United Liberty

If Elena Kagan is confirmed to the Supreme Court, she may not help ObamaCare when and if comes before the the court. Michael Cannon explains:

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

I don’t trust Antonin Scalia or Anthony Kennedy, but the court does seem to have it out for President Obama since his absurd comments about the Citizens United case, an opinion authored by Kennedy, during his State of the Union address.

After the controversial Citizens United ruling, supporters of campaign finance reform argued that something - anything - had to be done to protect the American electoral system from the evils of corporate influence. The attempt is the DISCLOSE Act that is worming its way through the system. To bad it won’t actually hurt the corporations that proponents think they’re targeting.

You see, since Citizens United, it has become clear that the government can’t legally ban political speech. They may want to, but they can’t. Since they’re limited, all that can really do is make it more difficult to get a message out. This effort has ultimately resulted in the “stand by your ad” provision that requires disclosure of who the ad is by, who paid for it, etc.

Many opponents argue that this will require almost half of a 30 second spot, effectively limiting the time available for a message. That’s the theory anyways. In practice though, it may simply up the cost to get that message out there. Now, instead of a 30 second spot, a full minute will be needed.

A minute is a lot of time as far as advertising goes. It’s not something that comes cheap by any means, especially at the network level where advertising on national campaigns is typically done. It’s the kind of cost that smaller groups simply can’t afford, but the corporations that President Obama and his administration fear monkeying with electoral politics have plenty of money for such things.

Even if they hadn’t gotten their precious carve out, the NRA could have handled a full minute of network prime time. GeorgiaCarry.org? Not so much.

Here’s a hypothetical example:

During the oral arguments in Citizens United case (actually, a rearguing), Elena Kagan told the Court that a book could be banned if the authors purpose was “express advocacy” of a particular issue or candidate, but that there “has been no administrative practice of ever applying” campaign finance laws to that extent.

You can listen to Kagan’s exchange with Ginsburg, Scalia and Alito below. You can read it here (pages 64-68):

Over at Reason, Daniel Shuchman points out that the government’s argument had changed since the first oral argument:

In the first argument before the Court, on March 24, 2009, Kagan’s deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” - First Amendment, Bill of Rights

The National Rifle Association’s betrayal is one step closer to becoming law as the DISCLOSE Act, which is aimed at curbing the Supreme Court’s decision in the Citizens United case, passed the House yesterday by a vote of 219 to 206:

Democrats, hoping to rein in special-interest spending before November’s midterm elections, pushed the measure, which would impose broad new disclosure rules on political spending.

The bill, approved by a 219-206 vote, was opposed by Republicans who cast it as violating free-speech protections and filled with exemptions for powerful groups, such as the National Rifle Association and labor unions. The measure was crafted by Democrats “to help their friends, while silencing their political opponents,” House Minority Leader John Boehner, R-Ohio, said during floor debate today.

But the bill’s chief architect, Rep. Chris Van Hollen, D-Md.,said the legislation would ensure “the voice of citizens is not drowned out by secret spending.”

Yes, the NRA sold out the First Amendment by making a deal with Democrats over the DISCLOSE Act:

H/T: Club for Growth

In an editoral at the Washington Post, Cleta Mitchell, a member of the NRA’s Board of Directors, slammed the organization for not opposing the DISCLOSE Act:

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA “carve-out” reaffirms the wisdom of the First Amendment’s precise language: “Congress shall make no law … abridging the freedom of speech.”

Congress can’t help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents’ mouths. The Disclose Act is a doozy of a muzzle.
[…]
The NRA’s wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA “carve-out” but no less cynical is the bill’s sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members’ dues aggregate less than $600 in a calendar year and thus members’ contributions to labor’s campaign-related spending wouldn’t need to be disclosed … even to the union members whose dues are spent for political purposes.

The National Rifle Association has sold out on the DISCLOSE Act, which is aimed at curbing the impact of the Citizens United decision:

Bowing to pressure from the National Rifle Association, House Democrats agreed Monday to exempt the powerful gun owners’ lobby from key portions of legislation imposing new disclosure requirements on campaign advertising and other political activity.

The legislation is designed to roll back a recent Supreme Court ruling and generally requires organizations to disclose their top donors if they sponsor political television commercials or pay for mass mailings in the months leading to an election.

Democratic attempts to bring the measure to the floor faltered last month when the NRA objected, and hurried negotiations on a compromise resulted.

Under a change negotiated over the weekend, the NRA would be exempt based on its length in existence, size of membership and other factors — a concession demanded by the powerful lobby and sought by Democratic allies in the House led by Rep. Heath Shuler, D-N.C. Other organizations meeting the same set of criteria would also be exempt, but officials said late Monday they were not immediately able to name any.

Democratic aides said the leadership hoped the revised legislation could be brought to a vote before the end of the week.

The Hill notes that Republicans are looking to the Supreme Court to stop ObamaCare if all other avenues fail:

Republicans admit it will be difficult for Congress to repeal the legislation in the next few years, but they see a potential ally in the Supreme Court.

“It’s very probable that a number of provisions in this monstrosity violate constitutional principles,” said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee. “I think there will be a lot of ongoing litigation for years to come.”

Sessions said the provision in the law that requires individuals to buy insurance or face a penalty raises “very serious constitutional questions.”

This is probably a misplaced hope. Let’s face it, the Supreme Court is not exactly a beacon of liberty, even in recent years with less of a progressive presence. Yes, there have been some rulings that restored basic constitutional principles, such as District of Columbia v. Heller, Citizens United v. FEC and Boumediene v. Bush. However, there is a much longer history, specifically in the last 80 years, where the Court has undermined core constitutional principles.

President Obama is poised to take on a whole host of issues in the coming months, including reforming federal regulation of the financial sector, campaign-finance law and increasing federal involvement in education, Politico reports.

We’ll save policy analysis for another day. For now let’s focus on the way Politico reported the news.The story reads:

Obama now will push Congress to close campaign-finance loopholes opened by the Citizens United case, adopt his overhaul of the No Child Left Behind education bill, and perhaps even tackle a clean-energy bill.

Wait, what? “Loopholes”? Since when do we consider the First Amendment, you know, that “Congress shall make no law” stuff, a “loophole” that can (or should) be closed if it gets in the way of Congress?

That’s some loophole.

And in case anyone forgets what the Citizens United case was really about, here’s your primer:

At a Q&A someone asked Chief Justice Roberts how he felt about the President making comments about a recent decision that the court made during the State of the Union.  Roberts had an excellent answer: