[EL] Truth to power?

[BZall at aol.com]

[nods] Indeed. The litigator's eternal dilemma. And in response, a merciful 
 Lady Justice, having peeped under her blindfold to see the anguish of 
those  proposing issue resolution not tied to "obvious" facts, grimaced, raised 
her  right hand, with her sword en sixte, and flicked it upward,  drawing 
forth what we all know today as . . . Rule 12(b)(1). Inculcated  in 
generations of DoJ padawan learners in the creche, surrounded by the  ghosts of 
Swierkiewicz and his eternal enemy Sorema N.A., sonorously  chanting "12(b)(1), . 
. . 12(b)(1) . . . 12(b)(1)," the cadaverous DoJedi  Masters lean in to 
fiercely hiss "END this!" (And I speak as one who  has stood at the podium as 
Justice Scalia (one of MY  votes!) turns to his colleagues and says: "he wants 
to be here, but I  don't think he has a right to be here.")  
 
Still, . . . a real teachable moment here, and I'm not referring to  the 
also-correct issue of facial challenges requiring an explanation for every  
constitutional use. Examine for a moment the purpose and 
undoubtedly-unintended  effect of the rule requiring a factual basis in the context of the 
Montana  concurrence. The facts in Western Tradition as laid out relate to 
corporations,  as does the Montana Supreme Court challenge to Citizens United. 
Indeed, that was  the constant attack on CU at the beginning, a reprise of 
Austin's  anti-distortion rationale just struck down. And that is unquestionably 
what JBG  means. 
 
Yet, as today's front page story in the Washington Post demonstrates, the  
"huge money" is not coming from corporations. The corporate funding 
"unleashed"  by CU amounts to only 23% of superPAC funding.   
(http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-the-
gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1) 
_http://www.washingtonpost.com/politics/corporations-are-sending-more-contributions-to-super-pacs/
2012/02/02/gIQAL4dYlQ_story.html_ 
(http://www.washingtonpost.com/politics/corporations-are-sending-more-contributions-to-super-pacs/2012/02/02/gIQAL4dYl
Q_story.html)  
Most of the "huge" money is coming from individuals. 
_http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the
-power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1_ 
(http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-the
-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1)  Sheldon  Adelson 
says he feels so strongly he might spend $100 million. 
_http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-adelson-says-he-might-give
-100m-to-newt-gingrich-or-other-republican/_ 
(http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-adelson-says-he-might-give-100m-t
o-newt-gingrich-or-other-republican/)  And,  as has been discussed here, 
those individuals were free to spend before CU. 
 
So let's take JBG at her words: 
 
Montana’s experience, and experience elsewhere since this Court’s decision 
 in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make 
it  exceedingly difficult to maintain that independent expenditures by  
corporations “do not give rise to corruption or the appearance of  corruption.” 
Id., at ___ (slip op., at 42). A petition for certiorari will give  the 
Court an opportunity to consider whether, in light of the huge sums currently 
deployed  to buy candidates’ allegiance, Citizens United should continue to 
hold  sway. 
 
Lady Justice's wisdom in requiring facts to illuminate the real issues  
presented may be a dilemma, but it is probably one that betters  Justice. 
Justices Ginsburg and Breyer believe that the "huge sums" are  "deployed" "by 
corporations" when they are actually given by individuals. I  believe that it 
is wrong to claim that CU "held" that corporations are people.  Whatever your 
position on that, two Justices have now endorsed the  concept in reverse. 
They are not saying that corporations are people; they are  saying that 
people are corporations. 
 
 
 
 
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani,  LLP
Please note our new address:
10411  Motor City Dr., Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/) 
bzall at aol.com



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In a message dated 2/21/2012 6:59:51 P.M. Eastern Standard Time,  
jbirkenstock at capdale.com writes:

 
True  enough Barnaby, good point.  I had the impression that DOJ would have 
 much preferred the Court to similarly require a factual record suitable to 
a  facial challenge to 441b, once the Court un-stipulated that issue in CU  
itself, but I also think I see the reasoning behind idea that the Supreme  
Court isn’t precluded from revisiting an issue “passed upon” by a lower 
court  if the Supremes feel that issue is the one that should properly decide 
the  case.   
But  that said, I just think that state of affairs poses an excruciating 
problem  for government lawyers – do they have to develop (and convince a 
district  court judge to allow them to develop) a factual record sufficient to 
answer  every conceivable constitutional argument in every case, even where 
the  defendant/other litigant is willing to stipulate those issues away?  
Just  seems like they’re damned if they do and damned if they  don’t. 
 





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