Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

"Isn’t there something creepy about Starbucks’ CEO Howard Schultz having... 'asked his Washington-area employees to write "Come Together" on each customer cup today, tomorrow and Friday, as a gesture to urge leaders to resolve the fiscal cliff'?"

Asks Mickey Kaus.

Did Schultz take a poll of his employees–sorry, “partners,” he calls them–before ordering pressuring asking them to join in this lobbying effort? What if he were, say, the CEO of Chick-fil-A and he “asked” his “partners” to write “Preserve the Family” on the outside of cups and containers?

I’m not saying what Schultz did is or should be illegal, certainly not in a Citizen’s United world. If he wants to run a hybrid coffee-shop-political-organization, that’s fine with me. But maybe he should have made that clear to his workers when they signed up.

What troubles me about the slogan "Come Together" is that it's a pretty obvious reference to the Beatles song that begins with Lennon saying "shoot me" over and over. Given the recent massacre — and the fact that Lennon himself was shot to death — it's not good resonance.

As for an employer telling employees what to say to customers, I've got no legalistic problem with that. The first job I ever had was as a waitress, and I was required to greet the customers with the lengthy "Hello, my name is Ann, and I will be your waitress tonight." How do you give that wooden line a good reading?

I'd much rather say "Come Together," especially if I was serving muddy water, brewed with a mojo filter.

"Time honors Sandra Fluke as 'Person of the Year' finalist."

That's the Breitbart headline for an item that begins "Just when you think Time magazine can’t make any more of a mockery of itself...." But there are 40 individuals on Time's "Who Should Be TIME's Person of the Year 2012?" which gives readers a chance to vote. Included on this list are many minor newsworthy figures and many whose contributions were not clearly positive. Bashar Assad and Kim Jong Un are on the list — "honored." Nice by not really world-changing figures like gymnast Gabrielle Douglas are included.  The click-through gallery is in alphabetical order, and the first picture that hits you is a conservative old white guy, Sheldon Adelson. Now, he's not presented in a positive light:

In the post-Citizens United era, Sheldon Adelson became the public face of what critics cast as a plutocrat class trying to buy U.S. elections. But it's not clear how much the conservative casino magnate got for his money — other than a heap of bad press.

Time's perspective is obviously liberal, but within that perspective, it's quite a concession to say that Citizens United hasn't been a horror show.

Anyway, Time made an effort to amass an interesting list of people who made the news for different reasons or who represent different cultural and demographic sectors. There's E.L. James and Jay-Z and Psy. Did they "influence the news" (Time's stated standard)? The real problem here is that it seems that Barack Obama is the necessary choice for 2012, and that's simply too boring.

And in fact, he is not winning in the readers poll. The readers have decisively chosen Malala Yousafzai. She has the least negative votes ("no way") and is coming in 3d on positive votes ("definitely"). Ahead of her on the positive list are Mohamed Morsy and — I guess the vote-for-the-worst crowd is out in force — Kim Jong Un. Malala Yousafzai is the face in the gallery that makes your heart zing. I clicked through the whole thing without feeling like hitting a definitely/no way button until I got to her. I still didn't vote, of course. (My female heart is well-defended against the outreached arms of commercial media.)

Sandra Fluke's no votes far exceed yes votes —  24,809/9,356  — but I would guess that outrage from the Breitbart crowd will now skew the vote. I don't know which way, but for Time, traffic is traffic and it will experience a nice boost from the inclusion of Fluke. The "Person of the Year" event — and this post gets my "annual nonsense" tag — is a nice commercial gambit for Time. So:

Who made a mockery of itself?
	Time
	Breitbart.com
	Both
	Neither
pollcode.com free polls

The Egyptian with the "Shut Up America" sign is more like us than you may realize.

"Professor, I hope that you will make your addendum a second post," said the commenter Lyssa. "These rights that are so fundamental are not so protected as we would like to think."

All right. That's what follows. And here's what it was an addendum to — a post about a man in Cairo holding a "Shut Up America" sign and saying "We never insult any prophet — not Moses, not Jesus — so why can’t we demand that Muhammad be respected?" People in the comments at my post assume that protecting blasphemous speech was obviously the American tradition, and the man's request was outrageous. But:

We're not that far from criminalizing blasphemy in the United States, though it seems obvious to educated Americans today that these laws are unconstitutional. Here's a quick summary of the history of blasphemy law in the U.S.

And here's the 1952 case Joseph Burstyn, Inc. v. Wilson where the Supreme Court struck down a New York law that banned showing "sacrilegious" movies. New York's highest court had interpreted the statute to mean "that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." The U.S. Supreme Court said:

[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

My point is: it took a Supreme Court case as recently as 1952, to establish that principle in our country, with its rich free-speech tradition. Lawyers even saw fit at that time to argue that movies shouldn't get free-speech protection at all because "their production, distribution, and exhibition is a large-scale business conducted for private profit."

Oh, wait, the President of the United States today argues that corporations don't have free-speech rights, and many Americans, including highly educated lawyers, are saying the Constitution should be amended to delete those rights.

Let's not be so quick to assume the man with the "Shut Up America" sign is thoroughly alien. The threats to free speech lie within. They always have.

"We never insult any prophet — not Moses, not Jesus — so why can’t we demand that Muhammad be respected?"

Asked a man holding a "Shut Up America" sign outside the American embassy in Cairo.

"Obama is the president, so he should have to apologize!"...

“We don’t think that depictions of the prophets are freedom of expression. We think it is an offense against our rights,” [said Ismail Mohamed, a religious scholar.] “The West has to understand the ideology of the people.”

Even during the protests, some stone throwers stressed that the clash was not Muslim against Christian. Instead, they suggested that the traditionalism of people of both faiths in the region conflicted with Western individualism and secularism....

Some commentators said they regretted that the violence here and around the region had overshadowed the underlying argument against the offensive video.

ADDED: We're not that far from criminalizing blasphemy in the United States, though it seems obvious to educated Americans today that these laws are unconstitutional. Here's a quick summary of the history of blasphemy law in the U.S. And here's the 1952 case Joseph Burstyn, Inc. v. Wilson where the Supreme Court struck down a New York law that banned showing "sacrilegious" movies. New York's highest court had interpreted the statute to mean "that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." The U.S. Supreme Court said:

[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

My point is: it took a Supreme Court case as recently as 1952, to establish that principle in our country, with its rich free-speech tradition. Lawyers even saw fit at that time to argue that movies shouldn't get free-speech protection at all because "their production, distribution, and exhibition is a large-scale business conducted for private profit."

Oh, wait, the President of the United States today argues that corporations don't have free-speech rights, and many Americans, including highly educated lawyers, are saying the Constitution should be amended to delete those rights.

Let's not be so quick to assume the man with the "Shut Up America" sign is thoroughly alien. The threats to free speech lie within. They always have.

Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."

She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."

But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:

“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."

But the news media got their sound bite: Unfortunate!

She was also prompted give the other side a sound bite:

Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.

"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."

Not ideal! Take that!

Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.

"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."

It's unusual... not how that time is usually spent....

I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.

Ironically, that's a civics lesson.

"Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United..."

"... or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration."

Writes Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissenting from the Supreme Court's summary reversal of the Montana Supreme Court's decision, which — as the majority put it presented the question "whether the holding of Citizens United applies to the Montana state law":

There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

(PDF.)

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:

The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 

See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

The misuse of Citizens United in bemoaning Scott Walker's recall victory.

Michael McConnell — the Stanford lawprof and former federal judge — has a fine op-ed in the Wall Street Journal. The effect of Citizens United "was almost exactly the opposite of" what anti-Walkerite pundits like the Greg Sargent and Lawrence O'Donnell have been saying.

Labor unions poured money into the state to recall Mr. Walker. According to the Center for Public Integrity, the NEA (National Education Association), the nation's largest teachers union, spent at least $1 million. Its smaller union rival, the AFT (American Federation of Teachers), spent an additional $350,000. Two other unions, the SEIU (Service Employees International Union, which has more than one million government workers) and Afscme (American Federation of State, County and Municipal Employees), spent another $2 million. Little or none of these independent expenditures endorsing a candidate would have been legal under federal law before Citizens United.

By contrast, the large spenders on behalf of Mr. Walker were mostly individuals. According to the Center for Public Integrity, these included Diane Hendricks, Wisconsin's wealthiest businesswoman, who spent over half a million dollars on his behalf; Bob J. Perry, a Texas home builder, who spent almost half a million; and well-known political contributors such as casino operator Sheldon Adelson and former Amway CEO Dick DeVos, who kicked in a quarter-million dollars each. Businessman David Koch gave $1 million to the Republic Governors Association, which spent $4 million on the Wisconsin race.

These donations have nothing to do with Citizens United. Individuals have been free to make unlimited independent expenditures in support of candidates since the Supreme Court case of Buckley v. Valeo (1976).

And this is the pattern we should expect generally, McConnell says, because business corporations don't want to offend customers by putting their names on partisan advertising. It's the unions that don't mind associating their names with one party — the Democratic Party. Sure, those rich individuals who get their money working for corporations can spend all they want, but recognition of their right to do that pre-dated Citizens United by more than 4 decades.

NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....

But:

On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

"There’s no sugarcoating what this loss means for organized labor."

Writes WaPo's Greg Sargent, whom I normally don't link to because he's such a sugarcoater.

Unions invested heavily in this battle in order to make an example of Walker. The goal was to show that Republican governors who attempt to roll back organizing rights will pay the ultimate political price. That effort failed, and the failure will have major repercussions for labor groups as they gear up for future fights over bargaining rights in states.

Okay so far, but then he descends into the kind of writing that is why I don't normally link:

But Walker’s win also has major implications for Democratic elected officials across the country. It shows with crystal clarity that Republicans may very well be able to successfully use the new, post-Citizens United landscape to weaken the opposition in a structural way, and to eliminate major sources of support for that opposition....

Indeed, one way of thinking about tonight’s results is that they say at least as much about Citizens United, and the ways it has empowered opponents of organized labor, as they do about the very real decline of union power. An analysis by the Center for Public Integrity found that Walker outraised his vanquished opponent Tom Barrett by nearly eight to one, and that outside groups supporting Walker vastly outspent unions, thanks to Citizens United....

[I]t seems unlikely that tonight’s outcome says anything too predictive about this fall.

But the outcome does say something important about the developing post-Citizens United landscape, and should prompt a major reckoning over how Dems, the labor and the left should deal with this new reality going forward.

Thanks for the "crystal clarity," Greg.  Think you could say the words "Citizens United" a few more times? Actually, there was another one that I didn't quote, a first-paragraph reference to "the true nature of the new, post-Citizens United political landscape." I wish some reliable pollster would take a reading of the level of understanding of what the Citizens United case actually stands for.

I mean, here we have Sargent writing "outside groups supporting Walker vastly outspent unions, thanks to Citizens United," but Citizens United was about the free speech violation in restricting unions — along with corporations — as they spend their own money getting out whatever it is they'd like to say about politics. If unions were outspent, it wasn't because of Citizens United. It was because they had less money to spend or chose to spend less money.

Sargent is getting his column very widely distributed, because it's in the Washington Post. Would he welcome a government regulation that restricted the distribution of the Washington Post to create greater equality among opinion-writers? Or would the concept of free speech acquire some substance for him at that point?

Spelling time again.

The best blog coverage, year after year, is at Throwing Things.

ADDED: "doo buh TAHN tay: The attitude of the Montana Supreme Court towards Citizens United."

ALSO: Here's some detail about that Montana case, from George Will.

Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law, passed when copper and other corporations supposedly held sway, that bans all corporate political spending. The state’s Supreme Court refused to do this, citing Montana’s supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations’ failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court.

"Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law?"

Asks Howard Wasserman at PrawfsBlawg (via Instapundit):

Some of it is that the Court had to overturn precedent, but... this was not a particularly venerable precedent and it was only one in a broader body of case law. Some of it is the process — relisting, ordering new briefing, etc.... Some--and I suspect a lot — of it is recency bias — the most recent case is the most important case and the one to praise or criticize....

Another theory: Criticism of that case merged nicely with the pervasive liberal rhetoric scaring us about the power and influence of corporations.

"The Brown-Warren agreement does not seek to equalize spending between the two candidates, both of whom are well funded."

"It is a sort of suicide pact, providing... that the two 'donate to charity half the price of ads that are run in their name in the state.' Says Brown: 'By having 50 percent of that negative or positive ad buy go to charity of the other person's choice, it's an incentive to keep those groups out.'"

Brown is pandering to Massachusetts liberals who hate Citizens United and don't understand the underlying principles of free speech.

"Occupy the Courts" protests hit the U.S. Supreme Court building and other federal courthouses today.

Why pick on the courts? The protesters wanted to express the opinion that Citizens United was decided the wrong way. As if it's admirable for courts to decide cases the way protesting throngs want them decided!

The protesters say they'd like a constitutional amendment. Cut back on the First Amendment? I remember a few years ago when there was a clamor to cut back the First Amendment to protect the flag which the Supreme Court said people had a free-speech right to desecrate. It turned out to be an embarrassment for everyone who didn't revere the Bill of Rights.

Asked if a constitutional amendment is a realistic goal, Joan Stallard, a demonstrator from D.C., said, “The constitution has been amended 27 times, and we can do it again.” She said more and more of the public is beginning to understand “the power of corporations in our political system” and will be receptive to a constitutional chance.

Yeah, but we never cut back the First Amendment.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

Those people who think Citizens United was wrong because it saw corporations as people with free speech rights...

... what do they think about Google's stand against SOPA? Google is a big old corporation with way too much money and power....

Things that feel inconsistent with the notion that Gingrich is the frontrunner for the presidential nomination.

1. His people keep emailing promos for cheesy merchandise like this:



The authors of "Rediscovering God in America" are — purportedly — Newt and Callista Gingrich. Seriously, why would you rediscover God with them? Okay, because I'm blogging about it, I clicked through to the website. I see that these books "featuring the photography of Callista Gingrich" come "with an autographed certificate of authenticity." Does Callista certify that she does her own photography or just that these really are the books they purport to be? When was the last time you held a book in your hands and wondered hey, is this book really this book?

There's also a DVD in the boxed set:

Take a walk through our Nation’s Capital with Speaker Newt Gingrich and his wife, Callista Gingrich. From the National Archives to Arlington National Cemetery, this film illustrates the importance of our Creator to our nation’s founders and their successors. Based on the New York Times bestselling book, Rediscovering God in America, this documentary reminds us that America is indeed “One Nation Under God.” Produced in partnership with Citizens United.

Citizens United even!  This would be a great gift for freaking out a lefty friend. Lefty or righty — does anyone really want to "take a walk" with Newt and Callista and listen to their pedantry about "the importance of our Creator"? These 2 characters were having  adulterous sex and lying about it while he was leading the House of Representatives getting Bill Clinton impeached for having sex with Monica Lewinsky and lying about it. And now they're raking in $34.99 payments for pontificating about God. God and government. Ugh. Seriously, though, this is a kickass Christmas gift for your left-wing atheist aunt.

And "Sweet Land of Liberty" is perfect for the kids of your left-wing friends and family. This book is supposedly written by — "[a]uthored by" — Callista Gingrich (who has the sense not to claim to have painted the pictures).

I guess I admire their entrepreneurial spirit. These items really are pretty cheap. I'm sure they do lure a lot of perfectly nice people into deciding that thinly veiled political propaganda would make for nice Christmas presents. But this guy is supposed to be leading the pack right now, running for President. We're all looking at him. And this merchandise is insipid and embarrassing.

7th Circuit strikes down Wisconsin law limiting contributions to political action committees.

Milwaukee Journal Sentinel reports:

Wisconsin has long had a $10,000 limit on how much one could give each year to political action committees. But the panel said that law is not in keeping with the U.S. Supreme Court's ruling last year in the Citizens United case, which determined that corporations and unions can spend freely in elections.

"Citizens United held that independent expenditures do not pose a threat of actual or apparent quid pro quo corruption, which is the only governmental interest strong enough to justify restrictions on political speech," Judge Diane Sykes wrote for the panel.

"Accordingly, applying the $10,000 aggregate annual cap to contributions made to organizations engaged only in independent spending for political speech violates the First Amendment."