[EL] ELB News and Commentary 12/20/11

Fri Dec 23 10:00:16 PST 2011

>
>  The state action doctrine is being used or abused to render government
> and the people powerless while other concentrations of wealth and power,
> such as corporations, are given a free hand to do whatever they like.

I always miss this part of the *Citizens United* when I read the opinion.
But it is a long opinion, and I'm willing to be corrected.

Basically, *CU* stands for the proposition that people listening to (and
perhaps heeding) political speech from corporations and unions goes to the
purpose of the First Amendment, and is not a compelling governmental
interest for censorship. Leaving the door open would have been quite
confusing, and was indeed baffling (with credit to the Campaign
Freedom<http://www.campaignfreedom.org/blog/detail/how-the-fec-lost-citizens-united-or-so-we-think>blog):

> Justice Alito initially asked: "Do you think the Constitution required
> Congress to draw the line where it did, limiting [the "electioneering
> communications" ban] to broadcast and cable and so forth? What's your
> answer to Mr. Olson's point that there isn't any constitutional difference
> between the distribution of this movie on video [on] demand and providing
> access on the Internet, providing DVDs, either through a commercial service
> or maybe in a public library, providing the same thing in a book? Would the
> Constitution permit the restriction of all of those as well?"
>
> With those inquiries, the trap was set -- and the Deputy Solicitor General
> took the bait.
>
> Stewart plunged all the way in; he saw the issue as black and white:
> either the government had the power or it didn't -- and he was representing
> the government, so, of course, it did. Thus, in answering the questions,
> the Deputy Solicitor General painted with a broad brush.
>
> "I think the Constitution would have permitted Congress to apply the
> electioneering communication[s] restrictions ... to additional media as
> well," Stewart responded.
>

"We the People" indeed.

Even assuming some kind of meaningful distinction could be made between the
anti-distortion interest and the purpose of the First Amendment, it would
raise a lot of questions. The tougher the distinction, the more the
litigation. And who can best afford the attorneys to fight for their side
of the distinction? The corporations and other moneyed interests. So, you
end up shutting up the grassroots far more effectively with law than the
Evil CorporationsTM ever could with their money.

On Fri, Dec 23, 2011 at 10:30 AM, Paul Lehto <lehto.paul at gmail.com> wrote:

>
>
> On Fri, Dec 23, 2011 at 12:06 PM, Soren Dayton <soren.dayton at gmail.com>wrote:
>
>> So do you believe that, say, members of congress act in the government as
>> servant model or government as master model?
>>
>> This seems a peculiar time to praise and defend the angels
>>
>
> I'm not praising and defending.  They are more often than not acting in
> the capacity of masters rather than servants.  But my point here is that in
> this particular First Amendment political speech context, there's been an
> over-reaction to the extent that government is prohibited not only from
> acting as master, but also from acting in a proper capacity as servant.
>
> It would be hard, I think, to claim that there is not "free speech" on
> this listserv.  Yet there are rules of civility, including guidelines on
> the length of posts, that keep one or a small handful of speakers from
> dominating the discussion.  These kinds of minimal, more or less *
> structural*, guidelines or rules for dialog are a type of what one might
> term "servant"-inspired rule-making.  The *telos*, or end, of such
> servant-style rule-making is a robust, rounded discussion with an informed
> "electorate" resulting here on the listserv.
>
> In a nutshell, the *Citizens United* approach, in the name of defeating
> government as master, throws the servant baby out with the bathwater.
> Because I say this, it does not mean that I am pro-bathwater, i.e.
> pro-censorship, or in favor of laws that fit the government-as-master
> model.
>
> Politically, there is always a sovereign as to every area of power.  The
> sovereign is the ultimate power or authority.  Put another way, the
> sovereign is one you can't "back talk" to.   In this light, perhaps the new
> "sovereign"`-- the ones who can't be controlled and We the People can't
> talk back to (because they hide behind masks of anonymity) --`are the big
> money, often corporate, donors protected by Citizens United and related
> legal dynamics.
>
> The Founders feared concentrations of wealth and power including, but not
> limited to, government.  The state action doctrine is being used or abused
> to render government and the people powerless while other concentrations of
> wealth and power, such as corporations, are given a free hand to do
> whatever they like.  This is not the balance of power they had in mind at
> the Boston Tea Party, where they were tossing the tea of one of the world's
> first multinational corporations into Boston Harbor because of the
> excessive lobbying power the British East India Company had with Parliament.
>
> Paul Lehto, J.D.
>
>>
>> Sent from my Verizon Wireless BlackBerry
>>
>> -----Original Message-----
>> From: Paul Lehto <lehto.paul at gmail.com>
>> Sender: law-election-bounces at department-lists.uci.edu
>> Date: Fri, 23 Dec 2011 09:18:45
>> To: Smith, Brad<BSmith at law.capital.edu>
>> Cc: law-election at UCI.EDU<law-election at uci.edu>
>> Subject: Re: [EL] ELB News and Commentary 12/20/11
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>
>
> --
> Paul R Lehto, J.D.
> P.O. Box 1
> Ishpeming, MI  49849
> lehto.paul at gmail.com
> 906-204-4026 (cell)
>
>
>
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Steve Klein
Staff Attorney & Research Counsel*
Wyoming Liberty Group
www.wyliberty.org

**Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20111223/b9a98ca0/attachment.html>