Those five … are Samuel Alito, Clarence Thomas (who did not speak during the proceedings), Anthony Kennedy, Roberts and Scalia. That leaves a 5-4 vote, with Ginsburg, Sotomayor, Stephen Breyer and John Paul Stevens largely in support of current campaign finance laws. Kennedy dissented in Austin and could turn that dissent into the majority view now… . Kennedy left little question about his view on the matter during today’s oral arguments.

When the Supreme Court asked to re-hear oral arguments in this case, the justices specifically posed the question whether they should overturn one previous campaign finance case, Austin v. Michigan Chamber of Commerce (1990), and the parts of another, McConnell v. Federal Election Commission (2003), that uphold the regulation of corporate spending in elections.

In Austin, the Court found that electioneering communications rules were in the government’s interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”

The Hill reports on the McCain-Feingold press conference outside the Supreme Court following the reargument:

After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.

“The questioning shows a real disconnect, a strong disconnect between the justices and political reality,” McCain said at the press conference.

“I wish that one of the justices who were standing up for people’s First Amendment rights had ever run for county sheriff,” he added. The justices showed an “extreme naïveté of the influence of corporate money and soft money.”

The Supreme Court upheld the McCain-Feingold law several times while former Justice Sandra Day O’Connor served on the court. O’Connor was the Senate majority leader in the Arizona state Senate; the court now has no member who has held elected office.

O’Connor’s departure and the arrival of Alito has shifted the balance of the court against McCain-Feingold, according to people on both sides of the debate.

Feingold warned that, should the court roll back sections of McCain-Feingold by overturning Austin and McConnell, it would leave Congress with “no ability” to reform the campaign finance system.

For me, this is very troubling. The Court may find a way to rule narrowly in this case, without drastically altering the law. But if not, my next post on this topic will be titled Notes from the Corpocracy. The Court’s opinion should appear later this year.

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I watched an excellent debate on these issues on Bill Moyers’ Journal the other night. The transcript is here, or you can watch it. Trevor Potter, an attorney who has filed a friend-of-the-court brief defending the McCain-Feingold legislation observed that oil giant Exxon Mobil, through its political action committee (which accumulates funds through voluntary contributions of shareholders, employees and management) spent about 900 thousand dollars in the last election cycle under the restrictions imposed by current laws. But the company made 45 billion* dollars net profit last year. If even a fraction of that money could be tapped for political campaigns, the megaphone given to such entities would be huge beyond compare.

What if a candidate was going to take positions Exxon Mobil didn’t like, perhaps strongly advocating alternative energy over oil, emphasizing measures against global warming, or increased taxation on oil companies? Exxon could threaten to drown such a candidate in a deluge of attack ads and unlimited funding for their opponent. Candidates not willing to toe the corporate line could be deterred from running.

Potter argues that by law, vast economic power has been given to corporations – power not available to individuals – but it was never intended for corporations to engage in unregulated, unlimited political speech. A corporation’s sole purpose is to maximize profit. It cannot vote, it is not among the constituents represented by elected officials. The First Amendment protects the free speech of PEOPLE, not of these creatures of statute we call corporations.

Noted First Amendment lawyer Floyd Abrams responded with a broad defense of free speech:

And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources … then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.

If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.

Check the transcript for the entirety of the discussion. I’ll try to link a report on the oral arguments taking place today. I agree with Potter’s argument that corporations aren’t people, and their “speech” should be regulated. They have a huge advantage over individuals in amassing funds – we have given them those preferences in a careful balancing of our societal interests, of which economic prosperity is one part. To suddenly allow corporations to also dominate the political money scene - when their interest is not societal betterment but solely profit maximization – would have a negative long term impact on the people of our nation.

B

*Correction: This article originally stated Exxonmobil’s 2008 net profit incorrectly as $85 billion. Is there really much difference?

In Tuesday’s ruling, the Court allowed Prop 8 to stand, but only by limiting its effect to mere symbolism. The important issue was whether Prop 8 embodied a constitutional revision (a substantial change – not allowed outside of a constitutional convention) or a constitutional amendment (a minor change properly the subject of a referendum).

The Court held that Prop 8 was a proper amendment, but (because) it did not alter any substantive rights of same-sex couples (to equal treatment and protection under the law). Prop 8’s only accomplishment was “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state and constitutional law.“  

So it’s semantics. Despite Prop 8, same-sex couples can obtain all the rights and privileges under the law as opposite-sex couples, but the certificate issued by California to commemorate their union will say “Domestic Partnership” or “Civil Union” at the top, rather than “Marriage.” Nothing else – at all – is changed. And the 18,000 couples married prior to this decision? They keep the designation of “Marriage.”

If it walks, talks and looks like a duck … it’s a duck. Distinctions without a difference don’t tend to last, and (considering demographic trends) this distinction probably won’t survive future referenda aimed at eliminating it.

B

Some high-ranking members of the nation’s intelligence services lobbied Obama not to release the memos, or to do so in heavily redacted form. Obama released the memos almost entirely unredacted, but promised that CIA personnel who had in good faith relied on the executive branch Office of Legal Council’s advice that the techniques were legal, would not be prosecuted. This is widely regarded not to rule out prosecution of those who authorized and ordered the use of the techniques. 

The recently leaked International Committee of the Red Cross torture report (complied by cross-confirmation of prisoner interviews, and portrayed by some critics as prisoners’ tall tales) was confirmed nearly line for line by the Bush OLC memos.

The four memos are available for download (pdf) here.

Many reactions from political and legal commentators on the left and right are collected by The Atlantic’s Andrew Sullivan, here (pt 1) (pt 2) (pt 3):

The redaction (blacking-out) of the memos, where present, is sometimes poorly executed. As I read over the memos last night, i noticed several instances of a year being blacked out, followed immediately by the year being visible in a reference to the same document.

Dafna Linzer at ProPublica spotted a more significant error (or intentional slip?) in the redactions, where the name of ‘ghost detainee’ Hassan Ghul, was inadvertently left visible. Ghul’s whereabouts are unknown since 2004. He was not transferred to Guantanamo Bay with 14 “high value” detainees in 2007 as expected by humanitarian groups.

Read Linzer’s article here.

Clearly, this is a huge legal event, and a political firestorm in the making.

B

B

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Court-watchers gleaned the above prediction from the attitudes, questions and statements of the Justices as they interacted with lawyers at the hearing.

The court’s written opinion is expected within 90 days.

B

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Oral arguments are in progress this morning.

B

The opinion is short, and nuanced in the sense that Burris’s request for a writ of mandamus (whereby the court orders a public official to do something she is required by law to do) is denied. The court says the Sec. of State’s signature isn’t needed on the document, so no mandamus is necessary. The upshot is that by losing the mandamus argument, Burris wins. The Sec. of State does NOT have a veto power over the legal act of the Governor.

Gov. Blagojevich’s impeachment has now officially been recommended by an overwhelming majority (114-1) of the Illinois House. The state Senate will now hold a trial and vote whether or not to convict. This vote could occur as soon as February.

I presume at this point that Burris will be awarded his Senate seat, considering the Democratic leadership’s radical change of tune. A possible if far-fetched alternative would be for the Democrats to foot-drag and wait for Blagojevich’s conviction, whereupon the Lt. Governor would take over and appoint someone other than Burris (whereupon we’d have a legal/constitutional dumpster fire on our hands). But given the Democrats’ warming to Burris, this outcome seems exceedingly unlikely.

UPDATE: Burris got in, but now his future is uncertain due to his inability to make consistent statements as to whether he raised money for (now impeached) former Gov. Blago in return for being considered for the Senate seat. It now appears that Burris admits to doing so. 

B

If the Democratic leadership is afraid the mere taint of Blagojevich’s appointing Burris will lose the seat to Republicans in the next election, it occurs to me that a challenge to Burris in the Democratic primary could solve the problem. I haven’t heard this mentioned anywhere, and I wonder why not. If Illinois Democrats want someone other than Burris for their candidate in the next general election (2010), let them express that in the primary. If by that time they want Burris, then more power to Burris. Seems to me this is a better solution than the increasingly silly circus the near-baseless blocking of Burris has become.

B

I’m pretty sure the Democrats’ latest ploy — to deny Burris entry because his certificate wasn’t signed by the Ill. Sec. of State (who refused to sign it, contrary to his statutory duty) – will fall flat. The Sec. of State can’t possibly have a “veto power” over a legal act of the governor. But the Democrats have stronger legs to stand on (none of them necessarily winning). This should be a good show.

B