Alito: 'Simply Not True'
In "The First Amendment Often Protects Bribes More Than Speech!!" I reviewed how the current Supreme Court interpretation of the First amendment has become so distorted that it is doing the opposite of what it should be doing by any reasonable interpretation.
The fact that they even chose to hear this particular case, McCutcheon v. Federal Election Commission oral arguments, while declining to hear other cases that might make the first amendment apply to all people equally implies their own intentions. A closer look at their arguments might imply even more. The following are a few excerpts from oral arguments. They're followed up by a few comments that weren't raised by a, well, lessor known, um, Supreme Court Justice, sort of.
In all fairness these are taken out of context and it might be better if you read them in their proper context, assuming you haven't already; however if you do you might agree that most of it was a waste of time and they don't seem to be trying to address the most important issues.
JUSTICE SCALIA: …… , I ask myself, why would -- why would members of
Congress want to hurt their political parties? And I
answer -- I answer to myself -
(Laughter.) .....
JUSTICE SCALIA: And that does not -- that does not evoke any gratitude on the part of the people? I mean, if gratitude is corruption, you know, don't those independent expenditures evoke gratitude? And is -- is not the evil of big money -- 3.2 million, an individual can give that to an independent PAC and spend it, right? ......
JUSTICE ALITO: What troubles me about your -- what troubles me about your argument, General Verrilli, and about the district court's opinion is that what I see are wild hypotheticals that are not obviously plausible or -- and lack, certainly lack any empirical support.
Now, you've -- you've chosen to use the same hypothetical the district court used about the $3.5 million contribution that would be -- that could be given by a coordinate -- which involves all of the House candidates and all of the Senate candidates in a particular year getting together with all of the -- all of the parties' national party committees, plus all of the State party committees, and then -- and that's how you get up to the $3.5 million figure; isn't that right?
GENERAL VERRILLI: Yes.
JUSTICE ALITO: Now, how -- how realistic is that? How realistic is it that all of the State party committees, for example, are going to get money and they're all going to transfer it to one candidate? For 49 of them, it's going to be a candidate who is not in their own State. And there are virtually no instances of State party committees contributing to candidates from another State.
And the other part of it that seems dubious on its face is that all of the party -- all of the candidates for the House and the Senate of a particular party are going to get together and they are going to transfer money to one candidate. There really -- you cited in your brief the example -- best examples, I take it, of -- of contributions from some candidates to other candidates. They are very small. Isn't that true?
GENERAL VERRILLI: Yes. But I think there are two -- Justice Alito, I think that, with all due respect, I think the point Your Honor is making confuses two different ways in which these laws combat the risk of corruption. .......
JUSTICE ALITO: Unless the money is transferred to -- you have to get it from the person who wants to corrupt to the person who is going to be corrupted. And unless the money can make it from A to B, I don't see where the quid pro quo argument is.
GENERAL VERRILLI: Well, I think that the -- I think that the way these joint fundraising committees work is you hand over a single check to a candidate who solicits it. Now, it could be any candidate who sets up a joint fundraising committee, says give to me and give to the rest of my team. And that's -- so the handing over the check to that candidate is a -- seems to me creates a significant risk of indebtedness on the par of that candidate, even though a lot of the money is flowing through to others.
In addition, the party leaders are often going to be the ones who solicit those contributions, and they're going to have a particular indebtedness to candidates because, of course, their power, their authority depends on the party retaining or -- or gaining a majority in the legislature, and so they're going to feel a particular sense of indebtedness, that this person is helping not only them, but everybody - ......
JUSTICE SCALIA: And -- and what about newspapers that -- that spend a lot of money in endorsing candidates and promoting their candidacy. suppose, you know, you -- you have to put in that money, too. That is money that is directed to political speech.
When you add all that -- add -- when you add all that up, I don't think 3.5 million is a heck of a lot of money - ……
CHIEF JUSTICE ROBERTS: No, but that wouldn't -- doesn't normally get you very far on the First Amendment. You could not have a rule that says the -- the Post or the New York Times can only endorse nine candidates - …..
JUSTICE ALITO: I just don't understand that. You mean at the time when the person sends the money to this hypothetical joint fundraising committee there is a corruption problem immediately, even though -- what if they just took the money and they burned it? That would be a corruption problem there? ……
JUSTICE ALITO: When does the corruption - yes. When does the corruption occur? It occurs when it's transferred to -- to the person who has power and want -- and they want to corrupt. …… Complete McCutcheon v. Federal Election Commission oral arguments PDF
(Laughter.) .....
JUSTICE SCALIA: And that does not -- that does not evoke any gratitude on the part of the people? I mean, if gratitude is corruption, you know, don't those independent expenditures evoke gratitude? And is -- is not the evil of big money -- 3.2 million, an individual can give that to an independent PAC and spend it, right? ......
JUSTICE ALITO: What troubles me about your -- what troubles me about your argument, General Verrilli, and about the district court's opinion is that what I see are wild hypotheticals that are not obviously plausible or -- and lack, certainly lack any empirical support.
Now, you've -- you've chosen to use the same hypothetical the district court used about the $3.5 million contribution that would be -- that could be given by a coordinate -- which involves all of the House candidates and all of the Senate candidates in a particular year getting together with all of the -- all of the parties' national party committees, plus all of the State party committees, and then -- and that's how you get up to the $3.5 million figure; isn't that right?
GENERAL VERRILLI: Yes.
JUSTICE ALITO: Now, how -- how realistic is that? How realistic is it that all of the State party committees, for example, are going to get money and they're all going to transfer it to one candidate? For 49 of them, it's going to be a candidate who is not in their own State. And there are virtually no instances of State party committees contributing to candidates from another State.
And the other part of it that seems dubious on its face is that all of the party -- all of the candidates for the House and the Senate of a particular party are going to get together and they are going to transfer money to one candidate. There really -- you cited in your brief the example -- best examples, I take it, of -- of contributions from some candidates to other candidates. They are very small. Isn't that true?
GENERAL VERRILLI: Yes. But I think there are two -- Justice Alito, I think that, with all due respect, I think the point Your Honor is making confuses two different ways in which these laws combat the risk of corruption. .......
JUSTICE ALITO: Unless the money is transferred to -- you have to get it from the person who wants to corrupt to the person who is going to be corrupted. And unless the money can make it from A to B, I don't see where the quid pro quo argument is.
GENERAL VERRILLI: Well, I think that the -- I think that the way these joint fundraising committees work is you hand over a single check to a candidate who solicits it. Now, it could be any candidate who sets up a joint fundraising committee, says give to me and give to the rest of my team. And that's -- so the handing over the check to that candidate is a -- seems to me creates a significant risk of indebtedness on the par of that candidate, even though a lot of the money is flowing through to others.
In addition, the party leaders are often going to be the ones who solicit those contributions, and they're going to have a particular indebtedness to candidates because, of course, their power, their authority depends on the party retaining or -- or gaining a majority in the legislature, and so they're going to feel a particular sense of indebtedness, that this person is helping not only them, but everybody - ......
JUSTICE SCALIA: And -- and what about newspapers that -- that spend a lot of money in endorsing candidates and promoting their candidacy. suppose, you know, you -- you have to put in that money, too. That is money that is directed to political speech.
When you add all that -- add -- when you add all that up, I don't think 3.5 million is a heck of a lot of money - ……
CHIEF JUSTICE ROBERTS: No, but that wouldn't -- doesn't normally get you very far on the First Amendment. You could not have a rule that says the -- the Post or the New York Times can only endorse nine candidates - …..
JUSTICE ALITO: I just don't understand that. You mean at the time when the person sends the money to this hypothetical joint fundraising committee there is a corruption problem immediately, even though -- what if they just took the money and they burned it? That would be a corruption problem there? ……
JUSTICE ALITO: When does the corruption - yes. When does the corruption occur? It occurs when it's transferred to -- to the person who has power and want -- and they want to corrupt. …… Complete McCutcheon v. Federal Election Commission oral arguments PDF
As indicated in the previous post and some of Solicitor General Donald Verrilli's or Stephen Breyer's comments raise a few legitimate issues but even they don't do nearly as good a job addressing the simple points that could have been made. This often appears to be something that they handle more as a joke, as indicated when everyone laughs at Antonin Scalia's bad jokes.
These Supreme Court Justices seem to be bending over backwards to avoid understanding anything that they don't want to understand. They seem to make it clear that those with money should have unlimited amounts of free speech while those that don't buy up speech should be relegated to speaking only in Siberian free speech zones!
If they wanted to they could easily have made a much better case like, well, the following Justice from my imagination; I had to use my imagination since none of the people from the political system are even trying.
Justice I-actually-try: Anyone that takes a relatively quick look at the speech that is coming from the commercial media might see that it is controlled by a relatively small percentage of the public and that they only present the views of those that can afford to pay for it.
It wouldn't be hard to cite a relatively small set of examples that would indicate that paid speech is drowning out more sincere speech and the claim that "money equals speech" and should be protected is a major part of the reason for this problem.
The commercial media is full of propaganda ads from the oil companies that is now "protected free speech." Some of these ads, like the ones promoting clean coal or safe technologies for fracturing to get natural gas might give people the impression that the oil companies are leaders in the environmental movement. Much more reliable reports about the dangers of these energy sources rarely get any media attention except for those that take the time to look for other sources.
Protesters who try to draw more attention to this are routinely arrested on trivial charges like trespassing.
Many retailers or other corporations, including Wal-Mart and insurance companies, also promote an enormous amount of propaganda telling the public about how good they are for society. Wal-Mart's ads about how fresh their fruit is because it is bought locally, how happy their employees are with their benefits, and how efficient their distribution system is are typical examples. Much less expensive and more accurate investigation that checks the facts routinely indicates these ads are all distortions if not outright lies; but very few people hear about that.
Once again protestors who try to tell the public the truth are routinely arrested on trivial charges like trespassing.
The money for these ads, whether it is for the oil companies, Wal-Mart or insurance companies is a business expense. This expense has to be passed on to consumers if they want to make a profit. If this wasn't the case then where would the money come from for these deceptive propaganda pieces?
The honorable Justice Scalia once wrote, "Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate." (Citizens United, Appellant v. Federal Election Commission)
I refer to him as honorable because it is polite in a civilized society to talk that way, not necessarily because I think he has done anything honorable or that this statement is all that honorable; it is similar to when we call elder statesmen honorable even when they're promoting wars based on lies. It is apparently dishonorable or impolite to point this out but that is besides the point.
The honorable Justice Scalia fails to mention the fact that consumers, workers and the rest of society all contribute to the activities that make corporations successful but the decisions about their speech is made by only a small minority of people that control the corporations without consideration for anyone else.
If consumers asked gas stations, department stores, or insurance companies to deduct the portion of their bills that goes towards speech they don't agree with, due to the fact that it is false or supports a political agenda they disagree with, would corporations be obliged to either do so or allow them the option of influencing corporate speech?
If they tried to make such a request would they be told they had to either pay full price including the portion that goes towards speech or go without?
If the consumer responded to this by speaking out would they be arrested for trivial reasons like trespassing?
The honorable Justice Scalia also said, "I assume that a law that only—only prohibits the speech of 2 percent of the country is okay." the country is okay," in a somewhat sarcastic manner that was corrected quickly by Ms. Murphy. Clearly the honorable Justice Scalia doesn't seem to think that the top "2 percent" should have any interference in their right to free speech as long as it is paid for; but the vast majority of the public shouldn't have nearly as much protection even though the cost of this speech is passed on to them one way or another.
As it stands the top one percent or less have most if not all control of speech that has the capacity to reach the entire nation. At the same time the majority of the public only have a right to speak where a small number of people can listen and if they attempt to partially reduce this inequality they run the risk of being thrown in jail for trespassing or disorderly conduct.
Would the honorable Justice Scalia "assume that a law that only—only prohibits the speech of 98 percent of the country is okay?"
To the best of my knowledge there is no such law; however the way the current system is implemented they manage to get the same results in practice.
If we tried we could find cases to hear that would attempt to reduce this inequality instead of searching for cases that will help increase it.
We have previously made statements about laws that Congress could pass to address problems when a judicial interpretation wasn't adequate; we could do it again so that it could draw more attention to this problem if we wanted to.
It wouldn't be hard to come up with something better if we actually tried to do our job.
It wouldn't be hard to cite a relatively small set of examples that would indicate that paid speech is drowning out more sincere speech and the claim that "money equals speech" and should be protected is a major part of the reason for this problem.
The commercial media is full of propaganda ads from the oil companies that is now "protected free speech." Some of these ads, like the ones promoting clean coal or safe technologies for fracturing to get natural gas might give people the impression that the oil companies are leaders in the environmental movement. Much more reliable reports about the dangers of these energy sources rarely get any media attention except for those that take the time to look for other sources.
Protesters who try to draw more attention to this are routinely arrested on trivial charges like trespassing.
Many retailers or other corporations, including Wal-Mart and insurance companies, also promote an enormous amount of propaganda telling the public about how good they are for society. Wal-Mart's ads about how fresh their fruit is because it is bought locally, how happy their employees are with their benefits, and how efficient their distribution system is are typical examples. Much less expensive and more accurate investigation that checks the facts routinely indicates these ads are all distortions if not outright lies; but very few people hear about that.
Once again protestors who try to tell the public the truth are routinely arrested on trivial charges like trespassing.
The money for these ads, whether it is for the oil companies, Wal-Mart or insurance companies is a business expense. This expense has to be passed on to consumers if they want to make a profit. If this wasn't the case then where would the money come from for these deceptive propaganda pieces?
The honorable Justice Scalia once wrote, "Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate." (Citizens United, Appellant v. Federal Election Commission)
I refer to him as honorable because it is polite in a civilized society to talk that way, not necessarily because I think he has done anything honorable or that this statement is all that honorable; it is similar to when we call elder statesmen honorable even when they're promoting wars based on lies. It is apparently dishonorable or impolite to point this out but that is besides the point.
The honorable Justice Scalia fails to mention the fact that consumers, workers and the rest of society all contribute to the activities that make corporations successful but the decisions about their speech is made by only a small minority of people that control the corporations without consideration for anyone else.
If consumers asked gas stations, department stores, or insurance companies to deduct the portion of their bills that goes towards speech they don't agree with, due to the fact that it is false or supports a political agenda they disagree with, would corporations be obliged to either do so or allow them the option of influencing corporate speech?
If they tried to make such a request would they be told they had to either pay full price including the portion that goes towards speech or go without?
If the consumer responded to this by speaking out would they be arrested for trivial reasons like trespassing?
The honorable Justice Scalia also said, "I assume that a law that only—only prohibits the speech of 2 percent of the country is okay." the country is okay," in a somewhat sarcastic manner that was corrected quickly by Ms. Murphy. Clearly the honorable Justice Scalia doesn't seem to think that the top "2 percent" should have any interference in their right to free speech as long as it is paid for; but the vast majority of the public shouldn't have nearly as much protection even though the cost of this speech is passed on to them one way or another.
As it stands the top one percent or less have most if not all control of speech that has the capacity to reach the entire nation. At the same time the majority of the public only have a right to speak where a small number of people can listen and if they attempt to partially reduce this inequality they run the risk of being thrown in jail for trespassing or disorderly conduct.
Would the honorable Justice Scalia "assume that a law that only—only prohibits the speech of 98 percent of the country is okay?"
To the best of my knowledge there is no such law; however the way the current system is implemented they manage to get the same results in practice.
If we tried we could find cases to hear that would attempt to reduce this inequality instead of searching for cases that will help increase it.
We have previously made statements about laws that Congress could pass to address problems when a judicial interpretation wasn't adequate; we could do it again so that it could draw more attention to this problem if we wanted to.
It wouldn't be hard to come up with something better if we actually tried to do our job.
Even the Justices and Solicitor General that did make some constructive comments didn't do nearly as good a job as they could have if they simply tried to. They're often much more concerned about being polite to those that are corrupting the system than they are to addressing the problems and they often come up with more complicated cases to make their points whether it is to improve the system or to hide the fact that they're doing the opposite; more often they do the later and this is made partially easier by the bad job those defending it do.
That doesn't even take into consideration what the honorable Justice Thomas had to say as indicated in the following quotes:
Justice Thomas:
Oops I forgot he rarely ever speaks at all, and this was indicated once again. However he can almost always be counted on to vote with his constituents, which doesn't seem to include the public. The same seem to go for the so-called liberal Supreme Court Justices who all supported Monsanto along with the conservatives.
Ironically when the honorable Justice Roberts said "To the extent the State of the Union has denigrated into a political pep rally, I'm not sure why we're there," he was right although his politics are as bad if not worse than Obama's.
The Very Troubling Partisanship of John Roberts
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