by a majority of the citizens of this country at the time) would never have been decided.  

          A protest like Occupy can influence the legislative and executive branches.  The courts are not supposed to be influenced by  protests.  

    •  True. This is symbolic so long as the SCOTUS (2+ / 0-)
      Recommended by:
      indiemcemopants, h bridges

      majority are corporate servants who accept the false precedence based on the false non-ruling on corporate personhood in Santa Clara County VS. Southern Pacific Railroad.

      Until we have a SCOTUS majority that is willing to expose and demolish 150 years of bullshit corporate claims to rights never intended as such, we won't see these lower court rulings stand.

      The rich are eating the world. The Republicans are their teeth. The Democrats are dentists who refuse to pull those teeth because they are so beautiful and sharp.

      by Leftcandid on Sat Dec 31, 2011 at 12:48:13 PM PST

      [ Parent ]

      •  What I don't like is (1+ / 0-)
        Recommended by:
        Leftcandid

        that we've had liberal majorities on SCOTUS at different points since 1886. Even a lot of the Warren Court cases that involved rights of corporations didn't go against the idea that corporations have the same rights as people.

        Read my stuff at burn after writing and The Huffington Post @indiemcemopants on Twitter

        by indiemcemopants on Sat Dec 31, 2011 at 01:00:41 PM PST

        [ Parent ]

        •  Dunno what to say except that those frogs were (0+ / 0-)

          being slowly heated.  Wearing SCOTUS robes is on its own apparently no defense.

          The rich are eating the world. The Republicans are their teeth. The Democrats are dentists who refuse to pull those teeth because they are so beautiful and sharp.

          by Leftcandid on Sat Dec 31, 2011 at 03:05:16 PM PST

          [ Parent ]

        •  indiem - corporations don't have the same rights (0+ / 0-)

          Corporations don't have the same rights as people. Unfortunately that phrase has developed into an echo chamber here, spreading misinformation. There are many examples of the differences between the rights of "natural persons" and corporations, the Tillman Act of 1907 being just one.

          "let's talk about that"

          by VClib on Sat Dec 31, 2011 at 06:18:25 PM PST

          [ Parent ]

      •  The Nelson dissent says something on this (10+ / 0-)
        Lastly, I am  compelled to say something about corporate “personhood.”  While I recognize that this doctrine is firmly entrenched in the law, see Bellotti, 435 U.S. at 780 n. 15, 98 S. Ct. at 1418 n. 15; but see 435 U.S. at 822, 98 S. Ct. at 1439-40 (Rehnquist, J., dissenting), I find the  entire  concept offensive.   Corporations  are  artificial  creatures of law.   As  such,  they  should  enjoy  only  those  powers—not  constitutional  rights,  but legislatively-conferred powers—that are concomitant with their legitimate function, that being  limited-liability  investment  vehicles  for  business.   Corporations  are  not persons.  Human beings are persons, and it is an affront to the inviolable dignity of our species that courts  have  created  a  legal  fiction  which  forces  people—human  beings—to  share fundamental,  natural  rights  with soulless  creations  of  government.   Worse  still,  while corporations and human beings share many of the same rights under the law, they clearly are  not bound  equally  to the same  codes  of  good  conduct,  decency,  and  morality,  and they  are  not held  equally  accountable for  their sins.   Indeed,  it  is  truly  ironic  that  the death penalty and hell are reserved only to natural persons
        •  A-freakin'-men! (1+ / 0-)
          Recommended by:
          eglantine

          Thanks for this.

          The rich are eating the world. The Republicans are their teeth. The Democrats are dentists who refuse to pull those teeth because they are so beautiful and sharp.

          by Leftcandid on Sat Dec 31, 2011 at 03:09:59 PM PST

          [ Parent ]

        •  If media explained this to citizen-viewers (0+ / 0-)

          in terms like this there would be an almost spontaneous constitutional amendment tidal wave banishing corporate personhood  would ensue and it would be enacted in record time... A wave so big it would first achieve a super majority in congress and the state legislatures to make it so... heh... and do that over the bags of corporate money that stands in the way... and all the pet politicians who know who the bosses are... Would enough people actually see the light?

          If for some reason people woke up on just this on top of the OWS mood it would ignite a firestorm... people already do not like the idea but really have not connected all the dots and stepped back and saw the big picture of how we got here... revolutions in whatever form they take are usually a surprise when they happen... a social phase change that was inevitable but not predicted to happen when they did.

          But of course our corporate media is not ever going to really "out" this comprehensively in the reality TV / terror /gossip mix that is mass media today.  Or at all beyond a few mentions when it is too obvious to ignore completely. OWS was ignored until it was no longer ignorable... and that process may continue.

          So we have to hope that negating CU it is a matter of time and social evolution. As the internet generation comes of age and old-style grabbit and trashit corporations make themselves redundant as they become more ossified and irrelevant relying on past formulas for dominance... assuming they are not able to lull and pay off enough people as they usually do. And dinosaurs evolve or go extinct; what used to work will become less and less effective and large wealthy groups of like minded people become an echo chamber of old dog methods and lose much their power to control... for a while at least.

          New lies and cons will need to be "innovated" and sold to the citizen-audience. So like always in any relationship of the rulers and the governed,  it is an information and control arms race between ordinary people and the powers that be. And these powers have always constituted  middle men economic vampires that demand and get more than the value they add and keep changing the rules to control more of the rewards mechanism to suit themselves even at the eventual cost of their own power after crippling the lives of their prey.  It is as always their tool set versus the curtailed power of the citizen consumer and the power of information. In other words how sheeplike and powerless the majority can be kept and for how long. Only the form and technology of it plus the mythology they use to justify it changes from era to era interrupted by revolt and re-balancing phases.

          The corporate control apparatus is well on its way to milking and controlling the internet in ways that will keep themselves entrenched, but to really succeed like they did with the old paradigms...they will have to find ways to block, redirect, neutralize or pervert the inherent strengths of the new democracy of the net...
          And much of that will be how well they can extract monopolistic wealth from it to ensure their goals at the same time as they veil their control. Doing both effectively is not always successful but it is the key to whether they will get CU or less blatant replacements to keep working for them  regardless of whether it is overturned or not. But it will be harder for them; the net is too plural... even in China Govt. control is not as complete as they would like... and may never be.

          So in the end "we the people"" may just trump We the corporations" in the expanding awareness war...

          Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

          by IreGyre on Sun Jan 01, 2012 at 07:26:12 AM PST

          [ Parent ]

  •  Very big news and very good news ! (7+ / 0-)

    Montana !  I like the part of it being a legal entity created.  How could that get knocked down anywhere?
    Two corporations do not have sex and create another corporation no matter how bad Scalia and Thomas think that screwing the little people creates corporations equal to human.

    We the People have to make a difference and the Change.....Just do it ! Be part of helping us build a veteran community online. United Veterans of America

    by Vetwife on Sat Dec 31, 2011 at 11:14:31 AM PST

  •  Now let's amend the U.S. Constitution! (6+ / 0-)
    The language is already written.
    And no one can call Montana a Liberal state ...

    "The Internet is the Public Square of the 21st Century"- Sen. Al Franken

    by Kdoug on Sat Dec 31, 2011 at 11:20:15 AM PST

  •  YES!!!!!! Hallelujah ! (3+ / 0-)
    Recommended by:
    Alice Olson, aunt blabby, Matt Z

    and le troubador, it has been such an honor to get to know you this past year. Look forward to collaborating on the work ahead.

    You are such an inspiration!

  •  The Court deals with Citizen's United by saying (5+ / 0-)

    that CI does not impose and absolute prohibition on regulation of corporate contributions. It reads CI to only prohibit restrictions that are not justified by a compelling state interest (which is typical 1st Amendment analysis.)The MT Court explains why the MT law meets that test.

    There are two dissenting justices. Both say that CI establishes basically an absolute prohibition against laws restricting corporate contributions and to the extent the majority argues that the MT law is supported by a compelling state interest, similar arguments were rejected in the CI case.

    This case will definitely give the Supreme Court an opportunity to revisit an hopefully restrain the effects of CI. Reversal is highly improbable, (though it is time to relegate CI to the ash bin of Supreme Court mistakes.)

    Further, affiant sayeth not.

    by Gary Norton on Sat Dec 31, 2011 at 11:27:49 AM PST

    •  I agree (2+ / 0-)
      Recommended by:
      Gary Norton, Cintimcmomma

      If ever there could be a case that illustrates the compelling interest of the state to restrict corporate contributions, this one will be an excellent test case.

      WESTERN TRADITION PARTNERSHIP, INC. reveals very little about themselves other than that they are a "foreign corporation." That, in itself, is troubling.

      CHAMPION PAINTING, INC. is a sole proprietor with no employees or other shareholders than the owner.

      MONTANA SHOOTING SPORTS ASSOCIATION, INC. made claims related to the state law that are not supported by facts.

      Others have simply gotten old. I prefer to think I've been tempered by time.

      by Just Bob on Sat Dec 31, 2011 at 01:46:18 PM PST

      [ Parent ]

    •  Gary is it corp contributions or independent (4+ / 0-)

      expenditures? The Tillman Act of 1907 prohibits corporations for making ANY contributions to the campaigns of candidates for federal office and Citizens United didn't impact that at all. Is the Montana case about campaign contributions or independent expenditures? CU didn't impact limits on restricting actual candidate campaign funds.

      "let's talk about that"

      by VClib on Sat Dec 31, 2011 at 06:22:31 PM PST

      [ Parent ]

      •  The MT case deals only with corporate (0+ / 0-)

        contributions.

        Further, affiant sayeth not.

        by Gary Norton on Sat Dec 31, 2011 at 07:59:36 PM PST

        [ Parent ]

        •  Gary I haven't yet read the decision yet (1+ / 0-)
          Recommended by:
          Gary Norton

          but Adam has a comment noting that it deals only with independent expenditures. I'll read the decision, but given that CU didn't impact federal law prohibiting corporate campaign contributions it would be hard to imagine that the Montana trial court would have applied CU to prohibitions of actual contributions to candidate campaign funds. You might want to look deeper.

          "let's talk about that"

          by VClib on Sat Dec 31, 2011 at 08:36:56 PM PST

          [ Parent ]

          •  This case deals with corporate contributions to (0+ / 0-)

            candidates or committees in State elections. It does not deal with Federal elections. The issue was whether CU, which applies to Federal elections, would also apply to MT state elections. The MT decision explains why it does not.

            Further, affiant sayeth not.

            by Gary Norton on Sun Jan 01, 2012 at 08:56:27 AM PST

            [ Parent ]

            •  Gary CU was NOT about campaign contributions (2+ / 0-)
              Recommended by:
              AaronInSanDiego, Gary Norton

              On a federal level corporate contributions to the campaigns of candidates for federal office are illegal. Corporations cannot contribute a single dollar. The Tillman Act prohibits corporations from making campaign contributions for federal office and this issue was not part of the Citizens United litigation or SCOTUS decision.

              CU was ONLY about independent expenditures, which can be in support of candidates or ballot measures, so it would be hard to see how any court would hold that CU would ever apply to the actual campaign funds of candidates for state and local office in Montana. I understand the the Montana Supreme Court has decided that CU does not apply to state and local elections in Montana, but I think the CU reference relates only to independent expenditures because that is all CU is about. Many states have laws barring corporate contributions (and interestingly some states allow direct corporate contributions to candidates)  to local and state politicians but that was never challenged under CU.

              I think you are misreading the decision.

              "let's talk about that"

              by VClib on Sun Jan 01, 2012 at 10:46:22 AM PST

              [ Parent ]

              •  I understand that CU was about independent (0+ / 0-)

                expenditures. That distinction is not what the MT court was dealing with. The MT court is of the opinion, both majority and minority, that CU would invalidate MT's law on corporate contributions to campaigns or committees unless an exception exists. They understand that CU involved Federal law, Federal elections, and independent expenditures. But the plaintiffs argued and the majority accepted that CU would invalidate MT's law unless CU allows an exception for a compelling state interest and finds such interest. The minority opinions also accept the applicability of CU and say there is no exception or that the standard is not met.

                Under your reasoning, the entire MT decision and all three opinions are irrelevant. They should have ignored CU because it was inapposite. I hear you but I think you'll find that the SC does not share your view. They will grant cert and will opine on the whether the 1st amendment ruling in CU applies to state elections, whether it applies to contributions to candidates and committees, whether the 1st Amendment  protection is absolute, and if not how compelling a state interest must be.

                Further, affiant sayeth not.

                by Gary Norton on Mon Jan 02, 2012 at 08:35:06 AM PST

                [ Parent ]

                •  Gary - from the MSC opinion (1+ / 0-)
                  Recommended by:
                  Gary Norton

                  Decision, p7:

                      The District  Court specifically did not address whether § 13-35-227, MCA, violated the Montana Constitution, and further noted that the decision had “no effect on direct corporate contributions to candidates or to any existing or future disclosure laws that might be enacted.”  Those aspects of Montana law are therefore not at issue in this case.  

                  "let's talk about that"

                  by VClib on Mon Jan 02, 2012 at 08:53:31 AM PST

                  [ Parent ]

                  •  Yes, My language was loose, in part because (0+ / 0-)

                    that is not the point of the discussion. This case does not involve contributions to candidates because they were not at issue, but the statute does prohibit contributions to candidate.

                    Section 13-35-227, MCA, was originally enacted as an initiative by the Montana voters in 1912. It provides:
                    (1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.
                    (2) A person, candidate or political committee may not accept or receive a corporate contribution described in subsection

                    I did not focus on this because it was not an issue, but it will eventually be an issue.

                    But you are wrong about the applicability of CU. That is all this case is about. All I was trying to do was summarize the holding and rationale and suggest what will be at issue in the SC using my words but not very successfully. So I will use the words of the court. The MT court is fully aware that the CU decision is only the first of a string of decisions to come where it's full breadth and scope will be revealed.

                    Here the court summarizes the trial court's decision,

                    Upon the plaintiffs’ motion for summary judgment, the District Court considered whether § 13-35-227(1), MCA, violates the First Amendment to the United States Constitution to the extent that it restricts WTP, MSSA or Champion from making independent corporate expenditures on behalf of candidates.1    The District Court applied Citizens United v. F.E.C., 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) and determined that § 13-35-227(1), MCA, impacts the corporations’ political speech protected by the United States Constitution. The District Court then considered whether the State had demonstrated a compelling interest for the restriction on speech, and whether the restriction is narrowly tailored to achieve that interest. While it answered both questions in the negative, the District Court did not conduct a detailed analysis of the compelling interest question. Instead, it concluded that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.” (Quoting Minn. Chamber of Comm. v. Gaertner, 710 F. Supp. 2d 868 (D. Minn.

                    So the MT Supreme Court said that not only did the lower court hold the MT law violates the 1st Amendment as interpreted by the CU court, but that there is an absolute prohibition. with no exceptions.

                    The MT court then explains its analysis of CU, first saying,

                    The District Court erroneously construed and applied the Citizens United case.

                    It then explains why CU was erroneously constructed i.e., that there is no per se violation and secondly how the "compelling state interest" standard should be applied.

                    A premise of Citizens United was that First Amendment protections extend to corporations. Citizens United, 130 S. Ct. at 899. The Court additionally determined that the option for a corporation to spend through a separate PAC was not a sufficient alternative because of the burdensome, extensive, and expensive Federal regulations that applied. The Federal law allowed corporations to form a separate segregated fund (sometimes called a political action committee or PAC) as long as the funds were limited to donations from stockholders or, in the case of unions, its members. The Court found the regulations governing the organization of PACs to be “onerous” restrictions that might not allow a corporation to establish a PAC in time to make its views known in a current campaign. Citizens United, 130 S. Ct. at 898. Therefore, because the Federal laws and regulations severely restricted speech, their constitutionality could be maintained only upon a showing that they further a compelling governmental interest and are narrowly tailored to achieve that interest. Citizens United, 130 S. Ct. at 898.

                    The Court found that the Government did not claim that corporate expenditures had actually corrupted the political process and concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Citizens United, 130 S. Ct. at 909. However, if elected officials do succumb to improper influences from independent expenditures, “then surely there is cause for concern.” Citizens United, 130 S. Ct. at 911.

                    The Court determined that the government had not provided a compelling interest to justify the speech restrictions at issue. The Court considered and rejected arguments that preventing the distorting effect of large expenditures; preventing corruption or the appearance of corruption; or protection of dissenting shareholders were sufficient interests to support the Federal restrictions. Therefore, finding no compelling interest for the Federal restrictions on corporate political speech through independent expenditures, the Court found an impermissible contravention of the First Amendment. Citizens United, 130 S. Ct. at 911.

                    While Citizens United was decided under its facts or lack of facts, it applied the long-standing rule that restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest. Citizens United, 130 S. Ct. at 898; Federal Election Comm. v. Mass. Citizens for Life, Inc., 479 U.S. 238, 251- 52, 107 S. Ct. 616, 624 (1986); Bluman v. Federal Election Commission, 2011 U.S. Dist. LEXIS 86971 (D. D.C. 2011) (upholding Federal ban against campaign contributions by foreign citizens). The Supreme Court in Citizens United applied the highest level of scrutiny to the restrictions at issue there, requiring the government to demonstrate a compelling interest, although the level of evidence needed to satisfy heightened scrutiny will vary with the “novelty and plausibility of the justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, 120 S. Ct. 897, 906 (2000). Therefore, the factual record before a court is critical to determining the validity of a governmental provision restricting speech.

                    The Majority then castigates the dissent for adopting the per se rule,

                    The Dissents assert that Citizens United holds unequivocally that no sufficient government interest justifies limits on political speech. We disagree. The Supreme Court held that laws that burden political speech are subject
                    to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest. The Court, citing Wisconsin Right to Life v. FEC, 551 U.S. 449, 464, 127 S. Ct. 2652, 2663-64 (2007), clearly endorsed an analysis of restrictions on speech, placing the burden upon the government to establish a compelling interest. Citizens United, 130 S. Ct. at 898.    Here the government met that burden.

                    There's much detail of MT history and why the compelling state interest standard is met, concluding with

                    Conclusion - Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions.

                    That's all  I was trying to say. Cases are decided on their facts but their holdings and analysis are then applied to different facts. When this gets to the SC, the SC will apply the CU rationale to the MT facts. Hopefully it will agree with the MT SC that there is no per se 1st amendment violation and that states should be given latitude in interpreting their laws and determining whether a compelling state interest exists. Hope springs eternal that it will go even further in limiting CU.

                    Further, affiant sayeth not.

                    by Gary Norton on Mon Jan 02, 2012 at 12:19:11 PM PST

                    [ Parent ]

  •  Tipped and rec'd (0+ / 0-)

    If for no reason than author's note #2! But other than that, encouraging news. Hoping "Justice" Kennedy will have had a change of heart if it gets back to the US Supremes.

  •  one more reason to vote democratic (6+ / 0-)

    in 2012 - it IS the supreme court.  period!

    AND, we can only hope that the majority shifts back to sanity in the next four years - that thomas decided (or has it decided for him) that it is just too much trouble to sit there and be bored every day the court is in session (and having to hide all that money he makes from sitting there is also too much a bother).

    Is GlowNZ back yet?

    by edrie on Sat Dec 31, 2011 at 11:44:41 AM PST

  •  W00t!!! THank you! nt (0+ / 0-)

    BTW, did I say "W00t"?  OK, just checkin'...

    Thank you!!!!!!

    Kick apart the structures - Seth

    by ceebee7 on Sat Dec 31, 2011 at 11:45:20 AM PST

  •  Cannot see any way this stands (12+ / 0-)

    I've looked at the decision and they basically say that they can ignore the CU decision if they find that there is a "compelling reason" for banning speech -- even though the SCOTUS has already held that the reason they cite is not sufficient to ban speech.   The opinion is directly in conflict with the holding of CU that an outright ban on corporate speech violates the First Amendment of the United States Constitution.   Because the SCOTUS has long held that the First Amendment applies to states as well, the notion that it applies to state and local elections is irrelevant.  

    The dissent makes it pretty clear that this decision is in direct conflict with CU:

    As a result, the critical question presented in the case now before us is simply this:   Has the State of Montana identified  a  compelling state interest, not  already rejected by the  Supreme  Court,  that  would  justify  the  outright  ban  on  corporate  expenditures  for
    political  speech  effected  by  § 13-35-227(1),  MCA?   Having  considered  the  matter,  I believe the Montana Attorney General has identified some  very  compelling reasons for limiting corporate expenditures in Montana’s political process.  The problem, however, is  that regardless of how persuasive I  may think the Attorney General’s justifications  are, the Supreme Court has  already rebuffed  each  and  every one of them.   Accordingly,  as much as I would like to rule in favor of the State, I cannot in good faith do so.

    Essentially the Montana Supreme Court said to the SCOTUS, well, you may not have found these reasons compelling, but we disagree with you, so we're going to decide that we are not bound by CU.  

    I would not be surprised, frankly, if this is summarily reversed -- writ granted, and reversed without oral argument or further briefing.  The SCOTUS (not just this group of justices, but the SCOTUS throughout history) really gets its back up when there is direct defiance of their rulings.  Even justices who dissented in the original opinion are likely to get their back up over such a direct defiance.  All the justices know that the one thing that must remain constant is that SCOTUS decisions as to the meaning of the Constitution must be followed by the other courts unless and until the decisions are overruled or the Constitution is amended.  Even the dissenting justices in CU are going to be really put off by this decision for that reason alone.  

    I suspect the SCOTUS is not going to see this as an "opportunity to re-examine CU" as some hope.  They know that the decision would not come out any differently, as the five justices in the majority are still on the Court.  Instead, I think even the four liberal justices are going to think it's important to make clear to the Montana Supreme Court that they, like all other courts in this country, are bound by SCOTUS decisions.  

    •  Exactly... (4+ / 0-)
      Recommended by:
      Pluto, coffeetalk, Matt Z, VClib

      This would be like the state supreme court in Alabama, in the mid '50s, saying we are not going to follow BROWN.  

      State Supreme Courts cannot ignore the law.  If those Montana Justices ignore the CU ruling which other ones, that maybe many people on this location like, will they decide not to follow?

  •  Most corporations are chartered by states. (1+ / 0-)
    Recommended by:
    Alice Olson

    It was inappropriate for the Congress to step in, ex post fact, and try to apply limitations.  But then, instead of restricting itself and potential members, the Congress always tries to restrict other parties.

    The Congress is a bevy of petty potentates trying to hold on to powers to which they are not entitled as long as possible.

    When the people govern, the only entity that loses clout is the body that's been presuming to rule in their name.

    The Congress has been insubordinate.  Time it be brought to a halt.

    People to Wall Street: "LET OUR MONEY GO"

    by hannah on Sat Dec 31, 2011 at 11:53:05 AM PST

  •  Now if Kennedy just retires and is replaced by, (2+ / 0-)
    Recommended by:
    Alice Olson, catwho

    say, a wise latina, then perhaps Citizens United could be overturned.

    Also, I believe it has been said Kennedy was talked into supprting the CU decision by Scalia by arguments it wouldn't be all that much a change. Given what has happened, is it impossible to see Kennedy switching?

  •  Go Montana!!! (nt) (1+ / 0-)
    Recommended by:
    TofG

    "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

    by ehrenfeucht games on Sat Dec 31, 2011 at 12:06:42 PM PST

  •  Obama almost won Montana (2+ / 0-)
    Recommended by:
    TofG, Publius Cornelius Tacitus

    I would love to see a Democrat win electoral college votes there.  Small number of electors, but a huge symbolic victory.

    2008 results: Obama 231,000; McCain 242,000.  Only 2.4% away.

  •  If this goes to the Supreme Court, the key (1+ / 0-)
    Recommended by:
    TofG

    argument might be "history of blatant political corruption".  Citizens United ought by then to show that it produces blatant political corruption.  I doubt it would necessarily be a winning argument before this Court but it would be interesting to see how the Gang of Five tapdances around it.  

    We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

    by Observerinvancouver on Sat Dec 31, 2011 at 12:16:22 PM PST

    •  CU already addressed this (4+ / 0-)

      From the syllabus of CU:

      (2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co. , 556 U. S. _, distinguished. Pp. 40–45.

      Essentially, that the fear that there may be corruption is not a sufficient reason to ban speech under the First Amendment.

      So, this decision hinges on a rationale that was addressed, and rejected, by the SCOTUS in CU.  

  •  Opinion means nothing! (2+ / 0-)
    Recommended by:
    Pluto, VClib

    No state Supreme Court can overrule US law!  Either the US Supreme Court will take this case or more likely an action in US District Court will be commenced, by other parties, and this case made moot.

    Federal free speech law, whether we like it or not, applies in both federal and state election law.

  •  What surprises me most about the suicide-murder (2+ / 0-)
    Recommended by:
    goodpractice, BeeDeeS

    ...of the Federal Government (of, by, and for the people) aided by the corrupt, corporately-owned Supreme Court -- is that the  American Colonists were permanently enslaved by this decision and their futures destroyed -- and there was nary a whimper from most of them.

    Perhaps they truly do deserve their fate. After all, it is a widely known law of physics what the outcome would be. Even Einstein described what would happen to the poor Colonists should a decision like Citizens United be made:

    [Because the US constitution allows] private capital to become concentrated in fewer hands.... an oligarchy of private capital forms -- the enormous power of which cannot be effectively checked even by a democratically organized political society. This is true because the members of legislative bodies are selected by political parties, which are largely financed... by private capitalists.

    For all practical purposes, the electorate is entirely separated from the legislature. As a consequence, the representatives of the people do not sufficiently protect [their] interests....

    Moreover, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult -- and indeed in most cases quite impossible -- for the individual citizen to come to objective conclusions and to make intelligent use of his political rights.

    The question is -- since this is an established law of physics -- should we have any sympathy for the Colonists and their dismal future?

    Fully half of them vote for their own destruction in each national election. And they are gravely injured under their choices each time. George Bush, case in point.

    Isn't it time to let them have their destiny? Is there a people more deserving, who do plague the world with increasingly more destruction?

    A people who are obdurately ignorant and will not help themselves?

    When do you finally give up on them?


    Most people, when knocked over by the truth, have a tendency to pick themselves up, brush themselves off...and then hurry away like nothing had ever happened.

    by Pluto on Sat Dec 31, 2011 at 12:33:19 PM PST

    •  Never. (1+ / 0-)
      Recommended by:
      Pluto

      Never on all of them. I only give up on all of us (all humans) if you want this broad brush.

      It is enraging, true, to have to watch how "they" rather take down the world in flames than to break out of their collective suicidal insanity. But would you give up on the writer of that diary? I won´t. One can not give up on humanity (not even on its american incarnation), without giving up on oneself. Either we all are contemptuous worms, or there are some of us worth hanging on to everywhere.

    •  It is impossible to be too outraged, too snarky (1+ / 0-)
      Recommended by:
      Pluto

      too ironic or sarcastic or scathing in showing contempt and distaste for this process and the troubles deepening for us all.   The idea that America would have a permanent underclass, of persons without rights existed for hundreds of years before the Civil War interrupted it.

      Now this SCOTUS, this legislative circus in DC wants to enshrine a new form of slavery as pernicious and as horrible as the old one but with the benefit the slaves are truly partners since they have a faith in this government as if it belonged to them and was working in their interests.

      It is the abysmal ignorance and the lack of any comparable self interest organization that keeps the mental chains on our fellow Americans.  Until we learn some creative skills in coping and parrying the lies and distortions of history and Cui bono? we cannot reverse any of this, we will keep being drowned by these kinds of decisions and legal permissions to rip us from any freedom of action, our autonomy and initiative to be anything but passive wage slaves.

      If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever.... well, you will be run off in 20 minutes., you will leave town having wasted your effort 6/18/11.

      by BeeDeeS on Sat Dec 31, 2011 at 05:44:14 PM PST

      [ Parent ]

  •  Tipped and Rec'd. Just wonder why.... (1+ / 0-)
    Recommended by:
    joe wobblie

     ....other more traditionally Democratic States have not already done this.   Maybe they have?   Anyhoo, horraay Montana!

  •  Scotusblog and a better link to the ruling (2+ / 0-)
    Recommended by:
    BeeDeeS, IreGyre

    http://www.scotusblog.com/...

    The McGrath opinion provided a vivid chronicle of the days in Montana’s past when the so-called “Copper Kings” bought and sold politicians and judges in the way that other people buy and sell consumer goods (a comparison that the majority attributed to Mark Twain).  It noted that the states’ voters had had enough of that corruption, so they used their newly acquired initiative power in 1912 to pass the ban on corporate political spending.

    “When in the last 99 years,” the Chief Justice asked, “did Montana lose the power or interest sufficient to support the statute, if it ever did?”   Even if the ban on corporate financing of campaign activity had in fact “preserved a degree of political and social autonomy,” the opinion said, that was no reason to “throw away its protections.”  A state, McGrath wrote, would not repeal its murder prohibition just because the homicide rate went down.

    Your links still don't work for me, but here's an alternative:
    http://sblog.s3.amazonaws.com/...

    Others have simply gotten old. I prefer to think I've been tempered by time.

    by Just Bob on Sat Dec 31, 2011 at 01:50:11 PM PST

  •  We The People (1+ / 0-)
    Recommended by:
    Situational Lefty

    What so damn hard to get about that?
    I know, $$$$$$$$$$

  •  good news...however...wait until Scalia (1+ / 0-)
    Recommended by:
    TofG

    and Thomas and Alito and Kennedy and Roberts get wind of this...you will see one of the most activist bunch of owned-bought-and-paid-for shills for the filthy rich overturn this decision in a heartbeat. Based on the blatantly corrupt and dishonest intervention by the court in the Gore v Bush recount (you know...where they basically told the whole country that "we don't need no stinkin' recount), it wouldnt' surprise me if they pushed all other business aside in order to...do the bidding of their corporate overlords who those Supreme Court Injustices have accepted bribes from.

      •  Ginnie? (1+ / 0-)
        Recommended by:
        IreGyre

        No pillow and bank account talk?

        Me thinks there is.

        •  It's called ... (4+ / 0-)
          Recommended by:
          coffeetalk, johnny wurster, VClib, pico

          ... a professional woman with significant Hill experience having a job.

          •  That's (1+ / 0-)
            Recommended by:
            IreGyre

            one way of looking at it.

            Wonder why if that's what it really is Clarence didn't declare her income. Hmmmm?

            •  I don't know why he didn't list that source (2+ / 0-)
              Recommended by:
              coffeetalk, VClib

              It was certainly well-known and discussed in the press.

              •  Because (0+ / 0-)

                it wasn't so up and up.

                Face up to it already, this government at the top is bought and paid for—all 3 branches.

                  •  Everything (0+ / 0-)

                    they do, honey, it's for the criminal elite.

                    •  So ... (3+ / 0-)
                      Recommended by:
                      coffeetalk, VClib, pico

                      ... no one can be authentically conservative without being bribed?

                      •  if by "Authentically Conservative" one means (1+ / 0-)
                        Recommended by:
                        Crazy like a fox

                        a couple of SC justices going to closed conventions of corporate sponsored think tank type events... and even being keynote speakers at what are thinly veiled partisan political cabals discussions... and keeping a pretense of being impartial... but it is not limited to things like this.

                        So yes of course they are "authentically conservative" in that they do not bother with much pretense of impartiality or lack of ties to very focused powerful interests who self describe as "conservative"...

                        And as far at the word "bribed", it is a narrowly defined term... there are many other inducements and persuasion tactics far beyond a bag of money that do the same thing... not the least of which is grooming young replacements in relatively new right-wing law-schools established for the specific purpose of replacing as many of the judges, federal attorneys, state and local legal establishment with compliant like minded people in a decades long campaign... the "bribe" is the entire career  of the chosen ones... from being accepted in the law school and anything else after that greased the skids to ensure a large cohort of "acceptable" candidates  from which to advance the most promising semi-pawns into the highest positions... a mapped out lucrative career path for tools goes far beyond bribes and it is not just for future jurists but corporate law, lobbyists, strategic government roles all mixed together. Who ends up where in the end is not as important as the overall effort across the board to control the USA.

                        Programming the people and the system goes far beyond mere bribes... but each person who moves up the ladder does somehow do quite well for themselves in investments and total net worth thanks to the inherent connections with their patrons' interests... so in the end it is a concept of bribe that is much more dangerous and powerful. And if they are not just conservative by inclination but are tools of self-serving oligarchs... are they still "Authentic conservatives"? Sounding like it is not enough. If they are party to maiming the lives of most citizens, conservative or progressive... I think they are not "authentic conservatives" in the original intended sense. But if there is a new definition of the term that replaces the old connotation... then yes they are the new form of "Authentic Conservative" which is actually a corruption of it twisted to serve the 0.1%... and that is historically what happens to conservatism - the philosophy is co-opted quite easily as a tool to perpetuate the wealth and power of the few at the expense of the many.

                        Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

                        by IreGyre on Sun Jan 01, 2012 at 08:06:02 AM PST

                        [ Parent ]

      •  you don't think people like Thomas (0+ / 0-)

        and Scalia have benefited financial from the very people whom the Citizens United decision helps the most?

      •  There is no obvious bribe, no meetings where value (1+ / 0-)
        Recommended by:
        IreGyre

        is promised for certain decisions, quid pro quo.

        Certainly there are judges who are corrupted and are discovered, the notorious example of the Pennsylvania judge throwing the book and serving heavy incarceration to nearly all youngsters coming to his court to stuff the cells of a private corrections company needing lots of clients to keep getting large sums from the taxpayers.  He received money from them as appreciation, a share of the loot.

              The quid pro quos are more subtle and more cleverly done than to have somebody openly solicit or complete a bribe process that could be electronically captured and used a centerpiece in a bribery trial.  No, the bribery is in the indirect emoluments and things of value that accrete to the judges' circle, like his family, his pet interests or hobbies or pursuits .   He belongs to them. He is a "made man", in Mafia parlance.  Not that mafia, but the 1% mafia.

               It is interesting that Thomas can get financing for a museum about things he is interested in by way of a friendly associate in business or law, but not get things of value directly to himself.

                    Having a degree or two of separation satisfies the bribery statute.   When he leaves the office and his family or estate are given proper remunerative thanks that had been  unwise to reveal or display until he was off the court, we may or may not find out the true extent of his cooperation and active furthering of the interests of certain groups.

                   Unlike a Spiro Agnew, who got paper bags of currency every week from pay to play contractors in Maryland even as sitting Vice President of the United States, these justices are far too wily and circumspect to be caught out in obvious plays soliciting or accepting the financial thanks of those they work for.

                     The judge in that PA  case got sentenced to more than 20 years himself, a tiny fraction of all the corrupted sentencing years he handed out.

        If you think that you and a bunch of other people can just show up on Wall St, camp out and have any effect whatsoever.... well, you will be run off in 20 minutes., you will leave town having wasted your effort 6/18/11.

        by BeeDeeS on Sat Dec 31, 2011 at 06:15:19 PM PST

        [ Parent ]

  •  Fantastic news. Montana is noted for (2+ / 0-)
    Recommended by:
    Crazy like a fox, TofG

    bucking the system.  Leave it to the cowboys to raise their middle fingers to the FEDS.

    Going to church doesn't make you a Christian any more than standing in a garage makes you a car.

    by winter outhouse on Sat Dec 31, 2011 at 02:26:05 PM PST

    •  The people of Montana don't necessarily think of (0+ / 0-)

      themselves as cowboys. Mike McGrath, the author of the majority opinion, is from Butte and graduated a year ahead of myself from Boys Central High School in Butte.Butte is a copper mining town. I am pretty sure that Mike never slapped a brand on a calf.

      •  True. I'm sure that most are not branding (0+ / 0-)

        cattle.  You miss the essence of the post by your literal interpretation.  There is a 'cowboy attitude' in Montana.  It is one of independence and a rugged self-reliance. One where a person is not afraid to take a stand for what they think is right.

        Whether Mike McGrath branded cattle, I do not know, nor do I care, as it does not matter when the 'cowboy' has decided to take a stand.  

        ps
        Great Falls native here.

        Going to church doesn't make you a Christian any more than standing in a garage makes you a car.

        by winter outhouse on Sat Dec 31, 2011 at 06:41:01 PM PST

        [ Parent ]

  •  This is great news! (2+ / 0-)
    Recommended by:
    TofG, IreGyre

    You would think that those on the Supreme Court would have come to the same commonsense conclusion. Citizens United will end up being the worst decision ever made by the Supreme Court, even worse than appointing GW Bush president.

    Although there could certainly be some argument about which came first, the chicken or the egg!

    Never attribute to malice that which can be adequately explained by stupidity.

    by reflectionsv37 on Sat Dec 31, 2011 at 03:04:59 PM PST

  •  I hope this will be a chance... (1+ / 0-)
    Recommended by:
    TofG

    ....to overrule Citizens United, just like the Supreme Court replaced Bowers v. Hardwick and Plessy v. Ferguson.

    Citizens United is in the small group of cases like those that have done substantial harm to this county.

    9-11 changed everything? Well, Katrina changed it back.

    by varro on Sat Dec 31, 2011 at 03:26:50 PM PST

  •  needs more exclamation points (0+ / 0-)

    I changed by not changing at all, small town predicts my fate, perhaps that's what no one wants to see. -6.38, -4.15

    by James Allen on Sat Dec 31, 2011 at 03:38:54 PM PST

  •  One can but hope (1+ / 0-)
    Recommended by:
    TofG

    That Kennedy will wake up on the left-hand side of the bed the morning this thing comes before his bench... again.  

    And this is, Ladies and Gentlemen, what ought to largely be considered as the 'easy' way to reform.  God forbid we have to pay the price with the hard way.  

  •  I am proud to be thir. . . Ah. . . 280th (2+ / 0-)
    Recommended by:
    TofG, djMikulec

    To recommend this diary.

    What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

    by agnostic on Sat Dec 31, 2011 at 03:42:50 PM PST

  •  We should have televised auctions of candidates. (1+ / 0-)
    Recommended by:
    IreGyre

    Dispense with the fiction and maybe the shame will get thru to the courts or the pt to the voters.

  •  Next step: SCOTUS (2+ / 0-)
    Recommended by:
    TofG, DefendOurConstitution

    I hope that the Supreme Court hears this case. This may be an overly optimistic prediction, but I'm predicting a 7-2 ruling overturning Citizens United v. FEC, with Kochsuckers Scalia and Thomas dissenting.

  •  This case will finally shut up (1+ / 0-)
    Recommended by:
    IreGyre

    the assholes and liars who nonsensically claim that CU did not give corporations the rights of individuals and that CU is based on reading the first amendment as a technical restriction on Congress.

    The Bill of Rights, as technical restrictions only, do not apply to the states.  They are only incorporated against the states as stipulated by the 14th amendment, which only incorporates INDIVIDUAL rights, privileges, and immunities.

    If CU is applicable to the states, then even the lawyers will have to admit that it does indeed give corporations the rights of individuals.

    If you don't watch out, your job will become one Americans won't do.

    by happymisanthropy on Sat Dec 31, 2011 at 07:02:24 PM PST

  •  Nice to see Corporate Contributions called... (1+ / 0-)
    Recommended by:
    Lawrence

    what it really is: Corruption.

  •  James C. Nelson (3+ / 0-)
    Recommended by:
    FrankSpoke, Geenius at Wrok, IreGyre

    Remember that man's name. It is that of the dissenting judge who so passionately argued, even as he made clear that he thinks Citizens United boxes Montana and other states in, that corporations should not be deemed "persons" and should not have the constitutional rights of human beings:

    I am compelled to say something about corporate 'personhood.' While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

    Oh, that we do not hear this eloquence, this righteous indignation, from more of those who "represent" us in Congress, to say nothing of the justices of the U.S. Supreme Court.  

  •  Sometimes (0+ / 0-)

    My state does something right!

    Our state supreme court is pretty progressive though, compared to our far right state legislature.

    “I never bought a man who wasn't for sale.” Senator William Clark D-MT 1901-1907

    by Ed in Montana on Sun Jan 01, 2012 at 06:20:55 AM PST

  •  Excellent! (0+ / 0-)

    Thanks for posting this!

    I'm boran2 and I approve this message. -SLB-

    by boran2 on Sun Jan 01, 2012 at 06:55:20 AM PST

  •  "Direct spending" - CU was not about direct (1+ / 0-)
    Recommended by:
    AaronInSanDiego

    spending.

    And Citizens United does not change the current law limiting direct spending by corporations to candidates.

    So, it is not surprising at all that Montana would uphold its ban on direct spending.  Good news, but I think you are making way more of this than it deserves.

  •  Kentucky had a similar case in Nov (0+ / 0-)

    It was not entirely the same, not as strong in state alws, but our courts required that ALL contributors to the outside  group, Restoring America, be listed with the Kentucky elections board.

    Come to find out there was ONLY one contributor, that was the Republican Party's candidate for Governor, David Williams, FATHER! It was hilarious,Williams lost by over 20 points.

    Check it out:

    Father-in-law of David Williams says he gave to group whose ads have been banned

    Terry Stephens, a Russell County businessman and owner of Stephens Pipe and Steel, said in an email that he was the sole donor to the group, which has spent more than $1.3 million on television ads criticizing Democratic Gov. Steve Beshear and complimenting Williams.
    Stephens said he supported Restoring America because of its conservative values. Stephens said he did not direct the group to support a particular candidate or campaign.

    Kentucky, Nov, 2011

    Once the court learned the name of the contributor, the ads could continue but there was so much publicity, Williams became 'daddys boy", because few others contributed to his campaign,

    The group also calims rights under the Citizen United cas, attempted to appeal, but it was too late, judge denied it.

    We hope more and more cases like these come foward.

    Re-Elect President Barack Obama & RECALL GOP 2012

    by Wary on Sun Jan 01, 2012 at 12:07:07 PM PST

  •  Great news. (1+ / 0-)
    Recommended by:
    TofG

    Thank you, Montana (and The Troubadour).

    Since money equals influence, the majority of us have no voice in government.

    Will be interested to see how this unfolds at the national level.

  •  Hot diggity (0+ / 0-)

    Thanks for some good news to start out 2012!

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