Arlen Specter Slams Alito & Roberts On Campaign Finance Decision

By Justin Gardner | Related entries in Democrats, Money, Republicans, Supreme Court

Specter lost his senate seat, but he has some parting shots for Republican appointed judges.

From CNN:

“Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising – thus effectively undermining the basic Democratic principle of the power of one person, one vote,” said Specter. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.”

Wait a second…activist Republican judges? That’s crazy! They’re strict constitutionalists!

By the way, Specter lost to Joe Sestak for the Dem primary victory…who then lost to Republican Pat Toomey of the Club for Growth…who doesn’t think corporations should have to pay any taxes. He also claims to want to end abortion and put doctors in jail.

Wait…let me say that again…Specter lost to Joe Sestak for the Dem primary victory…who then lost to Pat Toomey of the Club for Growth…who doesn’t think corporations should have to pay any taxes. He also claims to want to end abortion and put doctors in jail.

Welcome to our crazy new world.


This entry was posted on Tuesday, December 21st, 2010 and is filed under Democrats, Money, Republicans, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

32 Responses to “Arlen Specter Slams Alito & Roberts On Campaign Finance Decision”

  1. Tweets that mention Donklephant » Blog Archive » Arlen Specter Slams Alito & Roberts On Campaign Finance Decision -- Topsy.com Says:

    [...] This post was mentioned on Twitter by Justin Gardner. Justin Gardner said: DONKLEPHANT: Arlen Specter Slams Alito & Roberts On Campaign Finance Decision http://ow.ly/1ayG7s [...]

  2. gerryf Says:

    I personally cannot wait for the mental gymnastics that we are going to see from some right wing nut job defending Roberts & Alito….it seems inconceivable, but I’m sure one of the regulars will come up with something…

  3. kranky kritter Says:

    I despise the role that large contributions from powerful special interests play in American politics. What transpired in the first congressional campaigns after McCain-Feingold was struck down has made me even more convinced that it’s a problem that must be addressed.

    From the moment campaign finance reform was passed, I expected the Supreme Court to overturn it on 1st amendment grounds. Because I have yet to hear a convincing argument that McCain-Feingold does not infringe on the first amendment. IMO, it clearly does.

    My wanting it to be the other way just doesn’t make it so.

  4. Rich Horton Says:

    Folks, if you want to limit the First Amendment, at least have the common decency to try to amend the Constitution first.

    Besides, the Kelo decision, perpetrated by the leftist wing of the court, is BY FAR the single most egregious violation of the American people since Dred Scott.

    You can fault the campaign finance decision, but there is no doubt if they erred they erred on the side of protecting liberty at the expense of governmental power. (And given I just watched the film “The Art of the Steal” tonight, I’m in no mood to be lectured by a politician from Pennsylvania, one of the most immoral and corrupt places on earth.)

  5. kranky kritter Says:

    I don’t like Kelo. At all. But I don’t agree that it’s a leftist perpetration. Conservatives just want to blame liberals for this ruling and be blameless.

    It’s a statist (pro-state, anti-individual) perpetration, not a leftist one. And I think liberals and conservatives have conspired together to embed this statist bias. Liberals can’t be blamed for how the deification of economic growth has become ingrained in the rhetoric of both parties. That’s clearly the fault of pro-business conservatives.

    You made everyone think shopping malls and condo developments and commercial enterprise were the be-all and end-all. Eager enterprisers have leapt into bed with the government, jumping with both feet. The military-industrial complex warnings of Eisenhower are outdated. It’s the rule now, not some special exception. Most big businesses play footsie with the feds and are loving it.

    Ought we to be surprised that the government wants to be able to take folks houses and put up a hotel? Show me a flush real estate developer, and I’ll show you a guy who votes republican and looks out of his Boardwalk highrise while scheming a way to demo Mediteranean and Baltic ave, kick out the riff-raff, and extend his empire. If his buddies at the state house can help, he’ll surely ask.

    Anyone who thinks Republicans represent some sort of a cure for leftwing invasiveness are sadly mistaken. Things like Kelo won’t be fixed as long as regular folks who are conservatives can do no better than to righteously blame liberals and blindly back Republicans.

    If you oppose Kelo, then make common cause with unpowerful regular folks across the political spectrum. The awful truth behind Kelo is that it isn’t about partisan politics at all. It’s about power. When puny regular folks are in the way of big progress, whether it’s liberal progress or conservative progress, they’ll get swiped away.

    That’s pretty uncomfortable stuff to entertain if you are a conservative Rich. But how else to explain the stunningly egregious nature of the Kelo decision alongside the relative lack of serious outcry from conservative politicians holding federal elected office. Sure, some may have paid lip service here or there, but where’s the action? Republicans went to the mat to preserve tax cuts, but where’s the organized effort to clarify what “public use” is supposed to mean?

  6. WHQ Says:

    The question regarding the Citizens United case and the broadness of the ruling (why shouldn’t they be able to put up a PPV offering? that’s not the problem) is that it gives corporations the status of citizens (really, in practical terms, greater status) as regards free speech.

    Obviously, corporations were created to allow businesses some of the legal standing that individuals have for the purposes of conducting business (being able to enter into contracts, for instance). I don’t see that that necessitates corporations (or unions) getting to have free reign in the arena of political speech such that their financial resources allow them to drown out the political speech of individual human beings (or the non-profit groups individual human beings form solely for the purposes of political action) during the most crucial of times for our democratic process – just before elections.

    The question isn’t one of removing existing First Amendment rights, rather one of whether those rights that we the people have fully extend to for-profit corporations.

  7. wem-ism Says:

    what’s a little repudiationism of 100 year old precedents, historical revisionism, anti-constitutionalism, racism, anti-democracyism, 21st century military imperialism, religious clericalism, if it gets the 2% what they want, which is absolute power absolutely, or corporate plutocratism.

  8. kranky kritter Says:

    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.

    McCain-Feingold either does or does not abridge some of this stuff. SCOTUS ruled it does does. I reluctantly agree.

    It’s unclear to me what you think corporations have to do with it. You seem to think the first amendment says “only individuals have the right to free speech.” But what it clearly says is that free speech can’t be abridged.

    Now if you want to make some sort of should argument, like “free speech should be restricted to individuals in specific ways” or “powerful interest groups should not be allowed to dominate public communication,” then I’d likely be with you.

    And then it would be up to us to suggest revisions and get our countrymen to approve them. That was the founding deal. We’re stuck with it.

    For the record, I’m not anti-evolution of the constitution. I’ve argued more than once for the rare efficacy of creative interpretations that vary with the actual text. But in the end, the power to make that stick rests only with SCOTUS. Folks on one side made their most persuasive arguments in favor of the take that corporations and interest organizations are NOT really protected by “free speech can’t be abridged.”

    And the majority didn’t buy it.

  9. WHQ Says:

    McCain-Feingold either does or does not abridge some of this stuff. SCOTUS ruled it does does. I reluctantly agree.

    So do I. But the broadness of the ruling goes beyond that. And what does “free speech” mean? (Or “abridged?”) I don’t think it means you can express your speech by any available means. If Acme Corporation wants to publish newsletters, no one should be stopping them, even if the content is decidedly political. Harnessing the public airwaves is another matter. Denying someone (or something) a particular mode of free speech that involves a regulated public good, when there are innumerable other modes of expressing the very same content, is not the same as preventing the speech, just as my deciding not to give or sell you a megaphone is not the same thing as my covering your mouth with duct tape.

    And the majority didn’t buy it.

    Obviously, otherwise they would have ruled differently. I’m disagreeing with them on parts of the ruling, not saying that they didn’t rule the way they did or weren’t in a position to do so. Are we not allowed to disagree with the SCOTUS? I’m not sure what your point is there, kk.

    Disallowing congress from abridging rights, understood to be fundamental to free people, doesn’t necessarily apply to non-persons that don’t have fundamental rights. I don’t think it’s a stretch to say the constitutional context is understood to be within the realm of human rights. Corporations wouldn’t exist at all without the laws that created them, so it seems to be well within the realm of law that their rights, which were only conferred for the sake of the public good by way of commerce, can be as limited as deemed necessary for the public good.

  10. WHQ Says:

    Here’s a Wikipedia excerpt that expresses more or less what I was getting at:

    As juristic persons, corporations have certain rights that attach to natural persons. The vast majority of them attach to corporations under state law, especially the law of the state in which the company is incorporated – since the corporations very existence is predicated on the laws of that state. A few rights also attach by federal constitutional and statutory law, but they are few and far between compared to the rights of natural persons. For example, a corporation has the personal right to bring a lawsuit (as well as the capacity to be sued) and, like a natural person, a corporation can be libeled.

    But a corporation has no constitutional right to freely exercise its religion because religious exercise is something that only “natural” persons can do. That is, only human beings, not business entities, have the necessary faculties of belief and spirituality that enable them to possess and exercise religious beliefs.

  11. kranky kritter Says:

    Disallowing congress from abridging rights, understood to be fundamental to free people, doesn’t necessarily apply to non-persons that don’t have fundamental rights. I don’t think it’s a stretch to say the constitutional context is understood to be within the realm of human rights.

    Of course it’s a bit of a stretch. You’re relying on what you call a fundamental understanding, which you claim exists. Where does it exist? Why in the minds of some subset of all the people. What’s relevant is what the constitution says, which is that free speech can’t be abridged. If what you say about this fundamental understanding is true, then it exists at best in some penumbra of the constitution. Which, again, is to say “in the minds of some of the people.”

    To be clear I wholly understand what you’re getting at, no need for further explanation is necessary.

    I just don’t find it particularly convincing or conclusive. As Gertrude Stein once said, “it has a certain syrup, but it doesn’t pour.” And as I’ve stressed before, I really WANT limits on big money influence to be OK. It’s just that the more I thought about it, the more problems I foresaw that I didn’t like.

    For one, if every member of a group or organization has the right to free speech, what is it about some organizations that makes free speech rights disappear? I’ve never come up with a good answer for that. Would some organizations retain free speech rights, like maybe unions and political parties, but others lose them? How would that be decided, and more importantly, WHO would decide?

    When all’s said and done, we’d end up with free speech being granted to some entities and denied to others by some agency of government. I haven’t much confidence in that.

    Harnessing the public airwaves is another matter. Denying someone (or something) a particular mode of free speech that involves a regulated public good, when there are innumerable other modes of expressing the very same content, is not the same as preventing the speech, just as my deciding not to give or sell you a megaphone is not the same thing as my covering your mouth with duct tape.

    .

    There’s something to that. But let’s be clear, you’re talking about not allowing me to have my megaphone of choice in circumstances where the megaphone I have chosen might be the best and most expedient tool. Again, who is deciding this, and on what basis? I’ll not be allowed certain avenues of expression, and others will.

    If what you’re talking about is a very clear and obvious public good, then surely we should be able to establish the grounds for the regulations we want in a way that does not contradict well-established rights. In other words, if this is so clear and obvious, why can;t we come up with a sensible constitutional amendment and get people on board?

    Otherwise, we’re stuck in a perpetual feedback loop where the same arguments for and against keep getting repeated. If dampening the influence of big money in politics is a no-brainer, then I think we may need to amend the constitution. My gut says that in the absence of that, we’re just going to get more and more laps round the same mulberry bush.

    If we can’t make that sort of thing happen from time to time, we’re eventually going to get stuck at a point where important policies pitch and yaw back and forth as liberal and then conservative courts imagine stuff in the constitution that’s not there, as a matter of political expedience.

    How in the world did the supreme court manage to understand public use to include the government choosing which private uses were best, as they did in Kelo? Bebopping and scatting.

    Obviously, otherwise they would have ruled differently. I’m disagreeing with them on parts of the ruling, not saying that they didn’t rule the way they did or weren’t in a position to do so. Are we not allowed to disagree with the SCOTUS? I’m not sure what your point is there, kk.

    My point is that the arguments were had, and a fairly defensible decision was made. This suggests to me that the post-decision route involves either living with the decision which determined what the law allows, or revising it by the provided route, amendment.

    You are certainly free to disagree, but the precedent has been set, and so the constitution means what SCOTUS says. Essentially, this means that any argument on the subject you make henceforth is reduced to a “should” argument. The ruling has been made, and so your opinion is, constitutionally speaking, incorrect. You say that corporations don’t have these rights, but SCOTUS says they do. So they do, whether you or I like it or not.

  12. WHQ Says:

    If it helps, I have no problem with amending the constitution to make it explicit that there can be legal limits as deemed necessary on the free speech of non-persons, or something more specific and limited than that. Whatever keeps non-persons with vast financial resources from overtaking (or at least unduly influencing) the national discourse at election time.

    So they do, whether you or I like it or not.

    I guess so, but, to be clear, the question was whether they had them before the ruling. I didn’t exactly say that, but I figured that was pretty clear. Did the SCOTUS grant corporations new rights or simply ratify existing ones? What if we were discussing the rights of corporations just for the hell of it in a universe where the was no Citizens United case?

    (And did they need to rule on questions that weren’t before them? Was there any reason to say anything more than “Citizens United is allowed to air political ads on pay-per-view?”)

  13. WHQ Says:

    For one, if every member of a group or organization has the right to free speech, what is it about some organizations that makes free speech rights disappear?

    I didn’t catch this in its entirety the first time I read it. My answer is: “nothing.” The free speech of the individual is separate from that of the group. The group may or may not have the same degree of free speech as a group that the individuals have given the purpose of the group and the legal recognition thereof. Citizens United is a group that exists for the purpose of political advocacy and is recognized under law as such. It would be silly to recognize such political organizations, formed for the purposes of political speech, only to limit their speech rights any more than those of the individual members.

    Corporations like, say, General Electric are recognized as legal entities for purposes of commerce. They are not people. The are legal entities with aspects of individual, legal personhood to allow them to function within our legal framework for their intended purposes. But limiting GE’s free speech doesn’t limit the free speech of its employees or shareholders or board members. They have whatever free speech rights as individuals that they would have were they not associated with GE. It’s just that their rights don’t transfer fully to GE. GE is a legal creation. You and I are not, nor are GE’s employees, shareholders or board members. And if GE were not organized for the purposes of politcal advocacy and membership in the organization not predicated on said political advocacy, how does GE’s political speech correlate to that of its “members.”

    Why is there any mention of the press in the First Amendment? Free speech would cover the press if free speech weren’t intended to apply to people as individuals, right?

  14. kranky kritter Says:

    I guess so, but, to be clear, the question was whether they had them before the ruling. I didn’t exactly say that, but I figured that was pretty clear. Did the SCOTUS grant corporations new rights or simply ratify existing ones?

    They didn’t not have them. Did they have them before? Depends on whether you think the constitution explicitly addressed the issue. Like I said, the constitution states that free speech rights can’t be abridged. To my knowledge it doesn’t say that this applies only to individuals. What the 1st amendment allegedly “means” now has been overlaid over time, and some of those claimed meanings are little more than opinion and speculation unless there’s a specific legal precedent which says “in this case, free speech means x for y.”

    <blockquote What if we were discussing the rights of corporations just for the hell of it in a universe where the was no Citizens United case?

    MY opinion about various human and civil rights is that they don’t exist in everlasting space and time waiting for us to discover them. The only real rights are the ones we can declare, defend, and enforce.

    What happens with the ones we declare is that we don’t always make the declarations in a clear and specific enough way, and then as time passes the meanings of these declarations become amorphous.

    And I think it’s very difficult to cleanly cleave the idea “corporation” from “human.” A corporation is ultimately composed of and run by humans, and has no meaning or utility without them. Just because this neat cleaving is sometimes performed on paper theoretically and for some legal purposes doesn’t make it especially satisfactory to me.

    A corporation cannot “speak” without some human taking action, which means that ultimately the speaking action is still the action of some human or grouping of humans. And each of those actors retains free speech rights. So what some seek to cleave remains inseparable.

  15. kranky kritter Says:

    Why is there any mention of the press in the First Amendment? Free speech would cover the press if free speech weren’t intended to apply to people as individuals, right?

    Perhaps if you presume perfect logical rectitude on the part of the authors. I have been an editor for WAY too long to do that. What’s quite common among writers is to write a general rule and then to add additional specific amplification to make things extra clear regarding things which seem especially important at the time of writing. That’s how I’d regard the freedom of the press mention, that it was important enough that they added it just to be crystal clear that press freedom could not be curtailed.

    The free speech of the individual is separate from that of the group. The group may or may not have the same degree of free speech as a group that the individuals have given the purpose of the group and the legal recognition thereof.

    Why? What is that based on? What is it about a grouping that could make these rights disappear? Me, Larry and Curly can each say what we want, but if we agree, and decide to speak as one voice, we suddenly may or may not have the right to do so? Really? That sounds sort of absurd to me.

    Are you just stating a way that it should or could work, as your opinion on how to approach this. Or are you making a truth claim here?

    Citizens United is a group that exists for the purpose of political advocacy and is recognized under law as such. It would be silly to recognize such political organizations, formed for the purposes of political speech, only to limit their speech rights any more than those of the individual members.

    That sounds like it is implying that the idea of forming a corporation doesn’t include the purpose of political speech. That strikes me as pretty naive. Very few organizations are in fact single purpose, especially as time passes. It might be convenient to think that we could easily sort all organizations into two categories, but have serious doubts about that. Where do unions fit, for example? I am quite confident that the task of finding a clear and fault free dividing line between pure political advocacy groups and others would be quite hard. In addition to that, it would probably be pretty easy for a corporation to form a legally separate group which fit the “pure advocacy” guidelines.

    Corporations like, say, General Electric are recognized as legal entities for purposes of commerce. They are not people. The are legal entities with aspects of individual, legal personhood to allow them to function within our legal framework for their intended purposes. But limiting GE’s free speech doesn’t limit the free speech of its employees or shareholders or board members. They have whatever free speech rights as individuals that they would have were they not associated with GE. It’s just that their rights don’t transfer fully to GE.

    Why not? Free speech is being abridged, and the the constitution says it can’t be abridged.

    Am I missing some other part of the constitution which explicitly states that the bill of rights applies solely and exclusively to individuals, and so anything in the BoR which could be taken to be a simple statement of policy need not be honored if it is applied entities which don’t count as single individuals?

    I’m really asking. I have read much which suggests that many folks are quite comfortable with this presumption, and no one has yet pointed me to a sound and well-established legal basis for it.

    At the present time, I am not opposed on principle to some sort of effort to restrict commercially motivated speech that acts against “public good.” It’s only that I think it would be very hard if not impossible to do, And that the end results would be a more complicated and labyrinthine system. The problem with such systems is that they inevitable become more and more likely to ensnare the weak. the small, the spontaneous.

  16. WHQ Says:

    I have read much which suggests that many folks are quite comfortable with this presumption, and no one has yet pointed me to a sound and well-established legal basis for it.

    There is, or was, this (emphasis added):

    http://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_Commerce

    Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments. The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and the Michigan law still allowed the corporation to make contributions from a segregated fund.

    The case recognized a state’s compelling interest in combating a “different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.

    The decision was overruled by Citizens United v. Federal Election Commission, 558 U.S. 50 (2010).

  17. WHQ Says:

    At the present time, I am not opposed on principle to some sort of effort to restrict commercially motivated speech that acts against “public good.” It’s only that I think it would be very hard if not impossible to do, And that the end results would be a more complicated and labyrinthine system.

    We already had a system that limited corporate political speech. It was eliminated. Can you demonstrate the problems is was causing before it was eliminated and that necessitated its total elimination? There’s no need for theories here.

    Again, Citizens United was a very broad ruling, broader than it needed to be to redress any violations of Citizens United’s free speech rights.

  18. WHQ Says:

    Me, Larry and Curly can each say what we want, but if we agree, and decide to speak as one voice, we suddenly may or may not have the right to do so? Really? That sounds sort of absurd to me.

    Have you, Larry and Curly formed an organization of some sort that has legal recognition as a separate, singular, legal entity? Or are you just three guys speaking with one voice? If you three have formed a corporate entity of some sort, why? You could just say what you like regardless, right?

    A corporation cannot “speak” without some human taking action, which means that ultimately the speaking action is still the action of some human or grouping of humans. And each of those actors retains free speech rights. So what some seek to cleave remains inseparable.

    Humans can speak without corporations, though, right?

    I am quite confident that the task of finding a clear and fault free dividing line between pure political advocacy groups and others would be quite hard. In addition to that, it would probably be pretty easy for a corporation to form a legally separate group which fit the “pure advocacy” guidelines.

    On the first part, see my previous comment. And don’t let the perfect be the enemy of the good. On the second part, they’re called PACs. There’s an established system for them.

  19. Tillyosu Says:

    Wow there’s so much to take issue with in this thread. But for KK, here are the Justices who voted with the majority in Kelo:

    John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

    I’m no Supreme Court expert (though I did go to law school), but I think this is widely accepted to be the “liberal” wing of the Supreme Court (with the exception, perhaps, of Kennedy). But you’re right, this is all about power. As the dissenters pointed out:

    Sandra Day O’Conner:
    Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.

    Clarence Thomas:
    Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

    Those evil corporatist conservatives. So could you please explain to me how pro business conservative ideology somehow managed to sway the liberal wing of the Supreme Court, but somehow couldn’t convince the conservative wing?

    To quote an earlier commenter, that requires some serious mental gymnastics.

  20. kranky kritter Says:

    So could you please explain to me how pro business conservative ideology somehow managed to sway the liberal wing of the Supreme Court, but somehow couldn’t convince the conservative wing?

    Nope. I can’t. So it’s a good thing I didn’t say that. You’ve connected noticeably different dots than the ones I did. Maybe you should read what I said again.

    The point was that the success of conservatives in spreading pro-business ideas has led to an unholy marriage of business and government in a host of ways. And that’s a big part of the reason why the idea of government taking property for the sake of economic development became a tenable idea.

    My understanding of the Supreme Court is that there are a number of justices who are reliably conservative, another contingent that are reliably liberal, and a few who seem to consider both sides and don’t fit your ideological divide predictably. O’Connor and Kennedy do not IMO fit your mold particularly well. And let’s not forget to notice that Kennedy and Souter, two of your liberals, were appointed by Republicans. I guess they didn’t get your memo, huh?

    Some members of the Supreme Court seem to be more swayed by political ideology than others. Sometimes folks who are appointed in the expectation that they will be reliably ideological later demonstrate an annoying habit of independent thought and taking of the job of SCOTUS justice with a serious eye to posterity. As a non-partisan, I would argue that is a feature, not a bug.

  21. kranky kritter Says:

    Have you, Larry and Curly formed an organization of some sort that has legal recognition as a separate, singular, legal entity? Or are you just three guys speaking with one voice? If you three have formed a corporate entity of some sort, why? You could just say what you like regardless, right?

    You’re spitting the bit here. I asked first. Why do our free speech rights disappear in the context of forming an organization? All you did was tell me that we each had free speech rights on my own. We already knew this.

    I am quite happy to acknowledge that we “could” just say what we wanted without forming an organization. That leaves unanswered the question of why we should be required to remain unorganized in order to preserve those rights.

    We already had a system that limited corporate political speech. It was eliminated.

    Right, because it was deemed unconstitutional, which as I previously stated, I reluctantly agree with. So I think it’s implicit in my statement above that the sort of effort I would support would be one which **wasn’t** unconstitutional.

    Can you demonstrate the problems is was causing before it was eliminated and that necessitated its total elimination? There’s no need for theories here.

    Are you looking for something else besides unconstitutionally abridging free speech here? I believe that to be the relevant problem.

    I don’t know what to say about “necessitating its total elimination.” Is it your contention that SCOTUS should be required to perform editing and revision on large pieces of legislation when some part or parts violate the constitution?

    I know that sometimes SCOTUS has struck down only one or several parts of a law. I assume that this is easier to do in some cases than in others. And I also assume that this aspect of a ruling is discussed by the justices during their deliberations. So in answer to your query, I can only speculate that in this instance the justices decided that the wiser course was to send the whole thing back to the drawing board instead of getting intimately involved in trying to re-draw all the lines. That seems plausible and acceptable to me, because the supreme court isn’t the branch that is supposed to compose laws. That’s the legislature’s job.

    No idea how much dropping in I’ll be able to do, as I have last minute holiday stiff to do. Best to you and yours. Thanks for the thoughtful good-faith chitter chatter here and as usual.

    Merry Christmas to xmas celebrants, and peace and goodwill wishes to all.

  22. Tillyosu Says:

    The point was that the success of conservatives in spreading pro-business ideas has led to an unholy marriage of business and government in a host of ways. And that’s a big part of the reason why the idea of government taking property for the sake of economic development became a tenable idea.

    Tenable to whom KK? Because as far as I can tell, it was only tenable to the liberal wing of the court. So my question stands: how is it that conservative pro business ideas made the Kelo decision tenable to the liberals on the court, but not the conservatives?

    The answer, of course, is that the Kelo decision really didn’t have anything to do with pro business ideas. It had to do with government power. I would argue that years of liberals spreading pro government ideas is what made the Kelo decision tenable, which is why the liberals voted for it, and the conservatives did not.

    But what about those “pro business” ideas? Which ideas are you referring to specifically? Because my impression is that conservative economic arguments have not been “pro business,” but rather “pro free market.” And, I’m sure I don’t have to tell you, free marketers seek to limit government involvement in commerce. Not increase it.

    Look, I understand how desperately you want to pin the Kelo decision on conservative ideology, but Kelo had nothing to do with conservatives or conservative ideas…and everything to do with liberals and liberal ideas. The vote speaks for itself.

  23. kranky kritter Says:

    Tenable to whom KK?

    Tenable to a much broader spectrum of voters and politicians.

    Because as far as I can tell, it was only tenable to the liberal wing of the court.

    Right, because you’ve plowed right ahead and ignored my point about justices who don’t fit your narrow and inaccurate formulation wherein every justice is either conservative or liberal. Well played?

    So my question stands: how is it that conservative pro business ideas made the Kelo decision tenable to the liberals on the court, but not the conservatives?

    Why don’t you just answer that one yourself? As I stated previously, I’m not interested in defending some contention that I didn’t make.

    The answer, of course, is that the Kelo decision really didn’t have anything to do with pro business ideas. It had to do with government power.

    Humbug. It has to do amply with both. It’s just that you can only win the argument you have crafted by claiming it must have to do with one or the other, and then picking your favorite boogeyman to blame. Again, well played?

    I would argue that years of liberals spreading pro government ideas is what made the Kelo decision tenable, which is why the liberals voted for it, and the conservatives did not.

    I don’t entirely disagree. That’s a big part of it. If you had even bothered to pay attention to what I said in the first place, you would have noticed by now that it also had much to do with liberals co-opting and spreading conservative pro-business ideas, with many conservatives eagerly going along. And with many opportunistic businessmen who vote Republican eagerly jumping into bed with government. And with many pro-business conservative politicians eagerly going along with government-business cooperation. What fraction of conservatives have ranted on principle against business-government cooperation?

    But what about those “pro business” ideas? Which ideas are you referring to specifically? Because my impression is that conservative economic arguments have not been “pro business,” but rather “pro free market.” And, I’m sure I don’t have to tell you, free marketers seek to limit government involvement in commerce. Not increase it.

    Right, because you are all so very principled. Unfortunately, what matters very little in the end is these arguments you are so very proud of. And what matter so very much is the evolution over time of the actual business practices. All folks of high-minded principles are subject to the problems of actual venal human behavior. Business HAS hopped into bed with government. Eagerly, and at great profit. You want to hold yourself blameless because you never intended that and don’t approve. Doesn’t matter now. The ship has long since set sail and landed in federal harbors, and pro-business conservatives had a big hand in launching it whether they like it or not.

    You’re quite right that some pro-business conservatives are pure free marketeers who don’t approve of business/government involvement. But they made common cause for the sake of political expedience with folks who were simply pro-business pragmatists as part of the conservative revolution from Reagan through Gingrich. And here we are now. Your principled ideology didn’t survive in pure form, it was co-opted and it evolved.

    Look, I understand how desperately you want to pin the Kelo decision on conservative ideology, but Kelo had nothing to do with conservatives or conservative ideas…and everything to do with liberals and liberal ideas. The vote speaks for itself.

    You seem desparate to misunderstand all I have said, for the sake of preserving your narrow and simplified view on Kelo. Kelo has PLENTY to do with a paternalistic liberal approach to government which cooperates with business. I never said otherwise.

    But it’s conservatives who held business’s hand and invited them to come in out of the cold. The promise was what? That if they got involved for a bit, they could make government become smaller and stay out of the way? Hah! That was never going to happen, because entanglement is always much easier than disentanglement.

    Good luck now leading that charge of disentangling government from business. You’re committed to it, right? It’s as easy as walking away. ROTFLMAO.

  24. WHQ Says:

    No idea how much dropping in I’ll be able to do, as I have last minute holiday stiff to do. Best to you and yours. Thanks for the thoughtful good-faith chitter chatter here and as usual.

    Same here, kk. Did you try the Sierra Nevada Celebration? Did you get lots of snow up your way from the storm that postponed the Eagles game I couldn’t wait to watch?

  25. kranky kritter Says:

    We received dire warnings of 2 feet of snow, but ended up w/only afoot or so, thankfully. I heard NYC got poned. So, tuesday night football. Huh.

    Just got round to trying the celebration tonight. Strong. Hoppy and also a bit malty. A little bitter on the first few swigs, but that fades.

    I think I like the 48 IPA a little better. But the rest of the SN Celeb 12 pack surely won’t be wasted.

    BTW, I saw another brand of pear cider tonight called Original Sin. Maybe I’ll give it a spin, but probably not til it turn warms again. No time soon, IOW.

  26. Tully Says:

    Jewbelation 14. For those who like ass-kicking chewy dark beer and don’t want to chug their way through a sixer to get their buzz on …

  27. Tillyosu Says:

    Tenable to a much broader spectrum of voters and politicians.

    Yes, but a “much broader spectrum of voters and politicians” didn’t have a vote in the Kelo decision. Nine Justices did.

    Right, because you’ve plowed right ahead and ignored my point about justices who don’t fit your narrow and inaccurate formulation wherein every justice is either conservative or liberal

    KK my characterization of the court is pretty widely accepted and uncontroversial.

    As I stated previously, I’m not interested in defending some contention that I didn’t make.

    No, I suspect that you’re simply unwilling to defend a preposterous contention that you did make. Let’s take a look at your actual words:

    I don’t agree that it’s a leftist perpetration. Conservatives just want to blame liberals for this ruling and be blameless.

    It’s a statist (pro-state, anti-individual) perpetration, not a leftist one. And I think liberals and conservatives have conspired together to embed this statist bias. Liberals can’t be blamed for how the deification of economic growth has become ingrained in the rhetoric of both parties. That’s clearly the fault of pro-business conservatives.

    So the Kelo decision is not a “leftist perpetration,” but a “statist perpetration,” and liberals and conservatives “conspired together” to “embed” this statist bias? KK, this is a bunch of vague garbage that allows you to mischaracterize conservative ideology, and pin the the Kelo decision on pro business ideals. But the reality is, IT WAS A 5-4 DECISION. There was no “conspiracy” here. And whether you like it or not, every generally accepted “liberal” member of the Court voted for it, and every generally accepted “conservative” member of the court voted against it.

    Humbug. It has to do amply with both. It’s just that you can only win the argument you have crafted by claiming it must have to do with one or the other, and then picking your favorite boogeyman to blame.

    Why don’t we look at the actual decision? From the majority opinion:

    “… the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution.[emphasis added]

    So apparently, the Court disagrees with you. And who are the boogeymen here? Well, the Justices who voted for the majority, of course.

    But it’s conservatives who held business’s hand and invited them to come in out of the cold.

    The rest of your post was filled with this fluff (eloquent, but ultimately meaningless), so I won’t address it piece by piece. But this little line was particularly egregious. Seriously, what does that even mean? What is the cold, and how did conservatives “hold their hand” and “invite them in?” Are you arguing that conservatives actually argue for increased government/business cooperation and involvement? If so, I hope everyone here finds that argument as laughable as I do. Because to my knowledge, as I’ve stated previously, conservative ideology argues for less government intrusion in the form of regulation and tax policy.

    Maybe that argument has been less effective than conservatives have wanted it to be, and failed to stop opportunistic politicians and businessmen. But to blame conservative ideology itself, let alone pin the Kelo decision on it, requires some seriously twisted logic.

  28. kranky kritter Says:

    So apparently, the Court disagrees with you. And who are the boogeymen here? Well, the Justices who voted for the majority, of course.

    I don’t follow this argument of yours at all here. At best, you’ve left something out. When did Kennedy become a reliable liberal, by the way?

    The rest of your post was filled with this fluff (eloquent, but ultimately meaningless), so I won’t address it piece by piece.

    Nice try, but but I’m quite familiar with “throw sand in the bull’s eyes. You’re ignoring all that you cant refute.

    But this little line was particularly egregious. Seriously, what does that even mean? What is the cold, and how did conservatives “hold their hand” and “invite them in?” But this little line was particularly egregious. Seriously, what does that even mean? What is the cold, and how did conservatives “hold their hand” and “invite them in?”

    Hah. Not for one second do I believe that you don’t know exactly what I mean. Not. One. Second.

    Because to my knowledge, as I’ve stated previously, conservative ideology argues for less government intrusion in the form of regulation and tax policy.

    And when it comes to social issues? What then? Even though there’s a telling contradiction there, it’s a bit of a digression, so we can set it aside. Your remaining problem is the vast chasm between what the ideology argues for, and what conservative politicians deliver in practice.

    The problem for your favored ideology then as now is what happens when folks try to implement it by actively participating in government to “reform” it. All those conservatives try to change government, never accounting for how governing would change them.

    But to blame conservative ideology itself, let alone pin the Kelo decision on it, requires some seriously twisted logic.

    I’m gonna go ahead and simply stick to my guns:

    It’s a statist (pro-state, anti-individual) perpetration, not a leftist one. And I think liberals and conservatives have conspired together to embed this statist bias. Liberals can’t be blamed for how the deification of economic growth has become ingrained in the rhetoric of both parties…You made everyone think shopping malls and condo developments and commercial enterprise were the be-all and end-all. Eager enterprisers have leapt into bed with the government, jumping with both feet….Most big businesses play footsie with the feds and are loving it.

    I expect you will stick to your guns that you and your fellow conservatives of pure ideology are blameless in all this. That’s to be expected. It’s always up to the impure to account for the gap between theory and practice. All the pure every do is repeat their catechism.

    When the Berlin Wall fell, conservatives rightfully crowed, and declared marxism a failed ideology. Liberals whined that it didn’t show that marxism was tried and found wanting, only that it was tried and found to be difficult. Heh.

    And now, small government conservative ideologues are saying much the same thing about electing these politicians who believe in much less government, who can allegedly make the government smaller. This time for sure. These folks failed miserably last time, and in doing so, showed a remarkable lack of understanding of what’s possible and realistic in modern American democratic politics.

    When will I consider believing a tiny bit about how conservatives are going to make our government smaller, smarter and more efficient? The first time that a conservative congressional majority stands tall and actually delivers a tough unpopular vote to, you know, actually make government noticeably smaller.

  29. WHQ Says:

    One needs to keep in mind that Kelo wasn’t a case that the SCOTUS invented. They simply ruled on it. The majority is responsible for that ruling, but they are not responsible for the situation that led to the case coming before them in the first place, including the CT court’s prior ruling. (Does anyone know the ideological breakdown of that court’s majority and minority in that ruling?)

    Try kk’s argument on for size again with that in mind, Tilly. Kelo was about private developers having their way with the help of local government. (If we’re going to throw around generalizations about liberal and conservatives, leaving aside how productive or not that might be, who tends to go on about the wisdom of the private sector and pushing power down to local governments?)

    One result of the ruling is that many states enacted legislation limiting their own powers of eminent domain and those of the local governments in their jurisdictions. That happened because of overwhelming popular backlash. Plenty of liberals were pissed about the Kelo ruling, myself included.

  30. WHQ Says:

    More on liberal criticism of the Kelo decision:

    http://volokh.com/posts/1214267615.shtml

  31. Tillyosu Says:

    @WHQ:

    True, Kelo stemmed from local developers conspiring with local government. But what does that have to do with conservative ideology? Conservatives argue for free markets (as in, limiting government’s role in commerce), not “pro business at any cost” (as KK seeks to to characterize it). These developers and the government may have conspired together under a banner of economic expansion, but I can guarantee you, they didn’t do it under the banner of free markets. And neither did the Connecticut Supreme Court, or the US Supreme Court for that matter.

    Nevertheless, KK wants to simply pin the Kelo decision on conservative ideology, by simplifying it as “pro-business”:

    “Liberals can’t be blamed for how the deification of economic growth has become ingrained in the rhetoric of both parties. That’s clearly the fault of pro-business conservatives.”

    But you see, both Liberals and Conservatives share the goal of economic growth. Where they differ, is in determining what government’s proper role in promoting that economic growth is. Liberals have traditionally wanted to afford government more power in commerce, while conservatives have traditionally opposed more government power in commerce. So my point was that Kelo had absolutely nothing to do with conservative ideology. In fact, if blame lies anywhere, it lies with the liberal ideology that seeks to increase government power in commerce. My supporting evidence? The decision itself, in which every generally accepted liberal on the Court voted for it, and in which every generally accepted conservative voted against it. KK’s evidence? Nada. Zip. Zilch. Empty rhetoric, unsupported assertions, and mischaracterizations.

    In order to blame conservative ideology for the Kelo decision, KK has to be wholly ignorant of the decision itself, or conservative ideology, or both. Or maybe he’s just a “pure” ideologue himself, despite his chest thumping to the contrary.

  32. kranky kritter Says:

    But you see, both Liberals and Conservatives share the goal of economic growth.

    Not until conservatives had great success with this mantra did it become ingrained in popular consciousness to the point of becoming a virtually meaningless mantra. I’ve made this point 3 times now, and you’ve assiduously avoided addressing it.

    Where they differ, is in determining what government’s proper role in promoting that economic growth is. Liberals have traditionally wanted to afford government more power in commerce, while conservatives have traditionally opposed more government power in commerce.

    Yeah. I’ve not disagreed with this at any point. So what? That’s principle and theory. How has it turned out in practice? Some conservatives have indeed traditionally voiced opposition to entangling government and commerce. And then they’ve gone ahead with it, leading the way with things like having industry help craft legislation and write regulations.

    So my point was that Kelo had absolutely nothing to do with conservative ideology.

    I am delighted to acknowledge that it has nothing to do with the narrow version of conservative ideology. Not per se. Please be delighted to finally notice that I’ve not claimed that.

    Conservatives who participate in the democratic processes of our republic, if they wish to lead, MUST be willling to take responsibility for how their ideology has manifested itself in actual practice. You’ve got to do better than “smaller government…this time for sure!”

    Because Americans have every reason at this point in time to believe that the ideology of smaller government, in practice, is not actually going to lead to government that is smaller, but instead to more of the government-business beast that works for the powerful at the expense of the weak. More thriving businesses providing crappier jobs for example. They will keep wondering why it is that every time a conservative politician stands up in practice against “big government ” it has nothing to do with business subsidies or tax breaks or other system gaming by powerful lobbies.

    My supporting evidence? The decision itself, in which every generally accepted liberal on the Court voted for it, and in which every generally accepted conservative voted against it. KK’s evidence? Nada. Zip. Zilch. Empty rhetoric, unsupported assertions, and mischaracterizations.

    You keep whittling away at what you’ve said before in order to give the appearance of having been right all along. Meanwhile, you continue to ignore every strong point I’ve made. Look how you slide right past any attempt at explaining Justice Kennedy’s vote. Look how you repeatedly ignore all I’ve said about the theory-practice gap. Look how tenaciously you cling to the narrow matter of the votes of those justices that fit your model, even though my comments, from beginning to end, concerned the much broader context of how the kelo decision came about as pro-business ideology crept into political processes across the spectrum.

    In order to blame conservative ideology for the Kelo decision, KK has to be wholly ignorant of the decision itself, or conservative ideology, or both. Or maybe he’s just a “pure” ideologue himself, despite his chest thumping to the contrary.

    Look at how you continue to ignore what I’ve repeatedly said. All along I have only maintained that conservatives cannot be held blameless, because of how their ideology has manifested in practice. Somehow this morphs into your contention that I have said that Kelo should be blamed on conservative ideology.

    You appear wholly uninterested in doing anything but winning an argument with some imaginary person. I am happy to score you as the clear winner in this particular argument. However, you’ve repeatedly refuted an argument that I haven’t made. Congratulations?

Leave a Reply


NOTE TO COMMENTERS:


You must ALWAYS fill in the two word CAPTCHA below to submit a comment. And if this is your first time commenting on Donklephant, it will be held in a moderation queue for approval. Please don't resubmit the same comment a couple times. We'll get around to moderating it soon enough.


Also, sometimes even if you've commented before, it may still get placed in a moderation queue and/or sent to the spam folder. If it's just in moderation queue, it'll be published, but it may be deleted if it lands in the spam folder. My apologies if this happens but there are some keywords that push it into the spam folder.


One last note, we will not tolerate comments that disparage people based on age, sex, handicap, race, color, sexual orientation, national origin or ancestry. We reserve the right to delete these comments and ban the people who make them from ever commenting here again.


Thanks for understanding and have a pleasurable commenting experience.


Related Posts: