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By Gregory Taggart, June 11, 2012 12:54 pm

In The New York Times today, Adam Liptak writes about the 2010 Citizens United decision and a challenge presented by a recent Montana Supreme Court case that challenges that decision–contrary to the Constitution’s Supremacy Clause, but hey, nothing to see here.

In his write up, Liptak says the following:

In that same statement, Justice Ginsburg said the United States Supreme Court should now use the Montana case to weigh what the nation has learned since January 2010, when Citizens United overturned two precedents and allowed unlimited campaign spending by corporations and unions. The new case represented, she wrote, “an opportunity to consider whether, in light of the huge sums deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

What’s so hard about getting the bolded part right? What Liptak writes is misleading and could lead the unwary–all Times readers?–to think corporations can now give unlimited amounts of money to their favorite candidates. The bolded part is all the more misleading given that it’s followed by Justice Ginsburg’s quote that the large sums could “buy candidates’ allegiance,” again, giving the impression that the money will flow directly to the candidate.

What’s missing? The word “independent.” According to Citizens United, corporations and unions can make unlimited “idependent expenditures,” which Justice Kennedy says “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Thus, no money flows directly into a candidate’s pockets (and if it did, both candidate and corporation/union would be in trouble). And thus, the words “unlimited campaign spending” are misleading.

Note well that I’m not a Pollyanna. I realize that coordination could take place behind closed doors–subject, of course, to behing discovered. But that’s another post for another day. Today, I’m just pointing out the Liptak fudged. And that’s no good either.

UPDATE: By the way, it’s worth pointing out that according to former federal judge, now law Professor Michael McConnell, writing in The Wall Street Journal:

In a sense, Citizens United did have an important effect on the Wisconsin election. But the effect was almost exactly the opposite of what many pundits imply.

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).

I have seen no published reports of any corporate expenditures on behalf of Mr. Walker, though presumably the $500,000 Chamber of Commerce contribution to the Republican Governors Association fund came largely from corporate sources. Several groups also ran issue ads that presumably benefited Mr. Walker; these groups are not required to disclose their donors and may have received corporate contributions. Corporations and unions could run issue ads before Citizens United, as long as they did not clearly refer to a candidate.

For the most part, though, Mr. Walker’s direct, big-ticket support came from sources that have been lawful for decades.

His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Mr. Barrett would have been at even more of a financial disadvantage.

Interesting. (Emphasis supplied)

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By Gregory Taggart, February 17, 2012 9:21 am

Interesting article by David Pimentel of Florida Coastal School of Law on overprotective parenting, the resulting laws, and the implications for so-called free-range parents (I’m probably one). From the abstract:

In the last generation, American parenting norms have shifted
strongly in favor of Intensive Parenting, placing particular emphasis
on protecting children from risks of harm. Recently, a backlash to
this trend has emerged. “Free Range” parenting is based on the
concern that coddling children through overprotection inhibits the
development of their independence and responsibility. Indeed, a
growing body of literature suggests that parental overreaction to
remote and even illusory risks of physical harm is exposing children to
far more serious risks to their well-being and development. But the
powerful influence of media has sensationalized the risks to children,
skewing popular perceptions of the genuine risks children face and of
what constitutes a reasonable or appropriate response to such risks.
Consequently, individuals who do not buy into Intensive Parenting
norms, including those from different cultural and socio-economic
backgrounds, may be subjecting themselves to criminal prosecution
for child neglect and endangerment.

It appears that I’m on the anti-nanny-state warpath this morning, what with my Tweet about Santorum’s take on gambling.

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By Gregory Taggart, January 31, 2012 4:17 pm

Today on The Corner, Ramesh Ponnuru writes about the move by Republicans in the House and Senate to restore religious liberties abrogated recently by the Obama Administration, which

has decided to require religious institutions that offer insurance to cover contraception, sterilization, and abortifacients, whether or not they object to covering them. Churches would be exempt but not, for example, Catholic universities or hospitals.

My Twitter feed has been alive with conversation about what the Administration has done, but I’ve paid scant attention. I’ll be more attentive from now on because this disturbs me. At one time, I was anti-abortion but pro-choice. No longer. Over the years, I’ve changed my views to anti-abortion, give-the-child-up-for-adoption-if-necessary. To me, if there is any doubt about whether that life begins at conception, then the doubt should favor the possibility of life. Moreover, if Jefferson’s wall separating church and state means anything, it means something here in the domain of all things sacred to religious folk and institutions.

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By Gregory Taggart, June 8, 2011 3:23 pm

Ilya Shapiro nails it, and apparently, so did the judges of the 11th Circuit Court of Appeals. Obamacare–the Affordable Care Act–is and always has been about power. Washington wants is. The people, at least people like me, don’t want to give it to them.

As the lawyer representing 26 states against the federal government said, “The whole reason we do this is to protect liberty.” With those words, former solicitor general Paul Clement reached the essence of the Obamacare lawsuits. With apologies to Joe Biden, this is a big deal not because we’re dealing with a huge reorganization of the health care industry, but because our most fundamental first principle is at stake: we limit government power so people can live their lives the way they want.

This legal process is not an academic exercise to map the precise contours of the Commerce Clause or Necessary and Proper Clause — or even to vindicate our commitment to federalism or judicial review. No, all of these worthy endeavors are just means to achieve the goal of maximizing human freedom and flourishing. Indeed, that is the very reason the government exists in the first place.

And the 11th Circuit judges saw that. Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce.

In case anybody cares, I feel the same way about Climate Change. Even conceding that the globe is warming, I’m not willing to kneel before the would-be climate demigods, certainly not before them move from their Mount Olympus mansions and give up their jets. Yes, Al, I’m talking about you.

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By Gregory Taggart, April 27, 2011 8:41 am

Obama finally releases his long-form birth certificate (here’s the short form).

We do not have time for this kind of silliness,” Obama said. “We’ve got better stuff to do.”

Like releasing your college transcripts?

Save your breath. I’m not a birther. I am someone who wants to know why the man who leads this country is so unwilling to let his followers know who he is. I also want to know why the press has let him get away with it for so long. His stonewalling and their enabling–now that’s silliness.

UPDATE: The “silliness” continues as The Smoking Gun kicks the ball back into play. What Obama could have learned from the Nixon White House.

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By Gregory Taggart, April 25, 2011 11:22 am

Paul Clement 1, King & Spaulding 0.

Defending unpopular clients is what lawyers do.

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By Gregory Taggart, April 21, 2011 8:33 pm

NLRB tells Boeing to stay put.

Anything you say, comrade.

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By Gregory Taggart, April 4, 2011 1:44 pm

Mark Steyn on the First Amendment.

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By Gregory Taggart, February 14, 2011 11:29 am

“The [seven] defendants charged today, including two U.S. citizens, were prepared to provide millions of dollars in dangerous narcotics and lethal weapons to men they believed represented the Taliban,” U.S. Attorney Preet Bharara said in the statement. (emphasis supplied)

I think it’s called treason, and I think the penalty can be death. But, so what, if there’s money to be made.

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By Gregory Taggart, February 12, 2011 12:48 pm

Last August, Stephen Prothero, a religion professor at Boston University and a blogger on CNN, wrote two different posts about the Mormon reaction to a Muslim group’s efforts to build a mosque at Ground Zero. The first lamented the fact that some prominent Mormons–Mitt Romney and Harry Reid–had both spoken against the mosque. So had Glenn Beck. Prothero was particularly disturbed that Romney had done so (through a spokesperson) because he had been so impressed by Romney’s religion speech during the most recent presidential campaign and because of Romney’s experience with the opposition to the Boston Temple. (Prothero, by the way, seems to have a good grasp on Latter-day Saint history.) He writes,

As I wrote in my 2007 piece on this speech, for Romney, the moral of this history lesson was clear:

Americans today should rise above religious bigotry, not least by evaluating presidential candidates on the basis of their credentials instead of their religious tradition. After all, Romney said, “Religious tolerance would be a shallow principle indeed if it were reserved only for faiths with which we agree.”

These were the words that came to me when Newt Gingrich and Sarah Palin and other Republican leaders started to double down on the anti-Islamic rhetoric.

I thought that Romney, as a Mormon, might speak out passionately for the First Amendment. I thought he might remember how the founder of his religion, Joseph Smith Jr., was murdered by an anti-Mormon mob. I thought he might recall how the U.S. government brought down much of its coercive power against the Church of Jesus Christ of Latter-day Saints in the last decades of the nineteenth century.

Apparently not. According to a statement released on August 10 by his spokesperson Eric Fehrnstrom, “Governor Romney opposes the construction of the mosque at Ground Zero. The wishes of the families of the deceased and the potential for extremists to use the mosque for global recruiting and propaganda compel rejection of this site.”

The second discussed Senator Hatch’s position, which was captured by Salt Lake City’s Fox News 13:

Prothero’s reaction to Romney’s and Hatch’s statements prompted me to think about what my stance on the proposed mosque was back then. I realized that I disagreed with Romney. My stance was then and is now similar to Hatch’s: it would be a nice gesture if the mosque’s proponents chose to build elsewhere out of respect for what happened on 9/11; however, I recognize and support their 1st Amendment rights to build where they are planning to build.

I have a long memory, a memory that extends back to the persecution of my Church in the 19th and early 20th centuries, a memory of recent times when people in Boston, Billings, Denver, and places north and south, east and west, opposed the building of a Mormon temple–always for allegedly non-religious reasons. That opposition was a predictable as the rising sun was an irony that always escaped the protestors.

I suspect that religious bigotry imbues most of the opposition to the mosque as well. I don’t think Romney is bigoted. I do think he is in a rush to the Right, however, in his pursuit of the presidency. I have defended him in the past from the flip criticism that he flip flops a lot. I’ll take a flip from anybody if it demonstrates that they’ve learned something. However, too much pandering is not a good thing. I’ll be watching him closely, as I will Hatch, now that he’s pursuing the Tea Party vote.