Today, prior to the opening of their term on the first Monday in October, the Supreme Court will reconsider Citizens United v FEC, 08-205. This is the case involving the uglyunfairlyingdocumentary 90-minute swift-boat-type ad about Hillary Clinton made by Citizens United. We had alerted you to this case previously.
SCOTUS was to rule on this case when their term ended in June, but didn't.
WaPo summarized the current situation brilliantly:
The Supreme Court's unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation's campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.
The court will consider whether the "proper disposition" of a case -- pitting a conservative group's scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws -- requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.
Those two decisions are related to the McCain-Feingold Campaign Finance Reform legislation upheld SCOTUS previously, and Austin v. Michigan Chamber of Commerce, which disallowed corporations from using their own funds to engineer a candidate's success or failure.
The swing votes here are likely Alito and Roberts. Will they be willing to overturn precedent? If so, it would make them the sort of "activist judges" the wingnut right is always railing against. When the right talks "activist judges" they are referring to judges who simply legislate in favour of things the right is against. HOWEVER, what the term really means is using the judicial process to achieve political ends outside of the body of written law. If the Roberts Court ends up overturning precedents upholding restrictions on campaign advertisements financed by corporations and unions, can conservatives ever rail against "judicial activism" with a straight face? Sadly, they can, because the IIE has no shame what so ever.
If the Roberts court overturns the FEC, suddenly it would be possible for corporate soft money to flood elections. While this seems bad for the good guys, as the bad guys tend to have more money, it may not turn out that way. When we looked at the demographics of party registration last year, there was a certain amount of movement of registrations, along with dollars from the GOP to the Democratic Party and its candidates.
People who own and operate large corporations are capitalists, certainly, but they are not stupid. The more wingnut the right becomes, the less likely it is that corporate money will flow to their candidates. Look at how many companies responded to the boycott pressure relative to the Glenn Beck show. I seriously doubt that corporate dollars will flow to people like Jeff Sessions, Tom Coburn, their ilk, and their party if it is a risk to their ability to continue receiving consumer dollars.
So, we'll see later today whether Roberts and Alito are willing to put politics ahead of their obligation as jurists to respect the law and precedent. If they do, there is no doubt that history will not treat them kindly.
This week, Hillary Clinton will be in front of the Supreme Court. Well, not the Secretary of State herself, rather "Hillary: The Movie."
Last year, David Bossie and his group Citizens United made an uglyunfairlyingdocumentary 90-minute swift-boat-type ad about Hillary Clinton. The legal question is whether or not this sort of production violates free speech with respect to the restrictions placed by McCain-Feingold. The FEC ruled:
Under Federal Election Commission regulations, the film qualified as a form of electioneering communications because officials said it was aimed at advocating Clinton's defeat. As such, any advertisements about the film would have to include a political disclaimer and public disclosure of individuals paying for the ads, the FEC said.
So it went to SCOTUS, which refused to hear the case in 2008 because it lacked jurisdiction, and ruled that any injunctions should be issued by lower courts. The case has gone through the process, and tomorrow, will arrive back at SCOTUS. Lower courts have ruled that the film is a violation of McCain-Feingold, and would need to have one of those disclaimers on it saying it was a political film, and identifying those who funded it.
The case is Citizens United v FEC, 08-205. You can see the specific legal questions here.
The questions are important not just from the perspective that Citizens United plans to make more of these fabrication films, but also what the implications may be for people who make actual truth-filled documentaries that could be considered political. Like Michael Moore. If the question was "truth" there is no question that Citizens United should be found guilty of slander, libel, fraud and everything else that could be thrown at them. But what about the right to tell the truth? The SCOTUS outcome can affect both.
We start in Washington, D.C. where yesterday, Karl Rove didn't show up to answer questions. I'm shocked. Round up the usual suspects. At least he didn't flee the country this time.
In New York, AG Andrew Cuomo has subpoenaed John Thain to ask about those Merrill bonuses from last December. He'll likely ask who received how much. He may will bring criminal fraud charges under the Martin Act. If this works, you can thank Eliot Spitzer for the ground work.
And while we're on the subject of banks, there are some who consider all the major bankers to be some form of criminal. Think "Ponzi Scheme" as it relates to liars' loans, credit swaps and derivatives. From the left coast, we hear from Virginia Hammerness, granddaughter of the founder of Bank of America. I like her use of the word "idiot", and I didn't know about the 1906 loans -- imagine if things worked that way today. You can view the video here, since there wasn't a "grab-able" link.
And our final criminal of the day is U.S. District Judge Samuel Kent. He was to go on trial as the first Federal judge ever accused of sex crime. (Doesn't mean he was the first guilty one, just the first one charged.) But
No means no — even if you are a federal judge with a lifetime appointment and a larger-than-life ego.
That is but one lesson in the ugly and utterly avoidable case of United States of America v. Samuel B. Kent. On Monday, Kent, a U.S. district judge since 1990, pleaded guilty to lying to investigators about sexually abusing his secretary. In exchange, federal prosecutors dropped five sex-crime charges alleging he groped two women. Kent could have faced up to life in prison if convicted of all charges, but prosecutors say they will not seek more than three years in prison for Kent, who is 59. Sentencing is scheduled for May 11.
Comparatively, it would appear that the state of Texas likes to execute people. In a statistical way. See for yourself:
Total US (Federal and state) executions 1976 - now: 1150
Texas executions 1976 - now: 431 (37%)
Total US executions 2008: 37
Texas executions 2008: 18 (49%)
Total US executions 2009: 14
Texas executions 2009: 8 (57%)
One of those executions in 2007 was because the chief judge of Texas' highest criminal court, Sharon Keller of the Court of Ciminal Appeals, went to go meet a home repairman instead of allowing appeals to be filed in the case of Michael Richard.
Thursday the Texas Commission on Judical Conduct charged Keller with incompetence and casting public discredt on the judiciary.
If you go through the list of all sub-cabinet positions for all of the departments and all of the Executive Office positiions that require Senate confirmation, you get over 300 positions requiring Senate approval. That number ignores all of the U.S Attorney slots, all of the U.S. Marshall slots, all of the Ambassadors, and any judicial vacancies left hanging. While I would like to see at least my local U.S. Attorney and my local U.S. Marshall slots filled (and any local judicial vacancy), I am going to limit this post to the sub-cabinet positions. (Obviously filling the Commerce Secretary slot is also urgent.) Clearly, it takes time to fill all of these positions and there is a lot of discretion given to the Secretaries to fill the sub-cabinenet posts in their Department. But what follows are the positions that I think need to be filled ASAP (and I hope for comments as to your thoughts on which ones need to be top priority).
Executive Office -- A lot of the positions remaining to be filled are assistants to people already named. The one major office without a director named is the Office of Drug Control Policy. While this office does some "coordination" of federal drug policy, it is not a real urgent position as it is more a podium-type post that does data collection than a position that has real power.
State Department -- Arguably, most of the sub-cabinet positions in this Department are urgent. However, I would emphasize the following positions: Coordinator for Counter-Terrorism, Assistant Secretary for Near Eastern Affairs, and Assistant Secretary for South and Central Asian Affairs. These are the hot spots that are currently boiling over and we need someone with specific responsibility for them.
Treasury Department -- Again, you have numerous positions that could be called urgent. I would emphasize four as needing to be filled yesterday: Assistant Secretary for Financial Institutions, Assistant Secretary for Financial Markets, Assistant Secretary for Economic Policy, and Assistant Secretary for Tax Policy. With the stimulus bill working its way through and decisions to be made about the remaining TARP funds, you need someone with direct responsibility for these issues.
Defense Department -- While perhaps not the most impotant given the joint command structure, I would still emphasize filling the positions of Secretary of the Army, Secretary of the Navy, and Secretary of the Air Force. Those folks are the main civilian go-betweens for each of the individual branches.
Ms. Currie's title is "U.S. District Judge" and yesterday, she did her best to support the ideal of the separation of Church and State. It was a great action on the part of a judge for direct affirmation of the U.S. Constitution.
Here's the back story. That bastion of rights, freedom and Republicanism, South Carolina, decided that a good license plate would look like this:
Yup, that's right, "I Believe", with an implied endorsement of a Christian Church. (Note the cross and the stained glass window.)
A number of people felt that states are not supposed to endorse one religion over another, or any religion, for that matter, and sued. Yesterday, Judge Currie said the case must be heard in court, and issued an injunction so that the state cannot take any more orders for the plates. (They had sold 400 of them.)
We will keep you updated as the case proceeds through the court system.
