Today in Supreme Court History: January 21, 2010

1/21/2010: Citizens United v. Federal Election Commission decided.

Comments

[Dan Schiavetta]

Citizens United v. Federal Election Comm’n, 558 U.S. 310 (decided January 21, 2010): Court disallows on First Amendment grounds any restrictions on use of general corporate or union funds to advocate or denigrate political candidates, explicitly overruling McConnell v. FEC, 2003, and Austin v. Michigan Chamber of Commerce, 1990, except for requiring identification of who is putting out the ads and disclaiming that it represents the views of the broadcaster (in effect, eviscerating the McCain-Feingold Act)

Lau v. Nichols, 414 U.S. 563 (decided January 21, 1974): failure to provide English language instruction to first-generation Chinese students violates Civil Rights Act of 1964 because it excludes them from participation in program receiving government assistance (overruled to the extent that nonintentional discrimination is no longer actionable under that statute, see discussion in Alexander v. Sandoval, 2001)

Department of Homeland Security v. MacLean, 574 U.S. 383 (decided January 21, 2015): air marshal was protected by whistleblower statute (5 U.S.C. §2302(b)(8)(A)) from termination because his disclosure to reporter of what he believed to be a dangerous cancellation of air marshal assignments during terrorist alert (supposedly to save money) was not within the whistleblower exception for “disclosures specifically prohibited by law”

Pearson v. Callahan, 555 U.S. 223 (decided January 21, 2009): no warrant needed for police entry into home because defendant had already agreed to let in the informant to whom he then sold drugs (of course he didn’t know it was an informant); this is called the “consent-once-removed” doctrine, already accepted (does this sound right to you?), and therefore entry not in violation of “clearly established law”; therefore, police officers entitled to qualified immunity (unanimous decision)

United States v. Jimenez Recio, 537 U.S. 270 (decided January 21, 2003): can be charged with conspiracy even if joined conspiracy after it had been defeated (agreed to come pick up truck even though police had already seized drugs from it and set up sting with presumably coerced help of original truck driver)

[F.D. Wolf]

The "consent once removed" doctrine holds that if you give a policeman consent to enter your home, you have also given consent to officers he may call to assist him. The typical example would be your giving consent for a policeman to search your house, and he calls other policemen to assist in the search. Obviously, these scenarios apply to someone you know is a police officer. The question before the Court was whether it applied to undercover police. (The Utah Court of Appeals had already held it didn't, reversing Callahan's conviction. This case was his suit for damages against the police).

So, how did the Court answer the question? It didn't. The importance of Callahan is that it overturned Saucier v. Katz (2001), which had required courts to make a two-step inquiry on qualified immunity: 1) Did the officer break the law?; and 2) Was the law clearly established? Here, the Court held that a court need not answer the first question if it didn't want to. The obvious problem with that is that it creates a "closed loop", and violations of law never become "clearly established".

[Dan Schiavetta]

Thanks. Well put.

[F.D. Wolf]

I understand the logic of saying, don’t waste pages of analysis on some novel issue, if you’re just going to conclude with, “but since this has never come up before, the officer has qualified immunity.” Arguably, all that analysis becomes pointless dicta. But, as I noted earlier, how can the law ever become “clearly established”, if a court won’t declare what the law is?

And, frankly, I don’t know why it matters whether the law is “clearly established”. Something either violates the law or it doesn’t. If a private citizen is sued for something, it is no defense to plead, “Well, this particular set of circumstances has never before been before a court to determine if it was a violation of this [tort, statute, etc.]” Someone has to be the first.

[Michael P]

Qualified immunity is for civil suits against government officials in their personal capacities, right? Does it apply in lawsuits against the government? (I understand it doesn't.) I can understand not wanting to expose individuals who act under color of government authority to liability in borderline cases -- although I think the basis and rough boundaries of that kind of immunity should be established by the legislature rather than by courts.

[Dan Schiavetta]

F.D.:

Quite true.

Also --

“Clearly established federal law, as determined by the Supreme Court of the United States” (or rather, a violation of it) is the threshold for habeas nowadays (I’m quoting from 28 U.S.C. §2254(d)(1)). And again and again the Supreme Court denies habeas because it hasn’t ruled on whether the facts at issue violated “clearly established law” — and then refuses to say what that “clearly established” law is, even though it’s being presented with those facts for its determination. See, e.g., Kane v. Garcia Espitia, 546 U.S. 9 (2005) (which I commended here on on Oct. 31).

[SRG2]

gain and again the Supreme Court denies habeas because it hasn’t ruled on whether the facts at issue violated “clearly established law” — and then refuses to say what that “clearly established” law is

Because if they did, police and other officials wouldn't be able to avail themselves of a QI defence in similar cases.

[bernard11]

I agree, and shouldn't police be better-informed on the relevant laws and Constitutional provisions than the average citizen?

We have seen cases discussed here where the violation was blatantly obvious to commenters right, left, and center, yet the courts decided the offender had no way to know.

[Rev. Arthur L. Kirkland]

.

Billionaires tend to lean Left because they tend to be megalomaniacs who want to shape the world in their image

Or maybe billionaires (especially those not coasting on old money inherited from clingers) tend not to be half-educated, racist, xenophobic, un-American, gay-bashing, Islamophobic, gullible, misogynistic, transphobic, antisemitic, disaffected, rural religious kooks?

[Frank Drackman]

You've been "In Stir" too long Jerry, lots of Billionaires are like that.

[SomeGuy 2]

The liberal wing of the Court really wants this to be a country where documentaries are banned because they might influence an election. This is, of course, crazy. Documentaries didn't really exist at the time of the founding, but regardless spreading information and making arguments to influence the voters is exactly how democracy is supposed to work.

[Krayt]

“I hate the appearance of corruption!”

“What about the Clinton foundation, which had oil dictatoraships pouring cash into it.”

“THEIR FOUNDATION WAS A GOOD THING!”

“They put Chelsea as a director, which was the same damned kind of thing Hoffa was doing, and a certain mayor who we to jail.”

“SHE RESIGNED TO AVOID LOOKING CORRUPT!”

“And the donations dried up after she lost.”

“SHUT UP!”, she exained.

[Dan Schiavetta]

None of that is true.

Like a lot of Clinton activities, it was extensively investigated by the FBI (including during the Trump Administration) and nothing was found. It has an A+ rating from Charity Watch. What's that all about?

(and compare that to the Trump Foundation)

[gVOR08]

There's a bit in "The Producers" where they ask a guy they're auditioning about his experience. "I was up for the lead in "Lilac Time"' "What happened?" "I didn't get it."

A donor asked for a meeting with the SoS. What happened? He didn't get it.

NYT's deep dives into the Clinton Foundation catalogued all the possibilities for corruption they could think of. Then in the next to last paragraph, of fifty, they'd reluctantly admit they hadn't actually found anything. It became a joke,

[Dan Schiavetta]

And this was the supposedly left wing NYT.

[Mr. Bumble]

Try B+ as of June 2022.

[SRG2]

Re: Citizens United

The more that it is argued that fictional persons have the same rights as natural persons, the more I am inclined to think that the current tax system is unconstitutional as it treats fictional persons far far better than natural persons, hence being a gross violation of equal treatment.

I also note that when it comes to homicide, there is likewise unequal treatment. Why is Boeing allowed to continue to exist as a free company? An individual who had killed as many people as Boeing with the same degree of negligence would have been locked up for years.

[SRG2]

Roberts' view for a while is that corruption requires a specific quid pro quo - a very convenient position, IMO.

[Davy C]

They can certainly give rise to corruption or the appearance of corruption. But the mere possibility of corruption doesn't trump freedom of the press; you can't ban people (whether organized as a corporation or not) from making movies criticizing politicians, and you can't ban them from spending money to make and publicize those movies.

[TwelveInchPianist]

"Which included the laughably stupid “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”"

Do you think newspaper endorsement of candidates give rise to corruption or the appearance of corruption?

[Krayt]

McCain said at the time he was tired of making constant phone calls to keep his coffers up. Such noble behind the scenes causes.

[bernard11]

you can’t ban people (whether organized as a corporation or not) from making movies criticizing politicians, and you can’t ban them from spending money to make and publicize those movies.

I think this is a complicated issue, and sweeping vastly different organizations into the category “corporations” obscures a great deal.

IMO the decision was correct wrt the specific organization Citizens’ Union, and similar non-profit membership organizations.

It was wrong for public corporations, where huge agency problems exist.

[Dan Schiavetta]

One wonders what that phone call was like, with the original driver calling his friend with a cop's gun aimed at his head.

Laverne (or was it Shirley?): "And make it with extra sauce. . . "

[Dan Schiavetta]

True, but if you know for a fact that there are children in the school system who have only just arrived in this country, it’s hard to say you’re not intentionally discriminating when you expect them to take the same classes as the native-born kids. Particularly with kids from a logographic culture like China who don’t even know what an alphabet is.

[Dan Schiavetta]

It ranks up there with "The Dukes of Hazzard" as one of those this-is-really-stupid-but-I-can't-stop-laughing shows. L&S in particular, with its studio audience and minimal sets, was like a high school play.

[Frank Drackman]

Ah Queenie, what's the matter, yo Mama Baby Daddy didn't steal you a TV when you were incubating in the Ghetto? Multiverses go back to when Malcolm the Xth was still alive, Andy Griffith begot Gomer Pyle, Beverly Hillbillies visited Green Acres, and don't even get me started with All in the Family (Rob Reiner was supposed to be the big star), the Jeffersons, Good Times, Maude....
Even the late/great Redd Foxx's "Sanford & Son" had an awful "Grady" spinoff

Frank "Shut up Dummy!"

[Krayt]

A single universe!

And never forget, it includes interstellar travel, as Mork and Mindy was a spin off of Happy Days.

[F.D. Wolf]

A funny thing about Citizens United is that Leftists, after screaming absolute bloody murder about it for a few years, very seldom complain about it anymore, because they realize that, by far, they have been its greatest beneficiaries.

Billionaires tend to lean Left because they tend to be megalomaniacs who want to shape the world in their image, envisioning massive projects to do so. So they give their money to those with the same worldview.

And, of course, those people screaming, “Corporations don’t have rights!” a few years ago, seem to have done a complete reversal as they vigorously defend the “right” of social media giants to suppress speech.

[Frank Drackman]

Funny how these supposedly superior Asian civilizations never figured out the alphabet.

[John F. Carr]

It's not clear whether these students were born in the United States. I suspect they grew up in San Francisco in Chinese-speaking households.

The case was decided in 1974. By the 1990s English education was common in China. Now it starts around age 10. Immigrants entering middle school would know some English.

The case was decided on what we now call a theory of disparate impact, which the court thought was required by Department of Health, Education, and Welfare regulations. The Education part was split out into a separate agency in 1979.

[Brett Bellmore]

"it’s hard to say you’re not intentionally discriminating when you expect them to take the same classes as the native-born kids."

Given the literal meaning of the word "discriminate", I think it's actually remarkably easy. Whatever your complaints about treating people the same might be, the one thing it categorically isn't, is "discrimination".

[Dan Schiavetta]

What did he say ? (I don’t want to unblock him)

[Frank Drackman]

Yo Mama Baby Daddy didn't steal you a TV? so sad.

[Brett Bellmore]

Indeed, a lot of the problems stemming from outrage about CU are from conflating for profit public corporations, (ADM!) with non-profit ideological corporations. (Citizens United.)

When an ADM sticks its nose into politics, often it's diverting stockholder resources from their appropriate fiduciary purposes to the private political causes of the management. This is abusive even if everything is above board and non-corrupt, essentially a kind of embezzlement.

When a Citizens United sticks its nose into politics, it's doing what the people contributing to it are paying for! Effectuating the very purpose of the corporation.

There were considerable efforts at the time to leverage public concerns about ADM politics to the end of shutting up CU politics.

[John F. Carr]

Once upon a time corporations were chartered for a specific purpose. If a corporation chartered to build and operate a toll road started building factories it could be dissolved or ordered to stop.

If Delaware required political activity to be explicitly listed as a corporate purpose in the articles of incorporation, not implied by a catch-all "for all lawful purposes" clause, I wonder if anything would change.

[TwelveInchPianist]

"Imho the way that should be dealt with is by requiring public corporations to disclose and get shareholder approval before they can expend funds for electioneering."

Corporations can require that themselves if their shareholders desire.

[TwelveInchPianist]

And in any event, it's not clear that a law requiring corporations to jump through hoops before engaging in speech wouldn't violate the first amendment.

[Brett Bellmore]

That it had actually started years earlier; Near the mountains where the Clampetts (Beverly Hillbillies) came from, were the towns of Mayberry, Petticoat Junction, and Hooterville. Gomer Pyle was a Mayberry native, you know.

This sort of thing was very common during the studio era. Shows produced in the same studio existed in the same universe, and interacted.

[Dan Schiavetta]

I don't think those shows were of the same class. For one thing, they were better written. But my main point was the out-and-out physical comedy. For example, when Sorrell Booke and James Best got together, that was some great slapstick.

[Frank Drackman]

2 Great “Gomer Pyle” cross over episodes, one where “Goober” shows up at Camp Henderson CA to “Try out” the Marines, and Gomer gets blamed for all of Goober’s transgressions (wearing his mechanics cap, white patent leather loafers, saying “Hey!” to an Officer) the other where Opie runs away from home (taking the bus from NC to CA in the 60’s? Opie was lucky Coach Sandusky wasn’t around) Andy has to fly out to CA to bring him back (big $$ in the 60's), touching scene where Sergeant Carter asks Andy not to beat Opie (Carter seemed a little too interested in Opie, nome sane?)

Frank

[Dan Schiavetta]

Ok but my question survives as a hypothetical.

[Frank Drackman]

That's almost as funny as an Emmett Till Halloween Costume

[Frank Drackman]

and before anyone reports me to the Race-ist Po-lice, that was a Chris Rock bit before he learned what side the bread was buttered on...
"Everyone else got cool Halloween Costumes, Spiderman! Batman! the Hulk! I got "Emmett Till"!!!!
and I never got any Treats, only Tricks!!!"

Frank

[TwelveInchPianist]

"When an ADM sticks its nose into politics, often it’s diverting stockholder resources from their appropriate fiduciary purposes to the private political causes of the management."

Do you have any evidence of this?

[bernard11]

Instead what happened is that CU arguments were used to let ADM into the game.

[TwelveInchPianist]

But political activity is often a secondary purpose. So if you have a corporation whose purpose is to mine coal, they're going to engage in political activity for the purpose of getting legislation more favorable to coal mining.

[Brett Bellmore]

The problem is that while political spending can give rise to corruption, and corruption itself can be treated criminally, that doesn't mean you can use that potential to regulate the spending without proving corruption in the specific instance you're attempting to regulate.

Because the money is being spent on speech, speech of the people whose money it is! You can't use the fact that it costs money to be heard as a handle to regulate the content of speech.

[TwelveInchPianist]

Do you have evidence that independent expenditures result in quid pro quo arrangements with candidates?

[Krayt]

Justice: "So if this book is published a month before the election, it is illegal?"

Government Lawyer: "Yes."

What part of this aren't people understanding?

[Brett Bellmore]

Do YOU invest in stocks in order to lobby politicians? Personally, if I want political lobbying to happen, I invest in public interest groups.

[Brett Bellmore]

I think network censorship of sex actually contributed to good writing in that era: Injecting sex into a story is a cheat for bad writers.

[Krayt]

It doesn't bother you many "leftist" billionaires "obviously" lean left as a disabling distraction against attacks by politicians?

It's not me. I've got some predigested memes espousing just that for you, including royal hate for Gates.

It's also not new. Rockefeller suddenly shifted gears at one point.

[TwelveInchPianist]

I invest in stocks to make money.

And if some of my 401K is invested in a fund that owns shares in a coal company, and that company could benefit from lobbying for candidates and polices that make it cheaper to mine coal, I'm not going to be doing the lobbying, I expect the coal companies to do that.

[Michael P]

The bigger government is, the more important it is for companies to lobby government -- whether one reads that as corrupting the process or to try to get a fair shake. I'd rather companies spend their money on their direct lines of business, but all the evidence indicates that the optimal lobbying spend (for shareholder returns or for staying in business) is non-zero, and increases with government activity in the business sector.

[gVOR08]

"Billionaires tend to lean Left". Evidence?

Serendipitously, NYT today has a deep dive into the anti-: woke, DEI, CRT movement, naming some of the RW billionaires who created and fund it. https://www.nytimes.com/interactive/2024/01/20/us/dei-woke-claremont-institute.html (Paywalled. No gift link for you. You all claim to be libertarians, buy your own subscription.)

[defaultdotxbe]

Someome actually put together a huge database of TV crossovers and shared universes

http://www.poobala.com/crossoverlist.html

[Dr. Ed 2]

Mork and Mindy would not be successful today because you could not write a Mindy today.

Mindy was an old-fashioned girl.

[Rev. Arthur L. Kirkland]

What is funny about uncritical depiction of Confederate imagery?

Dukes of Hazzard was a show by, for, and about obsolete losers.

[bernard11]

Corporations can require that themselves if their shareholders desire.

That's amusing.

[bernard11]

It's one thing for corporations to lobby for legislation that helps them on one issue.

It's another to support candidates, who are bundles of issues.

[bernard11]

Because the money is being spent on speech, speech of the people whose money it is!

Not so for public corporations. And don't give me "You can always sell the stock."

[Dan Schiavetta]

Most people follow their own self interest. Also, for some reason, no matter how rich people get, they always seem to want more money. The advantages rich people get were put in place by right wing forces. This is why rich people tend to be conservative. They don’t want to disturb their nest.

[bernard11]

And what if the candidate also advocates for a lot of policies you hate, or which might cause a different investment of yours to perform badly?

[TwelveInchPianist]

If I'm that concerned about it, I'll be more careful about how I invest my money.

[TwelveInchPianist]

What, so different about lobbying candidates to support an issue that favors them, and supporting candidates that support issues that favor them?

[John F. Carr]

Making corporations accountable to shareholders or their corporate charter may get past the courts when an outright ban on political advocacy would not.

You could except lobbying justified by a business case that is made available to shareholders. "If Curley becomes mayor we stand to gain $1 million in business, so we are spending $100,000 to boost his chances by 15 percentage points."

(This prompted me to check on lawsuits against Anheuser-Busch over its failed transgender outreach campaign earlier this year. Clear negative return on ROI. So far, smoke but no fire. Nobody can prove company employees expected it to blow up in their face.)

[TwelveInchPianist]

"Not so for public corporations."

Why not? If I give money to, say, the march of dimes, I expect them to do things that advance the cause of maternal health, and that includes saying things I might not agree with, or supporting candidates I might hate.

If I invest in a coal company, I expect them to do the things necessary to mine coal, including creating a favorable political environment for coal mining. Even if they say things I might not agree with, or support candidates I hate.

[TwelveInchPianist]

*What's

[TwelveInchPianist]

I'm not sure it would pass heightened scrutiny. If shareholders were concerned about this, they could limit their purchase of stock to companies who have rules about lobbying in their charter.