[EL] Truth to power?

[Joseph Birkenstock]

Well, Barnaby, at the risk of inviting anyone to draw a weapon (en sixte or otherwise) and flick it upward at Justice Scalia while he sonorously chants "Rule 47 applies to a pretrial motion...," allow me to retort.  (Partially agree, actually, and partially retort.)
 
We agree that Ginsberg and Breyer aren't on especially strong ground to advance that claim that *corporate* IE's as such are themselves the root of much current concern about superPACs, but I think that illustrates the overreach of CU as much as it illustrates Ginsberg's and Breyer's imprecision.  Kennedy's opinion didn't permit video-on-demand distribution of a corporate-funded 90 minute campaign ad on the basis that VOD is basically a private communication, or that the movie as a whole wasn't express advocacy, or that CU was a really engaging in a media function by creating and distributing its film, or any other narrower basis more appropriate to the case as litigated.  
 
Instead, the CU majority held - in the absence of any actual record suitable to this kind of facial evaluation - that there are no applications of 441b sufficient to justify the constitutionality of the statute.  Regardless of the potential variations in "corporate" expenditures you address below: regardless of whether a corporation provided the money, or spent it, or both; and regardless of whether any corporation in that chain is a business corporation or an advocacy organization.  
 
And, more to my point, regardless of whether the "independence" of the IE is of the "CU's movie about Hillary variety" or the "functionally single-candidate committee singled out for direct fundraising help by the benefitting candidate" variety.  It's true that 441b equally prohibited all of the above with respect to corporations, but in facially invalidating the statute without a record (or even much briefing) about whether a connected PAC is a "separate entity," for example, or whether "the advent of the Internet" would somehow actually "provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters," the CU court didn't just allow Citizens United to distribute its movie, it broadly concluded that independent expenditures by anyone simply pose no risk of regulable corruption.  Ever, in any circumstance.
 
So a complaint that Ginsberg and Breyer too quickly blur the distinctions between the "corporateness" of particular IE's on the one hand and the validity of anyone's concerns about whether "independent" expenditures give rise to corruption or the appearance of corruption more generally is fair enough, but I still think it's an equally fair complaint against the opinion that opened the door to all of it.  
 
Best,
Joe
 
P.S.  And sorry if I got lost anywhere in that recap at the top of this email, we Padawan learners tend to mix up the FRCP and the FRCrimP when confronted with too much sonorous chanting.  
 

________________________________

From: BZall at aol.com [mailto:BZall at aol.com]
Sent: Wed 2/22/2012 8:53 AM
To: Joseph Birkenstock
Cc: law-election at uci.edu
Subject: Re: [EL] Truth to power?


[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 
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 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/ 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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