There's an interesting convergence of politics and law going on right now around the Pandora's box that is campaign finance. Round II of the Citizens United case will likely be SpeechNow vs. the FEC. In this round, the issue is the relationship between the law, 527 tax exempt organizations, and independent expenditures (money spent for direct mail, TV, radio and internet advertising).

The Players

SpeechNow.org is a group formed with the purpose to oppose candidates who, in their view, act to squelch free speech. The named principals are David Keating (Club for Growth Executive Director), Edward Crane (Cato Institute founder), Fred Young (Cato Institute board member), Brad Russo and Scott Burkhardt.

Their stated purpose and goal

The stated purpose of SpeechNow.org is as follows (from appellate court opinion here):

...to promote the First Amendment rights of free speech and freedom to assemble by expressly advocating for federal candidates whom it views as supporting those rights and against those whom it sees as insufficiently committed to those rights.

To illustrate how they proposed to carry out their purpose, SpeechNow.org supplied ad copy from ads they had planned to run in 2008 against Republican Congressman Dan Burton and Democratic Senator Mary Landrieu. Examples were carefully chosen to demonstrate their non-partisan bent. Sample copy for one television ad read this way:

[P]oliticians like Dan Burton don’t like free speech. Burton voted for a bill to restrict the speech of many public interest groups. Under this bill you could go to jail for criticizing politicians.

Hey Dan Burton. This is America, not Russia.

But we still have the right to vote. Say no to Burton for Congress. Say no to censorship.

And against Landrieu:

“Our founding fathers made free speech the First Amendment to the Constitution. Mary Landrieu is taking that right away. Don’t let her do it again.”

What's at stake

Non-profit groups organized as 527 organizations have some specific rules to limit the amounts an individual may contribute. Currently the annual maximum contribution from an individual is $5,000. SpeechNow argues that because contributions are being passed through the organization as "independent expenditures" (e.g., funds used to pay for direct mail campaigns, TV, radio and internet advertising) the limits shouldn't apply, just as they do not apply to corporate "persons" in the Citizens United case.

If SpeechNow.org is successful, any group who spends money on direct mail, TV, radio or internet advertising can use a non-profit entity to make unlimited contributions. They further object to the reporting requirements imposed on 527 organizations, and are seeking to have those abolished.

The political stakes

The line SpeechNow.org is walking is extraordinarily fine. They claim to be an issue-focused group (i.e., free speech), but it's clear they intend to target candidates and pour money into those targeted districts to influence the outcome of elections.

It's equally clear (to me, at least) that this particular group will be completely partisan about who they apply their "free speech" standards to, which raises this question for me: What bright-line standard could be applied to ad copy to distinguish one ad as an "issues ad" from another that's a "candidate ad"? The two are inextricably linked. I can't see where any group worth their salt would buy ads to say "Vote Candidate X out of office. That is all."

Ads generally wrap around an issue with the goal of defeating the candidate, while promoting the issue as a second outcome. If SpeechNow.org succeeds, what we will have here is direct advocacy for or against candidates by groups allowed unlimited donations for buying such advertising while eliminating all disclosure as to who the buyers are.

As one who spends a lot of time following campaign money, I see this as a disaster.

This case is also about to become a political football in the pending nomination of Elena Kagan.

SCOTUSblog:

The FEC and the U.S. Solicitor General’s office have not yet decided whether to take to the Supreme Court the FEC’s unanimous loss in the D.C. Circuit Court in the SpeechNow case. While the time to file a challenge before the Justices does not expire until late June, the motion filed Friday in U.S. District Court will put added pressure on government officials to make up their minds on the next step. They must respond to the new motion in 14 days, for example — that is, before the end of this month.

One of the issues surrounding Kagan's confirmation is the question of her recusal in cases where she has acted on behalf of the United States as Solicitor General. Forcing this case to the front seems to be pure politics to me. If she has acted on this case as Solicitor General, she will not be able to hear it as a Supreme Court Justice.

Given the decision of the appellate court and the Supreme Court in the Citizens United matter, it may not matter anyway. It could be that they've won this outright already, in which case we all lose.

Here's what concerns me the most. Even if we have publicly financed elections, this kind of activity will not stop. Voters will be barraged with ad after ad after ad for a candidate, against a candidate, via a known organization or via an astroturf group. While public financing will certainly separate candidates one degree or so from the money, the inarguable influence of these independent expenditures will still hold sway with the candidate and with the public and continue to subvert the process.

Really, the only hope we have for free and fair elections is an educated, engaged electorate with the ability to discern the difference between candidates without 30 second sound bites or propaganda films to promote or defeat them.

Judson Philips of Tea Party Nation sent out an email blast this morning to mobilize members against Elena Kagan. While it's not a big surprise to discover they object to anything Obama does, their logic on this one is surprisingly thin.

They oppose Kagan on three points. The first point mirrors the objections of the left: Kagan does not have time on the bench. Never mind that she would have been an appellate court judge if Clinton's nominees had not been blocked by Republicans.

Their second point of opposition may be the most laughable:

Second, Obama has chosen someone who is as radical as he is. Remember, Obama wants to transform this country from a right of center country, to a European style socialist country. He knows the congress is going to go from Democratic controlled to either Republican controlled or split evenly. To get much of his agenda enacted or saved, he is going to need control of the judiciary.

Oh, from Philips' keyboard to the left's ears. Don't we all just wish Obama were the radical they say he is. Glenn Greenwald's case against Kagan centers on her "centerness", her lack of a strong record of progressive statements, writings, and papers. Greenwald indicts thus:

Acquiescing to a Kagan nomination would mean accepting someone who could easily move well to the Right of Stevens, thus taking the whole Supreme Court with her.

So, we have TeaParty Nation saying she's radical and Glenn Greenwald concerned that she's conservative. I could be wrong here, but I'm going out on a limb and saying it's probably neither of the above.

Point three is really the heart of the matter, and it has absolutely nothing to do with Elena Kagan at all. It is all her age, and the idea that she could serve on the court for a very long time to come.

Right now, the court is divided, with a minority liberal block consisting of Stevens, Breyer, Ginsburg and Sotomayor. Stevens is retiring. Breyer and Sotomayor are young and healthy, by Supreme Court standards. Ginsburg has had some health problems. By replacing Stevens with Kagan, there will be at least three liberal members on the court for the next 20 years. If Ginsburg were to retire, he could solidify the liberal wing of the court in place for the next 20 years.

The Conservative wing of the court is made of of Chief Justice Roberts, Justices Alito, Thomas and Scalia. Justice Kennedy remains a "swing" vote.

Kennedy and Scalia are both 74. Age is a consideration and if one of them were to leave the court, O

bama could have the opportunity to remake a liberal court that would severe our judicial system from all remaining ties to the Constitution.

Hyperbole, much? But here is the essence of the fear. Conservatives have tried to stack the Supreme Court with ideologues and they've very nearly succeeded. The thorn in the teabaggers' side is the possibility that Barack Obama will leave as his most lasting legacy a Supreme Court which actually rules on questions of law rather than ideology.

That would be a very, very good thing for us, and definitely frustrate the extremists who see the Supreme Court as their ticket to time travel back to the 1800s.

One month after Republican Governors Bob McDonnell and Haley Barbour celebrated a slavery-free version of the Confederacy, the GOP is defending slavery in order to attack President Obama's Supreme Court nominee, Elena Kagan. In an RNC memo released today, Republicans blast the former clerk to Thurgood Marshall for concurring with her boss' assessment that the Constitution as originally conceived and drafted was "defective." Of course, that's just the latest rotted carcass of the Confederacy to be exhumed as a Republican talking point.

Unable to prevent three-fifths of the Senate from voting on Kagan's nomination, Republicans instead are suggesting the Founders' three-fifths of a person standard for counting slaves was no defect. As the Hill reported, the RNC, including Michael Steele, objects to Kagan's citation of a 1987 Marshall speech in a 1993 tribute to her late mentor. Among the offending if self-evident passages from the 1987 address by Marshall:

[T]he government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

Even more alarming to the Republican mind than Marshall's spotlight on the early Constitution ("We the People" included, in the words of the Framers, "the whole Number of free Persons.") was Kagan's approving citation of his belief that the mission of the Supreme Court was to "was to “show a special solicitude for the despised and the disadvantaged." Inquiring conservative minds, the Hill reported, now want to know:

“Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?” the RNC asked in its research document. “And Does Kagan Still Believe That The Supreme Court's Primary Mission Is To ‘Show A Special Solicitude For The Despised And Disadvantaged’?”

But the shocking defense of slavery is just the latest episode of antebellum nostalgia from the Republican Confederacy of Dunces. From their inflammatory rhetoric to their resurrection of discredited Confederate notions of secession, nullification and states rights, the GOP's fans of Dixie constantly remind Americans that the old times there are not forgotten.

Continue reading »

Looks like it's official:

President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court, a person familiar with the president's thinking said Sunday night.

The move positions the court to have three female justices for the first time in history.

The source spoke on condition of anonymity because the decision had not been made public. Obama will announce his choice at 10 a.m. Monday in the East Room of the White House.

Known as sharp and politically savvy, Kagan has led a blazing legal career: first female dean of Harvard Law School, first woman to serve as the top Supreme Court lawyer for any administration, and now first in Obama's mind to succeed legendary Justice John Paul Stevens.

At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama's legacy for a generation.

Kagan has clerked for Thurgood Marshall, worked for Bill Clinton and earned a stellar reputation as a student, teacher and manager of the elite academic world. Her standing has risen in Obama's eyes as his government's lawyer before the high court over the last year.

Yet Kagan would be the first justice without judicial experience in almost 40 years. All of the three other finalists she beat out for the job are federal appeals court judges, and all nine of the current justices served on the federal bench before being elevated.

Kagan's fate will be up to a Senate dominated by Democrats, who with 59 votes have more than enough to confirm her, even though they are one shy of being to halt any Republican stalling effort.

Media Matters says that conservative objections to Kagan are motivated by politics, not substance (a "no duh" statement if I ever heard one.):

Bill Kristol says he "endorsed Elena Kagan," but Republicans "should oppose her" anyway. On the April 11 edition of Fox News Sunday, when host Chris Wallace asked if Republicans' "decision as to how much of fight they want to make" over the nomination would depend in part on who Obama nominated, Weekly Standard editor Bill Kristol responded, "Not that much." Kristol added that while he "endorsed Elena Kagan" as a nominee, he believed that "most Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote."

Conservative activist Viguerie signals that conservatives will paint any nominee as "radical." The New York Times reported in an April 16 article:

Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election. "The more material he gives us to work with, the easier the battle will be," Mr. Viguerie said. "The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is."

Coulter urges "huge court battle" to benefit GOP election hopes. On April 12, conservative commentator Ann Coulter said: "A huge court battle is fantastic for Republicans. The reason the Democrats need the courts to legislate for them is their ideas are heinous to the American people. They can't win in democracy so they do it through the courts. This is always good to have a fight over the courts."

Hannity agreed that it was a good idea to have a court battle "whether you win or lose." In response to Coulter's statement that "it's always good to have a fight over the courts," Fox News host Sean Hannity said: "I agree with you, whether you win or lose."

Let the hackery begin.

I expected the smears to come as soon as President Obama nominated someone to the high court, but apparently CBS loves their Box Turtle Ben, a known plagiarist. Conservatives can do no wrong.

The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would "please" much of his base by picking the "first openly gay justice." An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers." The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor.

As Duncan says:

Box Turtle Ben

If you're a conservative, there's nothing you can do which will prevent you from being embraced and promoted by the liberal media.

Box Turtle Ben has admitted that he was spreading around a rumor. But why would CBS publish this unless it was confirmed? I would love to see a gay supreme court justice alongside Scalia and so would everyone in the liberal blogosphere, but we can't let the media allow rumors or lies to dictate any story. Even Howard Kurtz was annoyed.

But the Washington Post’s Howard Kurtz, who broke the story about the WH pressure, thinks Domenech’s defense shows he doesn’t understand how serious the rumormongering was, tweeting “I don’t care about Elena Kagan’s sexual orientation, but for CBS to publish that rumor was obviously incendiary — and the WH was furious.”

And it doesn't matter if other liberals thought she might be gay, you don't write something about a person unless you know it's true. Box Turtle Ben was using the old whisper campaign routine.

I have a few other people that I would pick over Kagan for the court, but Nixonian dirty tricks are really offensive.

Digby writes:

Why? Because every woman who isn't married after a certain age is assumed to be a lesbian by some people, even if she isn't, especially if she doesn't look like a fashion model. And social conservatives and gay rights activists (for different reasons) have a vested interest in her being seen as gay. It's not an insult but it is a misconception and one that isn't entirely benign to the person who is the subject of it. If she says anything publicly to deny it, it sounds as though she has a prejudice against gay people and if she doesn't deny it, she becomes known as something she isn't. It's not fair.

Ben Domenech is right wing hit man and always has been. And he's succeeded wildly here. The rumors are now "out there" and Cokie's Law is in effect. How a known plagiarist came to be employed by CBS is the more interesting story, actually. Especially for a man who's known to hire hookers to powder and diaper him and then sing him to sleep. Or at least that's the rumor. Not that there's anything wrong with that.

And here's where the origin of the Box Turtle began.

DOWNLOADS: (373)

PLAYS: (1374)

Embed

[H/t Heather]

I'm not very excited about covering this Supreme Court nomination process, but I will point out Republican demagoguery over it.

The gerbil-esque Republican senator from Alabam, Jeff Sessions, had quite an opening on Monday. He viciously attacked Elena Kagan on all counts and went so far as to say she was a traitor to the troops -- and it was all considered OK, because conservatives can never go too far.

SEN. JEFF SESSIONS: Ms. Kagan has less real legal experience of any nominee in at least 50 years, and it's not just that the nominee has not been a judge. She has barely practiced law, and not with the intensity and duration from which I think a real legal understanding occurs.

Her actions punished the military, and demeaned our soldiers as they were courageously fighting for our country in two wars overseas. Ms. Kagan has associated herself with well-known activist judges who have used their power to re-define the meaning of words of our Constitution and laws in ways that, not surprisingly, have the result of advancing that judge's preferred social policies and agendas.

Tweety blasted Sessions pretty well, which offended the tortured souls at Newsbusters, but this is about Sessions. Sending our troops to countries that didn't attack us and then watching the body counts rise on all sides of the conflicts doesn't faze Sessions. See, they could all be home or on some nice and cozy military base instead of dealing with the heat and the IED's of Iraq and Afghanistan, building democracy from the ground up, brick by brick, body by body, person by person. It's a task not all soldiers embrace wholeheartedly.

Think Progress also catches Sessions with a Harriet Miers crush:

On CNN’s American Morning, many of Sessions’ arguments were effectively demonstrated to be disingenuous by host John Roberts. Arguing that Kagan has “serious problems,” Sessions complained that Kagan has praised former Israeli Supreme Court President Aharon Barak. But Roberts noted that Justice Antonin Scalia had also praised Barak.

Sessions then attacked Kagan for not having a depth of experience, but Roberts noted that Sessions had praised Bush nominee Harriet Miers, who also did not have judicial experience. Roberts said, “Just a second ago, you pointed to Harriet Miers’ White House experience as a qualifying factor, but you point to Elena Kagan’s White House experience as a potential disqualifying factor.”

Harriet Miers was an awesome pick for Bush. Jeff Sessions said so. Doesn't that qualify him for much bigger things in conservative-land. In movement conservatism, dumbing down government agencies and the people that work there is paramount. With Sessions, they've found somebody who operates at the bottom level of the not good for government chart. Or rather, he's their kind of guy.