# Could Montana get the court to reconsider Citizens United? **URL:** \ **Category:** Politics & Elections\ **Created:** [June 10, 2012, 8:43am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699 "2012-06-10T08:43:28Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 14, 2012, 3:55am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/101 "2012-06-14T03:55:40Z")
Of course advertising doesn’t work… Here’s another example of advertising not working: In the last California election, there was Proposition 29 on the ballot. This initiative asked Californians to put a levy on cigarettes and other tobacco products. This would go towards cancer research. California is one of the least-smoky states (only 14% of Californians smoke) and the state is among the lowest when it comes to taxing tobacco products (even with the additional buck a pack proposed with Prop 29, California would only be 16th in the country in cigarette taxes). The measure was supported by celebrity cyclist Lance Armstrong. It was polling extremely well as recently as a few months before the election: > [@](#): > > In March—before the active campaign for and against the measure began—67 percent supported it, 30 percent opposed it, and 3 percent were undecided. > > [Public Policy Institute of California](http://www.ppic.org/main/pressrelease.asp?i=1236) However, at that point the campaigning against the measure began: > [@](#): > > The $47 million ad campaign - which scarcely mentioned the word “tobacco” - showed that cigarette makers are shifting away from arguing about their product and looking for other ways to attack tax initiatives. > > Taxes have been shown to reduce smoking rates, especially in young people, but in campaign ads, tobacco companies ignored the issue of smoking and of taxes entirely and instead focused on trouble the state could run into trying to distribute the revenue. > > The situation was reminiscent a 2006 California cigarette tax measure that led by wide margins until tobacco companies spent $66 million to defeat it with ads, including one featuring a Central Valley physician. That same physician was the centerpiece of this year’s anti-tax campaign. > > Armstrong and a coalition of anti-smoking groups say they raised about $12 million to bolster the measure. New York City Mayor Michael Bloomberg made headlines when he kicked in $500,000 to help offset the industry donations. > > But the effort was dwarfed by $47 million raised by opponents, a large haul for even the most heated state races. By comparison, Jerry Brown spent about $36 million in his successful 2010 bid to become governor of California and Wisconsin Gov. Scott Walker and his allies spent $47 million to beat back a recall challenge this week. > > [The San Luis Obispo Tribune](http://www.sanluisobispo.com/2012/06/06/2095039/tobacco-tax-vote-could-echo-outside.html) By the time voting came around, it was a dead heat. And it wasn’t because suddenly Californians decided that cancer was cool: > [@](#): > > The crumbling support coincided with a barrage of opposition ads, paid for as part of a $47-million opposition campaign bankrolled by Philip Morris USA and R.J. Reynolds Tobacco Co. > > The ad that caused the biggest uproar featured a Northern California doctor, draped in a white lab coat, earnestly warning viewers that the tax money would be gummed up by a new bureaucracy “run by political appointees,” with not a penny going to treat cancer patients. > > The American Cancer Society and cycling champ (and cancer survivor) Lance Armstrong, among the measure’s biggest supporters, cried foul. > > “They were desperately trying to make Prop. 29 about something other than cancer and tobacco,” said Chris Lehman, campaign manager for Yes on 29. “With a lot of voters, they had success in doing that.” > > Similar sentiments on a stream of glossy mail ads sent by the No side also clearly resonated. The ads quoted anti-tax advocates and newspaper editorials criticizing the measure, with the names of the tobacco companies buried in the fine print. > “Bureaucracy has become code for everything bad about government,” said San Jose State political scientist Larry Gerston. The tobacco company’s ads certainly had an effect, he said, but that was largely because “the audience was predisposed.” > > [Los Angeles Times](http://articles.latimes.com/2012/jun/06/local/la-me-prop29-20120607) The end result: [It lost by half a percentage point.](http://graphics.latimes.com/prop-29-results-map/) The ability to outspend your opponent means that you get to drive the narrative. This also means that you can lie. As anyone even vaguely familiar with the Straight Dope knows, fighting ignorance is hard. It’s really hard when you are able to shout out lies and half-truths that, even when corrected (and easily correctable) still permeate in the consciousness of the predisposed. It’s why so many people still think that Obama is a Muslim, was not born here; it’s why Americans seem to think that most of the provisions in the Affordable Healthcare Act are good - but call it Obamacare and the same people say it’s bad. It’s why a scientific illiterate population thinks that Intelligent Design and Creationism are fair game and that evolution is “just a theory.” It’s why climate change is still a partisan issue among politicians who waste time wondering if it exists rather than scientists who spend time trying to deal with it. You can say that stupid people get the government that they deserve. Maybe so. But I see it more that gullible people can get taken in by snake oil salesmen. We created laws that regulated the sale of snake oil, ensured that the claims made by the salesmen of snake oil are based in truth. None of this was controversial. We just have new salesmen selling a new kind of snake oil. And they should be regulated just like the last bunch. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 14, 2012, 1:44pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/102 "2012-06-14T13:44:19Z")
One tiny, teeny point: “Snake oil” isn’t speech. I looked, but I didn’t find any protection for “snake oil” in the constitution. I can’t remember, but are you one of the folks who want to amend the constitution to modify the 1st amendment, or do you think it’s just OK to disregard it? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [June 14, 2012, 2:01pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/103 "2012-06-14T14:01:03Z")
If snake oil isn’t speech, then we don’t have a problem. Since when does the constitution protect fraud? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2012, 2:10pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/104 "2012-06-14T14:10:16Z")
> [@John\_Stamos\_Left\_Ear](#): > > It took the SCOTUS to get that recusal:Although they did not say there was bias, they did see “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” > > So to the Supreme Court, “risk of actual bias” was enough to force Benjamin to recuse himself. > > I also think that this case can be used as evidence of “the appearance of corruption” when/if the court does decide to revisit the decision thanks to the Montana ruling. I imagine that whomever is making arguments should reference it. It seems directly related. Is that what you think? Did you read the part of the decision where the Court says: > [@](#): > > Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. To me, that reads much more like a statement that this facts are so extreme that they warrant action, but this is not an invitation to flood us with denied recusal motions from less extreme fact sets. But to you, it says “directly related” to Citizens’ United, eh? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [June 14, 2012, 2:22pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/105 "2012-06-14T14:22:31Z")
This was a [Pit thread](http://boards.straightdope.com/sdmb/showthread.php?p=15166915#post15166915), but I guess I can fit most of it if I strip out the curses. Constitutions are not perfect and eternal. They can be changed. We can do any of three things: 1. reinterpret the First Amendment to restrict campaign spending and reinstate the Fairness Doctrine, as a way of restricting influence peddling–just like previous generations of Americans; 2. amend the Constitution to remove perfect freedom of the press (and it is freedom of the press that is at issue here, not the Newspeak construction of “speech”); 3. set fire to the whole Constitution, baby with the bathwater, and start over; otherwise we’re straight into legal fraud and bribery. Any absolutist interpretation of the First Amendment is nothing less than the legalization of fraud and bribery. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 14, 2012, 2:27pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/106 "2012-06-14T14:27:07Z")
> [@foolsguinea](#): > > If snake oil isn’t speech, then we don’t have a problem. Exactly. > [@](#): > > Since when does the constitution protect fraud? It doesn’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2012, 2:27pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/107 "2012-06-14T14:27:23Z")
> [@foolsguinea](#): > > If snake oil isn’t speech, then we don’t have a problem. > > Since when does the constitution protect fraud? Well, the Ninth Circuit says we can’t penalize people who claim to have won the Congressional Medal of Honor (the “Stolen Valor” laws) because the First Amendment entitles them to lie. Does that help? ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 14, 2012, 4:12pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/108 "2012-06-14T16:12:54Z")
> [@John\_Mace](#): > > One tiny, teeny point: “Snake oil” isn’t speech. I was kinda using “snake oil” as a metaphor here… ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 14, 2012, 4:15pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/109 "2012-06-14T16:15:05Z")
> [@Bricker](#): > > To me, that reads much more like a statement that this facts are so extreme that they warrant action, but this is not an invitation to flood us with denied recusal motions from less extreme fact sets. > > But to you, it says “directly related” to Citizens’ United, eh? If Citizens United allows more “extreme” situations to arise, then yes, it is related. I think that the Justice Ruth Bader Ginsburg’s statement that is mentioned in the OP shows that at least some on the high court agree. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2012, 4:28pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/110 "2012-06-14T16:28:26Z")
> [@John\_Stamos\_Left\_Ear](#): > > If Citizens United allows more “extreme” situations to arise, then yes, it is related. I think that the Justice Ruth Bader Ginsburg’s statement that is mentioned in the OP shows that at least some on the high court agree. Well, inasmuch as Justice Ginsburg was a dissenter on the original decision, I suspect you’re right in thinking she still thinks it was decided wrongly. I don’t see any clues that she thinks Caperton v. AT Massey Coal Co., Inc., is a useful precedent to overturning Citizen’s United v. FCC. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 14, 2012, 5:34pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/111 "2012-06-14T17:34:48Z")
> [@Stratocaster](#): > > Not a snowball’s chance. I don’t concede their arguments ever held water, but even if they did, we would seriously expect SCOTUS to overturn a recent decision because Montana can point to corruption there over a century ago as making them unique? > > Not a chance, IMO. CU was decided properly. The First Amendment’s “text offers no foothold for excluding any category of speaker.” Here it is:There is no “except for corporations” clause there. Personal liberties, particularly those explicitly enumerated in the Constitution, don’t evaporate because people–even if it’s lots of people–don’t like them. There is no constitutional basis for overturning this. Ginsburg, as she often does, misses the point entirely. If this is ever overturned, it will be yet another example of at least 5 of the Justices detecting a right, lurking in the shadow of a penumbra, or in the Force, or with their Spider-sense. Because there is nothing in the Constitution that provides room for that decision. Hasn’t stopped them on many occasions before, but not a chance on this one. Not now. Er, money ain’t speech. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 14, 2012, 5:50pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/112 "2012-06-14T17:50:44Z")
> [@John\_Stamos\_Left\_Ear](#): > > I was kinda using “snake oil” as a metaphor here… :smack: You could tell a dude before he puts his snakes in the press! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2012, 6:05pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/113 "2012-06-14T18:05:17Z")
> [@Evil\_Captor](#): > > Er, money ain’t speech. Is burning a flag speech? ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 14, 2012, 6:26pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/114 "2012-06-14T18:26:49Z")
> [@Bricker](#): > > Well, inasmuch as Justice Ginsburg was a dissenter on the original decision, I suspect you’re right in thinking she still thinks it was decided wrongly. > > I don’t see any clues that she thinks Caperton v. AT Massey Coal Co., Inc., is a useful precedent to overturning Citizen’s United v. FCC. I am sure that she does think it was wrongly decided, however her comment was not about the original decision being wrong. It actually referenced the majority opinion. To recap: > [@](#): > > Justice Ruth Bader Ginsburg wrote, “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” > > She was quoting Justice Anthony Kennedy’s majority opinion in Citizens United, in which he claimed that expenditures might result in “influence over or access to elected officials” but would not “corrupt” them. > > [New York Times](http://www.nytimes.com/2012/02/22/opinion/the-supreme-court-and-citizens-united-take-2.html) Please notice she says “since” the court’s decision… Examples of “corruption or the appearance of corruption” could change things. And in light of Montana and West Virginia, some people feel that is quite possible. Why, no less than Karl Rove seems to have issues: > [@](#): > > On Sean Hannity’s radio show today, Fox contributor Karl Rove said that the Obama campaign will attempt to win the election by “trying to take their wallet and buying it.” > > [Media Matters](http://mediamatters.org/blog/201206120014) You bristled when people used the term “buy elections” before so I can see you would have to take the projecting Rove to task here. Incidentally, [here is a handy graphic](http://prospect.org/sites/default/files/styles/medium/public/montana3.jpg) that shows the huge percentage of Americans who feel the opposite of Bricker when it comes to how money affects the “appearance of corruption” this election cycle. I realize that we do not vote on rights (unless you are gay and want to get married, but that’s another story) however it does show that Bricker’s views are in the minority when it comes to the corrupting influence of money. And we know that with a compelling interest, the government can regulate speech. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 14, 2012, 7:47pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/115 "2012-06-14T19:47:11Z")
> [@John\_Stamos\_Left\_Ear](#): > > I am sure that she does think it was wrongly decided, however her comment was not about the original decision being wrong. It actually referenced the majority opinion. To recap: > > Please notice she says “since” the court’s decision… Examples of “corruption or the appearance of corruption” could change things. And in light of Montana and West Virginia, some people feel that is quite possible. > > Why, no less than Karl Rove seems to have issues: > > You bristled when people used the term “buy elections” before so I can see you would have to take the projecting Rove to task here. > > Incidentally, [here is a handy graphic](http://prospect.org/sites/default/files/styles/medium/public/montana3.jpg) that shows the huge percentage of Americans who feel the opposite of Bricker when it comes to how money affects the “appearance of corruption” this election cycle. > > I realize that we do not vote on rights (unless you are gay and want to get married, but that’s another story) however it does show that Bricker’s views are in the minority when it comes to the corrupting influence of money. And we know that with a compelling interest, the government can regulate speech. Go ahead, then. Take your huge majority and regulate away. I’ll just sit here and watch. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 14, 2012, 8:27pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/116 "2012-06-14T20:27:32Z")
> [@Bricker](#): > > Go ahead, then. Take your huge majority and regulate away. I’ll just sit here and watch. Bricker, both the Dems and the Repubs are in Wall Street’s pockets. The opinion of voters does not matter here. It’s the very definition of plutocracy. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 14, 2012, 8:29pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/117 "2012-06-14T20:29:28Z")
> [@Bricker](#): > > Is burning a flag speech? Yes. Typically is means “I hate/disapprove of America” and is one of the dumbest forms of political speech there is. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 15, 2012, 12:30am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/118 "2012-06-15T00:30:20Z")
> [@Bricker](#): > > Go ahead, then. Take your huge majority and regulate away. I’ll just sit here and watch. When you get petulent, I know you’re done. I also know a few other things which are not relevant… Thanks for the debate. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 15, 2012, 12:47am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/119 "2012-06-15T00:47:11Z")
> [@Bricker](#): > > Is burning a flag speech? _Burning_ money is speech. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 15, 2012, 2:27am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/120 "2012-06-15T02:27:04Z")
> [@Evil\_Captor](#): > > Yes. Typically is means “I hate/disapprove of America” and is one of the dumbest forms of political speech there is. Why is burning a flag speech, but using money to buy a TV ad not speech? [Previous page](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699.md?page=5) [Next page](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699.md?page=7)