Regarding Gerard's comment on Citizens United, here is my comment earlier today at Sandy's most recent posting on the October Surprise:

*****

Here's a thought to consider: Perhaps Obama can give the SCOTUS majority in Citizens United (5-4) a tip of the hat for his second-term win. Combining Buckley with Citizens United made for a lot of noise in the form of "free" speech funded to a great extent by billionaires, many of whom did not want their names disclosed, with Super Pacs. Stephen Colbert can be credited with putting the spotlight on Super Pacs with his spoofs of Super Pacs, including his own. Colbert's youthful audience is expanded via the Internet to geezers like me who are too cheap to pay for cable and who can't stay awake at the late hour of the program. Young people voted strongly for Obama and apparently avoided the noise of the Super Pacs. So perhaps there is a law of diminishing returns that applies to the excessive noise resulting from Buckley's money is speech to Citizens United's corporations are people. Instead of reversing Buckley and Citizens United, perhaps the better course would be to require full disclosure of contributors (and the form of their contributions), so that voters can follow the money.

With my tax background, I have been suspicious of the funding of Super Pacs. Presumably such funding would be with after tax dollars. Deductions (for income tax purposes) are not allowed for political contributions. Disclosure of the contributors and the amounts they contribute (whether in cash or in property) could provide valuable information in determining whether tax laws are being complied with. My experience in 50 + years of practicing law makes me suspicious that astute wealthy businessmen are using after tax dollars for their Super Pac contributions. Many billionaires have much of their wealth in highly appreciated securities. While gifts of such securities to a charity may result in a charitable deduction based upon fair market value, they do not result in the recognition of income to the contributor; rather, the charity sells the appreciated securities and because it is tax-exempt, it does not recognize income on the sale of such securities.

So a tip of the hat to the SCOTUS majority in Citizens United, and a wag of the finger to Congress to tighten Super Pac disclosure laws; that way we can make a better tomorrow today. [Sorry, Stephen]

******

Perhaps my comment may help prime the pump that Gerard set up.
 

Ask Prop. 37 folks if Monsanto money didn't buy anything.

Ask Prop. 29 folks if Philip Morris money didn't buy anything.

Ask Measure Q folks if Pepsi money didn't buy anything.

Three recent examples from California. Money sure as hell bought outcomes, drowned out speech. It was spent for no other reason. It worked.

The only reason the Super PAC money didn't do decide more outcomes was when Super PAC money on both sides.
 

I disagreed with Prof. Balkin that Obama would become a transformative president. Now I disagree with Prof. Magliocca that he already is one.

For the sake of the discussion, I'm going to assume that the previous transformative presidents were Jefferson, Jackson, Lincoln, FDR, and Reagan.

As I see it, the transformative presidents share the following in common:

1. They establish a new electoral coalition.

2. They sometimes confirm or initiate major social changes (Jackson, Lincoln, FDR), but not always (Jefferson and Reagan simply tried to freeze the social status quo).

3. They initiated major economic changes.

4. They won a blow out election in their second term (1804, 1832, 1864, 1936, 1984), and their coalition went on to sustained electoral success.

Now let's see how Obama fares. On No. 1, I think he qualifies. The white republic is gone forever. Obama's diverse coalition is the near term future.

The very nature of Obama's coalition means that he meets No. 2 as well.

Category 3, though, is a showstopper. Obama operates within the existing neo-liberal economic consensus. No change there at all.

Just as obviously, Obama's win yesterday isn't anywhere near the magnitude of the victories achieved by the recognized transformative presidents. It was a good victory, no doubt, but not the definitive judgment the others got.

Part of this can be explained by the fact that Obama is black. He probably lost 2-3% of the nationwide popular vote due to simple racism. Even if we gave him those votes, however, he'd still fall short.

And this brings me back to issue 3. Because Obama was so cautious, so tepid in the ARRA and Dodd-Frank, he failed to create the economic recovery necessary to sustain a blowout win. That affects not only how he's perceived now, but potentially the long-term impact of his other policies.
 

As jpk notes, certain local races (House races too) offer some evidence of CU effects.

The fact that the end result went Obama's way doesn't really to me suggest it had no egregious effects on the national race either.

I was somewhat in the minority on my side on the validity of CU & think some of the concerns are excessive, but would not go too far the other way either.


 

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I think it's amusingly oblivious to state that a President who won election and reelection with 98% of his own race's vote lost votes due to racism. Requires a seriously tendentious definition of racism to make that claim work.

The truth of the matter is that Obama's race has actually benefited him; Aside from getting an insane percentage of the black vote, it has served to permit his defenders to accuse anyone who opposes the President of racism. A tactic no white President could ever employ.

The President is a master politician, of that there is no doubt. A pity that he so clearly demonstrates the disconnect between skill at running for office, and skill at performing that office.

The nation will survive, I suppose, even 8 years of Obama.
 

President who won election and reelection with 98% of his own race's vote lost votes due to racism. Requires a seriously tendentious definition of racism to make that claim work.

The NYT exit poll noted the number was 93% nationally but why is it so hard to understand how getting most of the votes of 13% of the population, who are disproportionate present in certain states, would make it possible to lose votes, particularly in certain areas, from 78.1% of the population?

The truth of the matter is that Obama's race has actually benefited him

in certain respects, probably

Aside from getting an insane percentage of the black vote

As compared from the 71% of the Hispanics and 72% of Asians? The votes are of a thin portion of the electorate often in states that generally lean blue anyway.

it has served to permit his defenders to accuse anyone who opposes the President of racism. A tactic no white President could ever employ.

Not "anyone" -- people who for various reasons very well credibly can be so labeled. White Presidents would meanwhile not have to deal with some of the b.s. he has to deal with. I'm far from sure this amounts to even a wash in such areas.

A pity that he so clearly demonstrates the disconnect between skill at running for office, and skill at performing that office.

The electorate disagrees with you as does his actual record.

The nation will survive, I suppose, even 8 years of Obama.

Yes, advances in health care, gay rights, sanity and so forth is something we can survive, given we survived a Civil War, Great Depression and slavery etc.

Somehow, we shall survive this too.


 

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Brett once again demonstrates that he is the basest of the Republican right-wing base. Fortunately for Democrats, the demographics for Brett and his ilk are negative. Maybe Brett and the other angry white men need to procreate rather than procrastinate.
 

Shag, 93, 98, (Early reports differed.) the point is, suppose that Romney had gotten a mere 90% of the white vote.

Would you be dismissing claims it demonstrated racism?

Every last black I know voted for Obama, and most of them make no bones of the fact that his race played a part in the decision. If the situation were reversed, my ears would be ringing from the cries of "Racist!".

The double standard has me more than a little irate. It is time, and long since, that minorities stopped getting a pass for behavior that would get nothing but contempt if whites exhibited it.

And I care not a bit what you consider "base". I ask only one thing of the GOP in the future: That the party stop letting Democrats define what it is exceptable for Republicans to talk about in a campaign.

It's time for the race card to be declined.
 

Brett has a short term memory problem with this:

"The nation will survive, I suppose, even 8 years of Obama."

apparently having conveniently forgotten the eight (8) years of Bush/Cheney that the nation survived, but barely, leaving the nation and Obama in a deep, deep hole to climb out of.

When I was a kid and would complain to my mother about not quickly recovering from a cold or other illness, she would calm me by saying "It takes 40 days to get sick and 40 days to get better." I later learned this was an old country saying based upon the Bible and the great flood of Noah's times. Patience, Brett.

With Obama, we have started to climb out of that hole despite the GOP efforts to thwart Obama from day one of his first term. Brett reminds us that the Civil War ended about 150 years ago, ignoring the remnants of slavery that continue to this day with racial issues. But Bush/Cheney's 2008 Great Recession dumped on American was only four (4) years ago and Brett conveniently brushes that aside.in assessing Obama's efforts, despite GOP resistance, to overcome the Bush/Cheney failures of eight (8) long years. Brett's perspective remains looking through the wrong end of a telescope.
 

Maybe, for perspective, Brett can quantify:

"Every last black I know voted for Obama, ...."

Are they some of his best friends?
 

Would you be dismissing claims it demonstrated racism?

Over 70% of Asians and Hispanics voted for Obama w/o as high of the baggage of one side to deal with. Does this "demonstrate racism"? Well, it might ... but not quite the way you suggest.

If the situation were reversed, my ears would be ringing from the cries of "Racist!".

Blacks vote in high numbers for Dems, as they used to for Republicans, for a reason. They vote comparable numbers when whites run for President. If a woman ran, many women in part will note that is a reason they voted for the candidate.

Yes, "race had something to do with it" -- the Republican Party for years has done things that harmed blacks, leading many conservative leaning blacks to vote the other way comparable to whites voting for Republicans on abortion or whatnot even if their economic interests go the other way. You can pretend it's all a figment of their imagination or is "racist" but the facts say differently.

It is time, and long since, that minorities stopped getting a pass for behavior that would get nothing but contempt if whites exhibited it.

Voting for the candidate that protects voting rights after they fought for generations? Against the party where something like 1 in 5 (or whatever) think he's from Kenya? Again, contempt, but not the way you say.

And I care not a bit what you consider "base".

I know someone who compares affirmative action to the KKK beating up people doesn't care what I think, yes, but I'm trying here to submit a bit of a competing perspective.

I ask only one thing of the GOP in the future: That the party stop letting Democrats define what it is exceptable for Republicans to talk about in a campaign.

Each party tries to so define in some fashion. Yet again, "libertarian" Brett is one-sided against Dems or the "left" or whatever, now and then deigning to make a nod toward the ills of the Republican.

It's time for the race card to be declined.

Yes, Republican Party, heal thyself.
 

I'm sorry the discussion has gotten so off topic, because I think the post raises an interesting question. Since it is, though...

Latinos in CO voted 87-10 for Obama. It would be hard to explain that as "racial solidarity" for Obama, but pretty easy as a reaction to the institutional racism of the Republican base. Speaking as a liberal, I'm more than happy for that base to continue to insist that brown people are at fault for this.
 

Obama did not take an "insane" percentage of the black vote. Joe Biden would have pulled about 90% of the black vote if he had been the candidate. The Democrat usually does. A slight bump for one of your own, however, is natural. (In my state, Italians run about 60-40 Republican, but not when there's an Italian Democrat running against a non-Italian Republican, where it comes out around 50-50.) A big change from normal partisan patterns is what indicates racist voting, so, yes, a 90% white vote for Romney would indicate racism.
 

I think 80-85% of Mormons voted for Romney, were they being bigoted to do so?

"That the party stop letting Democrats define what it is exceptable for Republicans to talk about in a campaign."

Brett, do you honestly think the GOP lost because they were not strident enough? This kind of thinking is really hurting the GOP. The same things that delight its base turn off the rest of the nation.
 

I ask only one thing of the GOP in the future: That the party stop letting Democrats define what it is exceptable for Republicans to talk about in a campaign.

# posted by Brett : 7:16 AM

Brett, I think most Dems would be happy for you to make as many racist rants as you want. The Dems aren't stopping you, or defining you, they're just making sure that everyone hears you.
 

As to the post, I'm somewhat against defining Obama's place in the history of presidents before he actually completes his first term. I think Mark Field's comments have been interesting on this matter, but I'm inclined to think "too soon."

Anyway, the NYT praised "Lincoln" as a faithful representation of politics in action. I would have to wait but since he's one of the transformative presidents, seemed somewhat germane.
 

Gerard:

One other thought about the election. I think the critics of Citizens United should admit that their doomsday predictions about what the decision would mean for substantive political outcomes were wrong. Tons of money were spent to little effect.

Little effect?

This is the first successful scorched earth national campaign for president.

Although the final vote tally is still being made, it appears that the months long media mud throwing contest substantially reduced voter turnout from the last election.

Barack Obama lost a couple million votes off his 2008 pace, which in a normal election would have doomed him to defeat.

However, Romney lost enough votes off the McCain 2008 pace to lose the swing states by a roughly combined 150,000 votes.

Obama won reelection by being better than Romney at making voters so sick of the political process that they stayed home.

Reelection by attrition, not acclamation.

This is not the stuff of transformative presidents, but rather a dysfunctional political system.

Which gets us to to your opening point claiming there are not enough fiscal, social, and national security conservatives left to create a majority.

Sure there are. However, you cannot constitute an electoral majority unless you vote in elections.

Romney brought in fewer Republicans than did McCain, who brought in fewer Republicans than Bush.

These folks did not die or decide to become progressives, they stayed home out of disgust.

While Team Obama's dumping mud by the super tanker full did not help Romney, perhaps the GOP might want to consider running an actual conservative candidate to bring conservative voters to the polls, rather than yet another establishment Republican playing a conservative on TV.

Marco Rubio 2016?
 

Bart

Do you think voters were turned off by Romney's 'moderation' and his campaigns and aligned SuperPacs 'mild' attacks on Obama such that if only he had veered more to the right and the PACs had attacked more stridently the GOP would have won? This is getting delusional.
 

Joe, I agree with that. It's just fun to speculate.
 

Mr. W:

Bart, Do you think voters were turned off by Romney's 'moderation'

Romney had a long and infamous history of RINO governance and he worked diligently since 2007 in an attempt to convince Republicans and Independents that he was a born again Reagan conservative. It only partially took. It appears he did not convince enough people of his sincerity.

The Tea Party has been RINO hunting since 2009 and replaced politicians like Romney across the country. Romney won a plurality nomination when the libertarians and conservatives split their votes. He needed to get all the libertarians and conservatives who voted against him in the primaries to vote for him in the general. They didn't

It did not help that the RNC started a floor fight with the Ron Paul supporters in an attempt to crush any dissent. I strongly suspect that a large number of Paul folks decided to stay home.

Also, the Tea Party movement is in substantial part small business and working class, very populist and are hardly fans of Wall Street or big business. Portraying Romney as a "vulture capitalist" who enjoys firing people was more effective than I anticipated.

...and his campaigns and aligned SuperPacs 'mild' attacks on Obama such that if only he had veered more to the right and the PACs had attacked more stridently the GOP would have won?

Not at all. The GOP mud slingers were doing their worst. However, if your objective is to get people to the polls rather than supressing the vote, a candidate has to offer a positive alternative.

Ronald Reagan's victory in 1980 has as much or more to do with him offering a positive and comprehensive alternative vision of governance than it had to do with Carter's bad governance. Romney failed to do so.
 

Blankshot, you wrote a book trying to smear Obama as a socialist. You're not really in a position to be crying about mud throwing.
 

Bart

I agree that Romney was a poor candidate in many ways (a plutocrat who had flipped positions quite a bit, interestingly Obama ran much more on the former angle), but he said everything conservatives could want to hear and more and was embraced by much of the Tea Party. Besides, he was running against an avowed un-American Marxist ruining the nation in the eyes of movement conservatives: I sincerely doubt any of these people stayed home.

I agree the fight with the Paul supporters was a foolish self inflicted wound for the GOP.

Regarding mud slinging, while there was plenty on both sides I would wager the GOP did more. While Obama outspent the Romney campaign by quite a bit the SuperPacs spent for Romney by a lot, and Superpac ads are nearly all negative.

It seems to me that what did Romney in was not the gender gap (he actually won white women more than McCain did) but his very poor showing with minorities (especially Hispanics). If you remember I admonished you for underestimating Hispanic turn out for Obama. The good news for the GOP I should think is that the only real position they likely have to give up to cut into Hispanic votes is their immigration stance and rhetoric (and yes, a Rubio on the ticket should help). Abortion did not seem to harm them much (well, it did in those two Senate races in Missouri and Indiana, the GOP must make exceptions for rape and incest if it is to have any political future).
 

Mr. W:

Minority votes did not go up, they went down, but did not go down as far as white votes.

White votes went down by over 11 million compared with 2008.

These folks did not disappear in the rapture, they stayed home.

If these folks showed up on election day and broke GOP like they usually do, we have a new president.
 

Bart

What I said at the time and meant above was that in your models you were underestimating Hispanics as a share of the electorate, and how much they would break toward Obama.
 

To get back to Brett's off-topic, take a peek at Timothy Egan's NYTimes column today "The Great Experiment." If Brett reads the column, he will surely get angrier, but if he really understands its message, perhaps even he may get the message. Brett isn't mentioned by name in Egan's column, but regulars at this Blog will recognize Brett in it.
 

Back on the "Old and Washed Up" topic, take a peek at Ann Telnaes' animation today at the WaPo with the setting of a GOP Happy Hour of "Old and Washed Up" Republicans with background music - "Nobody Knows, the Troubles I've Seen" - as the animation scrolls (to the right, of course), ending with a bird dropping a turd on the pate of Karl Rove (aka Turd Blossom). I've got a feeling that turd dropping will not blossom.
 

Let's remember that the issue of unlimited corporate expenditures is not merely the distorting effect on discourse -- which, I agree, at least deserves a rethink after these results (though by no means do I think it's obvious that there is no such effect) -- but also that such expenditures, despite their purported "independence," represent an avenue for corporations to purchase influence over the candidates, in much the same way as direct campaign contributions. That danger has by no means been disproven by this election.
 

I agree with the last comment as to the influence (if it is constitutional to deal with that as some wish, not same question).

HOW Obama governs, e.g., is affected by how he deals with the powers that be, including those who played an important role in his election. Some think his monetary reforms were too conservative. The role of big money in this is not that hard to imagine.
 

Well said.

Buying influence, ultimately buying law that favors the interests of the big money that's doing the buying, is a problem that hardly goes away with some bad purchase decisions.

Probably more bullets miss the target than hit it. That doesn't mean that guns have no effect.
 

"- but also that such expenditures, despite their purported "independence," represent an avenue for corporations to purchase influence over the candidates, in much the same way as direct campaign contributions."

The problem is, this is equally true of the spending of corporations like MSNBC or CNN. Whose "news coverage" is often just a scarcely disguised "in kind" contribution to the candidates they favor.

You can't preserve anything like freedom of the press if you attempt to regulate these corporations' in kind contributions, but once you've decided you're not going to regulate them, there's no principled basis for saying that a corporation that owns a printing press gets a pass on regulation, but a corporation that rents one gets it's corporate speech regulated.

I believe that the best approach is to recognize that, while there might be arguments for regulating this speech, the conflict of interest involved in incumbent officeholders getting to regulate political speech is mind boggling. It renders any putative advantage of the regulation trivial by comparison.
 

Brett seems to leave open popular initiatives as a way to regulate the field.

Of course, "regulate" includes things like disclosure laws, but as with Heller, Brett probably thinks Citizens United is woefully statist.

The owns/rents thing also suggests a difference. I am sympathetic to the Eugene Volokh "press" as a means not just an institution argument, but permanent ownership and primary focus on news leads to different results than corporate rentals for specific purposes.

The idea media sources have leanings is not "news" of course. They had them back in the day. The media still is supposed to follow certain ethical rules that an ice cream corporation that "rents" a printing press need not.

A core idea struck down in CU, which again I am more supportive than many I often agree with, was to allow corporate money but to separate it into PACS. If they also had separate media sources (as some in effect do) that had to follow media guidelines, that could be appropriate too.
 

Brett with this:

"The problem is, this is equally true of the spending of corporations like MSNBC or CNN. Whose "news coverage" is often just a scarcely disguised "in kind" contribution to the candidates they favor."

seems oblivious to the obvious contributions of Fox to conservatives' political causes. Consider that Allen West, defeated in his reelection efforts, is reported to be going to work on Fox, which has hired other similarly ilked losing conservative politicians. Roger Ailes' political agenda from Fox's beginnings is well known. (Of course, Turd Blossom Rove's reaction on election night on Fox's calling OH for Obama was untypical of conservative reactions to Fox historically.) It could be argued that but for Fox's "Feh and Unbalanced", MSNBC might be different and not the competitor Brett thinks it is. As for Brett's including CNN, that's nonsense.

While the First Amendment's "press" can be in corporate form, not all corporations are the "press." Let Adelson, the Koch-heads et al commence traditional "press" operations in corporate form if they wish to invest their money in that manner. That's what Murdoch has done. But it's doubtful Adelson, the Koch-heads could be as effective.
 

Mark Fiore's "Perpetual Campaign" points to the Citizens United Stimulus' impact on the economy, suggesting that unemployment may rise if political campaigns are not perpetual, also referencing $6 Billion spent on the 2012 campaigns.
 

Shag from Brookline said...

Mark Fiore's "Perpetual Campaign" points to the Citizens United Stimulus' impact on the economy, suggesting that unemployment may rise if political campaigns are not perpetual, also referencing $6 Billion spent on the 2012 campaigns.

:::rolls eyes:::

That nonsense makes the broken windows scenario seem almost beneficial.

Can there possibly be a worse waste of national wealth than a never ending campaign of negative political media?
 

Can there possibly be a worse waste of national wealth than a never ending campaign of negative political media?
# posted by Bart DePalma : 2:46 PM

That depends on how many wealthy suckers Rove can get to contribute to his super pac 4 years from now.
 

Here's Marc Ambinder with some sensible advice for Republicans:

http://theweek.com/article/index/235911/what-republicans-need-to-do-now

Look, Bart, if the Tea Party were so popular, Todd Akin and Richard Mourdock would be Senators-Elect right now. The reality is that the "Reagan coalition" you worship is no longer extant. It is no longer 1984. Now there are many directions that the Republican Party can go in, but all of them involve the same sort of painful process Bill Clinton and the DLC put the Democrats through where some interest groups find out that they aren't going to get everything they want anymore.

Remember, so long as the Republican Party is in some sense more conservative than the Democratic Party on major issues, conservatives have nowhere else to go and WILL vote for the Republican candidate. Karl Rove sold the Republican base on a myth that all you could do was motivate your base and then you could be as conservative as you wanted to be and still win elections. The funny thing is, it was BS even compared to his own candidate's actions-- George W. Bush had centrist positions on education reform, immigration, and Medicare prescription drugs.

You win elections by winning swing voters. Romney lost almost every major swing state. Any conservative who thinks the way to win those swing states is to be MORE conservative is thinking with some organ other than the brain.
 

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I have to say that as much as I loathe all the money in politics I have to agree somewhat with Brett. I don't see how one can limit Planned Parenthood from running ads to help someone get defeated while Fox News works as a 24 hour, 7 day a week communications arm for the GOP (feel free to switch 'NRA' for PP and MSNBC and Dems for Fox and GOP to suit). Joe presents an at least defensible idea on that, but I just don't put faith in these 'ethical rules media is supposed to follow' restraining them much (how restrained does Fox and MSNBC strike you in trying to get their favored candidates elected?).

CU left open room for solid disclosure rules. I would like to see these tried (and if they don't work then perhaps something like corporate reform requiring majority or 2/3 shareholder approval for political expenditures), before wading into how to sort out corporate renting and owning of press.

Dilan

When I look at exit polls I'm afraid I just don't see an electorate turned off by conservatism per se, though perhaps opposition to immigration did. Obama lost whites including white women, that makes me think that the GOP did not lose many voters due to abortion stances (though the ones that touted opposition to rape and incest exceptions did lose some of these women). Where the GOP lost was in the 70%+ of Hispanics (now 1 in 10 voters) that broke toward Obama. Unless these Hispanics are turned off by broader conservative stances and not simply immigration related positions I don't think they would have to change much to be viable.
 

"While the First Amendment's "press" can be in corporate form, not all corporations are the "press.""

This is a gross category error. NO corporation is "the press". Not the NYT, not ADM.

"The press", referred to in the 1st amendment, is the actual printing press, which we are ALL, every last one of us, real person and corporation, guaranteed the freedom of.

The First amendment equally protects big city newspapers, and block club newsletters. Political tracts and grocery lists.

Newspapers have no special rights denied anybody else. Though they're frequently arrogant enough to believe they do.
 

Dilan:

The Raagan coalition has not existed since the end of the Cold War when the Soviets surrendered and the anti-communist wing lost its purpose, then Climton started poaching the Reagan Dem white working class vote.

Next, the Tea Party is a voter movement and NOT a political party running candidates. Any politician can claim the Tea Party "brand," but it is up to the voters to decide whether he or she passes muster. Because the Tea Party is a grass roots movement, we also spllit our votes, which is how Romney won the nomination.
 

"referred to in the 1st amendment, is the actual printing press"

That's a reasonable argument but it is not compelled by the text.
 

Brett's commentary on the "press" evidences the shallowness of originalism to the extreme, at least as he (mis)understands it. With Brett's view, the Air Force would not be constitutionally provided for as the Constitution specifies an Army and a Navy but not an Air Force. And in Brett's view, there was no constitutionally provided for or protection of slavery since the Constitution (pre-Civil War Amendments) fails to use the terms "slave" and "slavery," such that what was all the fuss about the Civil War and the Civil War Amendments? Nor does the Constitution specify corporations, such that they can be regulated but no the "press," i.e., the machine known back then as the printing press.

There are academic papers out there, some of recent vintage, relative to distinctions between the First Amendment's "speech" and "press" clauses. I'll look through my files for originalism's view on the "press" clause to see how it compares to Brett's view.
 

"as the Constitution specifies an Army and a Navy"

I think it's time you go back and read the Constitution, from front to back; It's a useful exercise to do so once in a while, it keeps your memory of the actual document from growing vague.

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

Note the plural. Congress is permitted to raise more than one Army. The Air Force is simply an Army which uses airplanes.
 

"hat's a reasonable argument but it is not compelled by the text."

It is compelled by the text, if you apply the meanings the words had at the time the 1st amendment was written. Do you really thing the newspaper industry was called "the press" 220 years ago?

No, they started calling themselves that somewhat later, as a result of the language in the 1st amendment.

Further, "freedom of speech, or of the press"; This would be a rather strange construction were "the press" to be construed to refer to organized newspapers, rather than the act of printing.

The idea that the First amendment only protects the use of the printing press by an institution calling itself "the press" is of somewhat recent origin. It's nothing any originalist would take seriously, and for good reason.
 

Brett again provides a possible interpretation, though this time, perhaps, somewhat less likely to be what is meant.

I think the idea very well might be that they opposed standing armies. So, "armies" would tend to be short lived affairs, raised when necessary to fight wars and such. The militia doing the job in peacetime.

But, the "navy" is like a building, it's permanent. Singular. The "air force" is not actually seen now as a flying army. It's a separate service. Why not make the navy merely a floating army?

Literalists very well might note an army and air force very well might be considered sort of different. Anyway, in your readings, I recommend checking out something by Eugene Volokh.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1802229

And, with that, I will end for the weekend. Cheers.


 

Joe:

The "air force" is not actually seen now as a flying army. It's a separate service. Why not make the navy merely a floating army?

The Navy holds the sea, the Army the land. The air force holds nothing

The air force is nothing more than human guided artillery. It is a weapons system to support the Army and Navy.
 

Interesting post, but I'd say Obama has work left to do if he wants to be grouped in with those presidents. It will also depend on how his policies bear out--Roosevelt is seen as tranformative partly due to the impact his policies had over the next several decades, and still have today. Maybe Obama will be the start of a period where neither party can ignore minority voters--we'll see.

I don't think you can really dismiss Citizens United so quickly after an election that saw over a billion spent by each "team." Obama and Romney spent most of their year fundraising. Sure the "substantive political outcome" didn't change, but both parties are that much more beholden to wealthy backers.

A sentence for each of the two trolls:
Brett- Black voters went for Kerry 88-11, nearly the same margin as for Obama, and it didn't even take 4 years of birtherism and Kenya rumors.
Bart- Surely you can do better than regurgitating the Romney claptrap about "suppressing the vote?" Turnout in the swing states was down a few points from the historically high 2008 election, and not unusually low nationally despite drops in Sandy-affected states.

Republicans are still in denial. Next up: anger. I'm ready to jump straight to bargaining myself.
 

Today's WaPo features Dana Milbank's "The GOP's Blame Game" on its loss of the presidency starting with the five (5) stages of grief - but never completing the 5th stage -and then goes beyond with more specific, but entertaining, examples/reasons. Yes, this a a Democratic Charlie Brown - "Good Grief!" - moment; the "Gooder" the better.

And the fun in today's WaPo is not over with the burnt offerings of George Will and Kathleen Parker. The latter's namesake Dorothy might have said for the occasion: "If all the old white men who voted for The Mittster were laid from end to end, I would be surprised."
 

Thanks to Brett and improving eyesight, my reading over the weekend will include Sonja R. West's "Awakening the Press Clause" published in 2011, 58 UCLA Law Review 1025. (She is an Ass't. Prof. at U. of GA School of Law.)

Yes indeed it is important to read the entire Constitution but not as blinders. History, SCOTUS opinions, etc, subsequent events cannot be ignored. The Catechism Method does not well serve constitutional interpretation/construction.

The article is 47 pages in length, single spaced, so it will take me longer than usual to read it, especially since I plan to check footnotes.

I do not believe that the press clause is superior to the speech clause or vice versa. Rather, unlike Brett, I don't think the press clause is the equivalent of a potted plant.
 

I like joe's point about 'armies' likely referring to armies that would be called up and then dissolved; the Founder's distaste for standing armies was well known.

I think Brett and Bart are missing the point re the Air Force. Can you analogize and say 'well, the Air Force is like a weapons system or another army and therefore it is ok with originalism?' Sure, it's not unreasonable. But look at how loose one must be with the text to get your result, if textualism can be that loose then its biggest claim to validity, that it is a restraint on judges' subjective whims, is undercut.
 

WOW! Frank Rich's New York Magazine column 11/9/12 "Fantasyland -Denial has poisoned the GOP and threatens the rest of the country too" omits nothing in analyzing the 2012 presidential election. Fortunately Rich is not limited to the short word count of many political commentators. I'm looking forward to tomorrow morning's political talk shows, hoping that George Will, Peggy Noonan, Karl Rove, Joe Scarborough, Chuck Krauthammer, Michael Barone, Kathleen Parker, Mary Matalin, et ilk, will be on board with finger pointing (except at each other).
 

Shag:

I'm looking forward to tomorrow morning's political talk shows, hoping that George Will, Peggy Noonan, Karl Rove, Joe Scarborough, Chuck Krauthammer, Michael Barone, Kathleen Parker, Mary Matalin, et ilk, will be on board with finger pointing (except at each other).

Consulting the political class about the thinking of American voters is increasingly a fools errand. They almost live on different planets.

I would recommend the polling of Rasmussen and Schoen exploring the differing views of the political class and nearly everyone else compiled in their book Mad as Hell.
 

I would recommend the polling of Rasmussen
# posted by Bart DePalma : 11:31 PM


Why? Rasmussen had a really shitty record in 2012. He is as clueless as you.
 

My headline earlier posted on the election results:

SILVER TAKES THE GOLD!

can now have added this subheading:

WHILE OUR YODELER TAKES THE BRASS!

Rasmussen? His poll-dancing is the equivalent of porn.
 

Shag:

Are you a complete knee jerk reactionary? Mention someone of whom you do not approve, shout on blog?

This was a collaboration of Rasmussen and the Democrat Schoen to examine the attitudes within groups of people in an attempt to illuminate our ideological divide over a period of several months, not a horse race poll.

BTW, no pollster predicted 2012 - a general drop in turnout with whites staying home the most. All the pollsters predicted a high number of likely voters with wildly different guestimates as to composition.
 

It's too bad the Andrew Sisters are not around to serenade our yodeler with a chorus of:

"Bei Mir Bistu 'Schoen'"

as our yodeler tries to explain what his lying eyes see.

Our yodeler can be expected to use the George Costanza defense: "It you believe it, it's not a lie."
 

Blankshot, you predicted a Mittens landslide without the slightest evidence supporting that view. I plan to keep reminding you of that until I retire from arguing with idiots.
 

There's no such thing as "lasting damage" to major parties in a two-party system. Each party gets about half of the people. If one party starts to do better than 50% then the center just moves to compensate.
 

I think the Whigs suffered "lasting damage" in the mid-1800's. But our political system was freer in some significant respects back then, fewer people could vote, but there were less attempts to restrict the choices they'd have.

Now access to the ballot and the media are so tied up by the major parties that it probably is true nothing of the sort could happen again. Though I'd be delighted to be proven wrong about this.
 

Brett seems to be attempting to re-engineer (revise) history. His view of history is as competent as his views of the Constitution.
 

Over at the VC, First Amendment Genie Volokh's post "The Original Meaning of 'the Freedom of the Press' and Non-Political Speech" is a reminder that I still have about 15 pages to read to finish Prof. Sonja R. West's article "Awakening the Press Clause." At page 1035, West states: "Some propose that the Press Clause proctets a particular technology -- the printing press.56" Note 56 refers to a Volokh VC post in response to Citizens United. But First Amendment Genie Volokh in his recent post does not reference the"potted plant" equivalent for the Press Clause.
 

"But our political system was freer in some significant respects back then, fewer people could vote, but there were less attempts to restrict the choices they'd have."

Yes, "freer" here means blacks (de facto) and women (de jure) couldn't vote, just to cite the obvious cases. Let's not forget poll taxes and other ways to suppress the rights of the poor.

Then, we have the much more restrictive (including an early law on regulating corporate donations; sorry, that was 1907, after the expulsion from Eden) law on protected speech. Support of certain causes was deemed downright criminal.

This sort of thing "restricted choices" a tad. We don't have something as bad as slavery [I realize Brett, with his KKK references and such, thinks AA and gun regulation is of that caliber, but somewhat atypical] to uproot the parties, but major shifts did occur -- see the shift in the Republican Party in the 1960s and the DLC shift of the Dems in response. Or, the Tea Party type shift of the Republicans (where Orin Hatch is suspicious).

BTW, I read the article Shag cited & it's nice to see he read some of Eugene (sic) Volokh's piece. The "potted plant" there is not "the press" (under EV's argument, I'm using "the press" now) but in effect "the media."

I think the "the press" should have certain protections like a modified press privilege regarding protecting sources. But, I think both articles are valuable. I realize this violates the "it's so obvious" stance of some.
 

Bart:

(1) They are still counting votes, especially in California and Obama's margin/totals continue to increase.

(2) Given that your pre-election predictions were not only wrong, but arrogantly and ignorantly wrong, and given that the same was true in 2008 (I remember the "Bradley effect means McCain will win PA!" nonsense), why should anyone, Republican or Democrat, take you seriously now?
 

I finally finished Prof. Sonja West's article and it was a worthwhile read despite my continuing (but improving) reading problems. Prof. West recognized the difficulty in defining "press." She does not aim in this article to come up with a recommended definition, leaving that to a future article by her. (I have checked the 'net without finding such a future article.) Prof. West feels strongly that textually the Press Clause is distinct from, while related to, the Speech Clause. She recognizes that the Court's overprotectiveness of the Speech Clause cannot be extended to the Press Clause. The Court seems reluctant to take a stab at defining the Press Clause and separating it from the Speech Clause.

Joe's reference to Eugene [sic] Volokh reminded me that I have not read his recent article "Freedom for the Press as an Industry, or for the Press as a Technology: From the Framing to Today" published in 160 U. of PA L.S. 459 (2012) in its entirety; rather I have read Eugene's [sic] postings at the VC and perhaps perused an earlier draft of the article.

Eugene's article runs 87 pages and because of Joe my eyesight will have the challenge to read it in its entirely. Prof. West's article is briefly reference in footnote 6. I hope to make inroads on Eugene's article today. Perhaps Prof. West is digesting Eugene's article as she may be preparing her follow-up article attempting to define, narrowly, the Press Clause.

Originalism is far from a science, as are other theories of constitutional interpretation/construction. Eugene's article closed with this sentence [I peeked at his Conclusion]:

"The goal of this Article is simply to say that an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent."

Perhaps linguists and historians may differ.

Assuming one buys into the press as a technology view, consider how both Profs. West and Volokh (and others before them) had to remove blinders to look outside the four corners of the Constitution for answers that may not be final.

And Joe, thanks for providing, as usual, balance.
 

"because of Joe my eyesight will have the challenge to read it in its entirely"

uh huh. I feel so special.

Anyway, life's complications for me in this area make it more interesting. I also think it matches reality, but any port in the storm.

Enjoy & thanks for the article. It was as noted interesting. BTW, Brett has a follow-up, apparently, at Concurring Opinions, but I'll leave that thread be as I will this one. Happy reading.
 

The "speeches" section of the USSC website mainly has stuff from Stevens, the latest interesting as usual. Election connection: discussion of judicial elections.

http://www.supremecourt.gov/publicinfo/speeches/speeches.aspx


[11/9/12]
 

DePalma writes: Obama won reelection by being better than Romney at making voters so sick of the political process that they stayed home.

As the physicist said: this is not even wrong.

But it's the Rove line. Democratic voter suppression! DePalma, who predicted an outstanding Romney victory, hasn't gotten out of his bubble; still parroting Fox News; as then, so still now.

Obama won reelection because the Etch-A-Sketch Candidate could not shake in all those flips (I was for _____ before I was against _____), lies (Jeep production is moving from Ohio to China), evasions (tax returns? what tax returns? I don't have to show you no stinking tax returns!). His overseas tour started out ineptly, by insulting the Brits.

Obama also won reelection because Republicans are so mean! Mean to women (legitimate rape, a baby from a rape is God's plan, abortion is never necessary to save the mother's life), mean to Hispanics (self-deportation, racial profiling), mean to African-Americans, to poor people... It's hard to win an election when your party is so mean!

Republican attempts at voter suppression seemed in part to backfire as voters stood for hours in lines waiting for their opportunity to exercise the franchise. But we don't know how many gave up after some hours. These were not the polling places in Shaker Heights.

However, according to the Pew study of non-voter attitudes, 3/4 of them were for Obama. So what is suppressing their votes?

 

I finally completed my reading of Prof. Eugene Volokh's exhaustively researched article on the First Amendment's Press Clause. It is not clear to me whether Volokh is a dedicated originalist but he employs originalist techniques with this article covering pre-Framing to the present, mostly with decisions of various courts, both English, Colonial and American. I don't know if there have been any scholarly critiques of his article by other First Amendment scholars, historians (legal and otherwise) or linguists. If so, I would be interested in reading such critiques.

I would hope that Prof. Sonja West's plans for a follow up to her earlier article may soon be forthcoming and might address Volokh's article.

In any event, in my view Volokh's article demonstrates the failings of originalism as a theory of interpreting/construing the Constitution. Original understanding/meaning on the part of framers, ratifiers, the public cannot be ascertained primarily by a handful or two of legal opinions that might not have filtered beyond lawyers to the vast public at the time. As one who grew up with the concept of the "Fourth Estate," I find it difficult to conclude that the framers, ratifiers, public back then considered "press as technology." The technology of the press was of course quite important. Focus on the history of the technological improvements of the printing press especially in the past few decades with the Internet and cell phones that via social networks and otherwise can permit someone with a cell phone and the proper apps to publish widely. The founders', framers, ratifiers, public understanding of commerce, for example, as it evolved, just as with press as technology today, was inadequate.

Volokh, at pages 469-70 of his article does mention Thomas Jefferson's statement that, "were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." Volokh concludes the paragraph with:

"But Jefferson spoke of newspapers, not newspapermen. There is no reason to think his praise or the Free Press Clause, excluded newspapers as a means of propagating the views of authors who weren't part of the press-as-industry but who occasionally submitted their articles for publication."

I don't know if this is fair to Jefferson. Perhaps Jon Meacham's recent biography may shed some light. No, it's not just newspapers and the like, but other writings that are published. And it takes writers, including newspapermen, to produce the writings that the technology publishes. While Jefferson may not have spoken of newspapermen, he didn't have to as the technology of the press would not be able to publish without them.

Maybe the recent technology advances broadly applies the Press Clause as much as the Speech Clause. But that's not the same as the Fourth Estate that has served us well in recent decades (e.g., Watergate, Iran/Contra, WMSs, etc). Newsgathering deserves some protections under the Press Clause that may be distinct from the Speech Clause. To say that because of the current technology everybody with a cell phone and the proper apps is a newsgatherer may be farcical.