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Terry Bennett

It seems to me a very difficult sell for a CEO to announce to stockholders, "We earned money, we paid tax on it, it's available for distribution back to all of you who put up capital or for reinvestment to increase future returns - but we're going to give it to Barack Obama instead of you." And yet this is happening. Stockholders should be livid, and watchdogs should be suspicious. Still, as long as it is disclosed, it is exactly the valuable info I posited earlier. As Jack points out, answering the question, "Where does this candidate stand?" is like trying to tackle a greased pig. If we can instead reliably answer the question, "Who wants this candidate elected?" it will generally be a short hop of deductive logic to get a grip on the actual agenda of the candidate.

Blast Dorrough

The real issue is whether the immense funds are being used to peddle disinformation via deceit, deception and outright lies designed to hoodwink voters. It is public knowledge that this is the political purpose and the end result.

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Terry: And redundant. Here in Alaska where we've experienced the influx and dominance of the oil industry those who came with the industry or count on it for their living can mostly be counted on to "vote oil" and to think of environmental advocates as something in the way, or worse.

I'd say the same for unions. Were we to outlaw funding from organizations, oil, enviro, or unions could likely do as well with endorsing a slate of candidates, without the mischief at the top.

For example those who happen to work for, say, a Koch Bros enterprise are helping to fund their agenda which mostly looks like it provides little benefit to working folk.

When, or if, pushed back down to the real grassroots of "one man one vote" then any of those being led by their industries or other affiliations, can defect if they see excess or corruption.

Coalescing the money and the power in the hands of few is not good for what we have left.


Mitchell K. emphasizes a point that the Citizens United majority tried to pass off, but even the majority realized the weakness of the argument due to the facts of life.

It is nice to think that Americans are smart enough to analyze negative advertisements or to ignore them. The facts do not bear this out. Out of a dozen examples off of the top of my head, I will choose the NRA, a group with an excellent track record for funding opponents to any legislator who tries to introduce gun control legislation. The NRA pours millions into local primaries or elections, which results in a 4 out of 5 win rate.

When was the last time you heard about gun control legislation passing either house? In fact, when was the last time you heard about either house renewing the modest older legislation?

Mountains of data shows how disproportionate negative advertising drastically tips the scales into the richly-funded candidates favor, but the Citizens United majority ignored these facts by elevating a narrow case into a facial-challenge and by failing to remand the case for a fact-finding hearing after they decided to expand the scope into absolutist terrain. The Court's naivete was purposeful, as unlimited spending disproportionately helps the party of the rich.

It is all fine and dandy to presume that "liberals" are condescending when pointing out the data, just as these "liberals" are presumably condescending when pointing out that the majority of the Republican party in six primary states (so far) believed that Obama is a non-native-born Muslim, but it is also time to acknowledge that hundreds of millions of dollars of negative ads has less to do with informing the public and more to do with brainwashing and with Pavlovian cues.

And not to beat a dead horse, but Stevens' dissent points out a number of logical flaws with the majority opinion, including the fact that a few "voices," i.e. corporations or billionaires, can take up the limited broadcast time slots and drown out the voices of everyone else regardless of popular support. Also, the corporations get to use shareholder money -- without their support or approval -- in unlimited amounts for whatever political purpose the board of directors decides. Yes, the majority rejected the need for a separate pool where individual corporate members could voluntarily combine money and spend it -- instead, the handful of directors can spend everyone else's money as well!

The First Amendment was clearly intended to protect the individual speaking in public or passing out political fliers on the street corner. It defies rational logic to extend the idea of a person to an artificial legal entity designed only to generate profit and to extend the idea of speech to multimillion dollar broadcast transactions.


A typo?

"...other modes of communication, effectively infinite in number, accessible costly over cell phones, laptops, and other electronic devices."

Terry Bennett

I believe Adam is right - the American electorate is often collectively stupid, and we suffer as a society for it. However, this viewpoint can also be oversubscribed. If a black man applies for a job and doesn't get hired, he can fall back on the reliable crutch of, "It's because I'm black." Having such a ready excuse for all failures simply makes it easier to fail, and benefits no one. Similarly, certain politicians routinely seem astounded that any sane person can disagree with them, and when things don't go their way they publicly announce their genuine conclusion that the other side consists of morons. The big secret is that the other side is also often mystified that their point of view cannot be grasped by their opponents.

The American people are divided, and it isn't because one side has a monopoly on brains. It is because the American experience is diverse. New Yorkers like to say to visitors, "If you haven't seen Manhattan, you haven't seen America." The rural retort to this sentiment is equally true: if you have only seen Manhattan, you haven't seen America. New Yorkers see guns as something used by criminals to rob them on the street, and want them banned. In Wyoming, a gun is a tool for harvesting food, and those people want the right to keep harvesting food. Like blind men groping the American elephant, each is partly in the right and all are in the wrong.


Too dust off an old clich'e, "Power corrupts and absolute power corrupts absolutly". Or too put it another way, "Money corrupts and the more there is, the more it corrupts"... Once again, raising the specter of the Courts and a lack of Commonsense... ;)

Keith Moon

"Posner analysis is well reasoned, but refuted by the First Amendment: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."

Hear ye hear ye: The judiciary is NOT granted the power to amend the Constitution. Both the Left and Right differ, primordially, in *which* of my privileges and immunities they'd like to legislate or jurisprudentialize away...

Last but not least, if you're in favor of a law, whatever its aims, that both prima facie offends the 1st Amendment, and allows the government to selectively prosecute, fine and jail writers of political books and makers of political documentaries - you have slipped into the sort of crypotfascism and selective invocation of the Bill of Rights that the Left typically accuses the Right of - often with genuine cause.

Anyone familiar with the background of the case would not merely whine about evil corporations creating more negative ads, but ask whether letting a partisan government decide which books to ban comports with our vision of the country.

Posner is conflating a policy analysis with a legal analysis, and should know better.

Keith Moon

@Michael: The touchstome of Constitutionality is the Constitution itself, not jurisprudential treebranching which trims, qualifies and ablates text to get to a different result.

The alternative is to give the judiciary the power to amend, in essence and in fact, the Constitution. It's hard to see how this comports with the bare notion of government enjoying legitimacy only with the will and consent of the governed.

It does us little good to regard 'Congress shall make no law' as not meaning what it says.

The next time they criminalize the act of publishing a book or making a film - it might be aimed at the sort of politicians you might like - presumably those who think the touchstone of Constitutionality is whether or not they agree with the presumed goal of the legislation.

- Logic 101.


Keith, The "Constitution" is not a document cast in stone like the "Ten Commandments" to be utilized throughout the ages without revision. It is a "living" document that simply sets out some the "details" of how things ought to be done and so we have the Congress, the office of the Presidency and the Judiciary trying to make it fit, hopefully, simple Commonsense and the temper of the times; in line with the dictates of its Preamble (which is cast in stone). Which is what I took away from "Con. Law".

As they say, "What good is Freedom of Speech when it has already been bought and paid for by the highest bidder" and that includes the voters and votes as well... ;)

Hap Freiberg

According to former SCOTUS Chief Justice William Rehnquist the need for finality in legal proceedings can take precedence over fairness:

Federal courts “sit to ensure that individuals are not imprisoned in violation of the Constitution – not to correct errors of fact.”

“Due process does not require that every step conceivable step be taken, at whatever cost to eliminate the possibility of convicting an innocent person."

In essence, legal conservatives on SCOTUS and elsewhere subscribe to the idea that fairness, justice and other non-legal concepts are inferior to those of a 200+ year old document that is interpreted by nine presidential appointees.

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges , to beg in the street, and to steal bread."
Anatole France, 1894


The notion that First Amendment protection should be circumscribed, out of fear that an ignorant electorate may read too much or too little into political speech, is paternalistic and no doubt appealing to advocates of totalitarian government, for that is where such a view inevitably must lead. Why should you trust anyone who claims they want to "protect" you from speech that, in their judgment, you should not hear? Americans can and should listen, then make up their own minds. That is, to paraphrase Holmes, let ideas openly compete in the marketplace and trust to listeners to exercise reason in weighing their merit.


affl, According to your understanding, where do you place Schenk vs. U.S. and the "Clear and Present Danger" Doctrine? BTW, the unanimious (the rule of nine) decision was written by none other than Justice Holmes... ;)

Hap, according to the "Scotus Line" I guess Edward Coke's dictum, "if it be against reason - it has no force in Law" is of little consequence. Even though it holds longer and greater value as Precedent than some two hundred year old scrap of paper... ;)

Taylor Bollman

I've posted an argument on my blog consistent with Mr. Posner's argument but focused on how many of his conclusions follow from some of the real-world considerations on which the Court's view was naive together with principles on which all on the Court agree to in the decision.



"Unanimious"? Becker-Posner Blog, Jersey Shore Edition?


affl, Is that all the better you can come up with? A typo error as a counterargument? Still seems you got the point. As for the "Gersy Shoore Edition" you're a little off. I was born in Plainfield and still have friends down at "Tourty tourd and Tourd Streets in Pourt Ambouy"... ;)


Tans -- You repeat well the "lessons" of Pres. Reagan quelling dissent by proclaiming "I PAID FOR THIS MICROPHONE".

But...... those still having aversions to the mauling of language along the lines of "Brave New World" will quickly note, and cringe, at your substitution of "speech" for the practice of VERY wealthy minorities not only amplifying their speech by the "traditional" means of taking control of the mic and buying up advertising spots but as we see with the Clear Channel mess of a small cabal pumping propaganda from over 1,000 radio stations using O U R broadcast airwaves for free.

As Germany gave up its democracy to the Third Reich I suppose there were those more susceptible who "bought in" first and then after awhile even those seeing through the charade were powerless to turn the boat around. Do you ever worry along those lines?


There are a lot of comments about how ignorant the electorate is, but the same ignorance is evident in these posts.

I'm all for restricting the rich who run the New York Times, an extremely wealthy corporation. CNN? ABC? Disney who owns ABC? GE? Doesn't GE own NBC? Didn't GE pay no taxes? How are they representing the machinists, plumbers, small factory owners? Matt Lauer makes more than A-Rod per year, can we restrict his opinions? How about MSNBC? Do we shut down MSNBC because Bill Gates is the richest man in the world? Koch brothers are the boogy man as opposed to Soros, Gates, and the people who work for Goldman who gave more money to the president than they have ever given to any politician ever. New York and Wall Street all support Democrats. Hollywood and California support democrats, but a couple people in Kansas and the Republicans are the party for the rich? Who benefits from all the rules when politicians can make exceptions, maybe the rich? Has no one here has paid attention to the waiver process out of the HHS?

It is really sad, but I would put more faith in the general public than a lot of people posting here because they aren't spending as much time having their prior biases re-affirmed by the political propaganda.

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Campbell Austin

Has anyone proposed REQUIRING super pac donations be anonymous?

Posner rightly points out that super pac "donors ... are known; and it is unclear why they should expect less quid pro quo from their favored candidate if he’s successful than a direct donor to the candidate’s campaign would be."

Phrasing the issue this way presents an obvious solution--anonymize the contributions. If all donations were anonymized, then it woudl be much harder to draw the connection between the donor and the donation, and reduce the effectiveness of the "bribe". Meanwhile, free speech would still be protected, because the donor would still be able to fund whatever message he wanted to broadcast.

There might be a second benefit--donors, wishing to gain support for a particular position, would pay for ads supporting that position, rather than expecting a quid pro quo for making the contribution. This could have the salutary effect of reducing spending on generic negative advertising (which would be relatively untraceable to a particular donor or cause) to the benefit of issue advocacy (which presumably would be).


Austin: While secrecy would be helpful in the case of donating to candidates, in the case of super-pacs it would not.

Nearly all super pacs are set-up to promote one bias or another or to favor say the "freedom of oil companies from costly and pesky regulation".

Donors of course know that the Cmte Favoring Cinamon on Apple Pie is in fact yet another organ of the Koch Bros favoring the ALL FOR THE RICH agenda (that is stifling our economy) and a host of other right wing extremist positions.

The quid pro is IN that of directing moving legislation (see ALEC?) or moving the political landscape to favor election by "their" candidates.

Powerful as a super-pac may be they're not positioned to gin up a an earmark favorable to one or a few citizens or craft a tax law favoring a credit for those using domestically produced silk for neckties.

The candidate, of course, is in that position so blind donating could help to elect the candidate for whatever, general, reason the donor favored but could not go to the guy after election and prove he'd "given the max" in the primary, general and the allowable donation of the year before the election and expect big personal favors.

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