Tuesday, June 28, 2011
This is was going to be a post about a factual error I think thought Justice Kagan made in her dissent in McComish.
Yesterday the Supreme Court decided McComish v Bennett pdf, the Arizona matching funds case. Justice Roberts wrote for the court and said the usual nice things about elections are free speech, and we already decided this issue in Davis anyway, and it's the Ninth Circuit so we'll just overrule them as usual.
What makes the case significant is its dissent. See McConnell.
Hasen is calling the case Arizona Free Enterprise. That's a nice touch for IJ to have their case called Free Enterprise.
I prefer FEC v Bennett. McComish sounds like a WB sitcom about a cop who's just one year away from retirement. Hayward prefers AFEFCPAC.
The dissent by Justice Kagan is as confrontational as one by Scalia. It shows that First Amendment protection of election speech is just one vote away from tragedy. Future cases that lose any of the Roberts-Kennedy-Scalia-Thomas-Alito coalition can lose. And this is not an especially cohesive bunch; look at the lineups on the other cases decided yesterday. So we are still in a world of what Hasen has called indeterminacy.
One thing neither side really discusses is stare decisis. The ninth circuit and the dissent both try to distinguish Davis on what I think are very shaky grounds.
Davis is to McComish as Heller is to McDonald. No one on the losing side is saying, we don't like the result, but we've already decided this issue,and should move on.
This approach is likely to be thrown back in their faces when at some future point the conservative majority invalidates some favorite precedent of the liberal wing.
There was a phrase that jumped out at me from the Kagan dissent. Ithink thought she was factually wrong about what the court has held about disclaimers.
On Page 58 of the slip opinion, in number two of part B, she states,
"Number two: Our decisions about disclosure and dis-claimer requirements show the Court is wrong. The Court has repeatedly declined to view these requirements as a sub-stantial First Amendment burden, even though they dis-courage some campaign speech."
OK, this is a slightly different claim than I thought she was making. She isn't saying the Court has never viewed disclaimer requirements as a substantial burden, just that they haven't always done so. That is correct; in McConnell and Citizens United flawed disclaimer arguments that failed were raised,and treated somewhat dismissively.
What does she say next?
She cites disclosure cases. She does cite Citizens United,and that single example might be enough to prove her point. OK, I was wrong,and Kagan was not wrong, and this post has now lost its focus.
On the other hand, her point is still open to criticism. Talley v California, 1960, is outside the post-Buckley time frame she is discussing. But in McIntyre v Ohio, 1995, the court did apply strict scrutiny in striking down a disclaimer rule. (One that applied to candidates, not just little old ladies named Margaret.)
In Victoria Buckley v ACLF, 1999, all nine members of the court found the disclaimer rule unconstitutional, in a variety of separate opinions. Justice Thomas, concurring, discussed disclaimer rules as a severe burden triggering strict scrutiny under the Norman v Reed framework.
See also Watchtower v Stratton.
So Justice Kagan's discussion of disclaimer cases is highly selective and ignores the main thrust of the court's cases during the period she is discussing.
That 4 members of today's court are willing to selectively edit the court's own history is not a good sign for the ongoing battle to finally enforce the civil rights victory Manual Talley won 51 years ago.
My failed attempts to get somewhere on this myself over the past 15 years [Stewart v Taylor, Anonymous v Delaware, Majors v Abell] suggest that I should work harder to find a competent ally to work with, such as the Institute for Justice.
Yesterday the Supreme Court decided McComish v Bennett pdf, the Arizona matching funds case. Justice Roberts wrote for the court and said the usual nice things about elections are free speech, and we already decided this issue in Davis anyway, and it's the Ninth Circuit so we'll just overrule them as usual.
What makes the case significant is its dissent. See McConnell.
Hasen is calling the case Arizona Free Enterprise. That's a nice touch for IJ to have their case called Free Enterprise.
I prefer FEC v Bennett. McComish sounds like a WB sitcom about a cop who's just one year away from retirement. Hayward prefers AFEFCPAC.
The dissent by Justice Kagan is as confrontational as one by Scalia. It shows that First Amendment protection of election speech is just one vote away from tragedy. Future cases that lose any of the Roberts-Kennedy-Scalia-Thomas-Alito coalition can lose. And this is not an especially cohesive bunch; look at the lineups on the other cases decided yesterday. So we are still in a world of what Hasen has called indeterminacy.
One thing neither side really discusses is stare decisis. The ninth circuit and the dissent both try to distinguish Davis on what I think are very shaky grounds.
Davis is to McComish as Heller is to McDonald. No one on the losing side is saying, we don't like the result, but we've already decided this issue,and should move on.
This approach is likely to be thrown back in their faces when at some future point the conservative majority invalidates some favorite precedent of the liberal wing.
There was a phrase that jumped out at me from the Kagan dissent. I
On Page 58 of the slip opinion, in number two of part B, she states,
"Number two: Our decisions about disclosure and dis-claimer requirements show the Court is wrong. The Court has repeatedly declined to view these requirements as a sub-stantial First Amendment burden, even though they dis-courage some campaign speech."
OK, this is a slightly different claim than I thought she was making. She isn't saying the Court has never viewed disclaimer requirements as a substantial burden, just that they haven't always done so. That is correct; in McConnell and Citizens United flawed disclaimer arguments that failed were raised,and treated somewhat dismissively.
What does she say next?
She cites disclosure cases. She does cite Citizens United,and that single example might be enough to prove her point. OK, I was wrong,and Kagan was not wrong, and this post has now lost its focus.
On the other hand, her point is still open to criticism. Talley v California, 1960, is outside the post-Buckley time frame she is discussing. But in McIntyre v Ohio, 1995, the court did apply strict scrutiny in striking down a disclaimer rule. (One that applied to candidates, not just little old ladies named Margaret.)
In Victoria Buckley v ACLF, 1999, all nine members of the court found the disclaimer rule unconstitutional, in a variety of separate opinions. Justice Thomas, concurring, discussed disclaimer rules as a severe burden triggering strict scrutiny under the Norman v Reed framework.
See also Watchtower v Stratton.
So Justice Kagan's discussion of disclaimer cases is highly selective and ignores the main thrust of the court's cases during the period she is discussing.
That 4 members of today's court are willing to selectively edit the court's own history is not a good sign for the ongoing battle to finally enforce the civil rights victory Manual Talley won 51 years ago.
My failed attempts to get somewhere on this myself over the past 15 years [Stewart v Taylor, Anonymous v Delaware, Majors v Abell] suggest that I should work harder to find a competent ally to work with, such as the Institute for Justice.
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