Monday, February 01, 2010

It was supposed to be a holiday - but SCOTUS Scotched that!!

Well, this was supposed to have been a weekend of work without the interruption of news, politics or any of the other contentious publication that normally crosses the probligo's doorstep. We went to Opo with the intention of removing a large heap of garden rubbish (yes, you are permitted to start thinking in terms of shovels, rakes, implements of destruction, and the ease of rather than bringing that lot up throwing ours down) that had built up against the back wall of the garage. We hired a fairly large trailer with a cage on top. That of itself turned out to be a wise decision indeed.

What rather curdled the weekend was an NZ Herald article, a kinda op-ed piece masquerading as news, drawing attention to a recent decision of SCOTUS - decided 21 January - in Citizens United v Federal Election Commission. I have not dug that article out on the web for the simple reason that I wanted to look into this for myself; primarily to determine its validity, did SCOTUS decide as had been said, and secondarily to see if there might be potential applicability to law changes in NZ.

Now, bear in mind that I am not a lawyer, let alone a specialist in US Constitutional law. The transcript I am relying upon is here, from Cornell University. It is (I understand) a precis of the Court's rulings, who agreed and who disagreed with which parts.

The fundamentals of the case appear to be:

1. The rights of Corporations to have free speech.

2. The rights of Corporations to participate in the election process.

As might be expected, both principles are closely intertwined. Both have also been publicly (not through the Court system) argued here in relation to the participation of groups such as the Closed Brethren, Ratana Church, Destiny Church, and the Workers Union movement in the process of supporting and opposing as part of the election campaigning period. Equally as hotly debated has been the application of spending limits to such organisations, the practicality and means of defining those limits. That debate was in large part the progenitor of the ill-advised and ill-fated Auntie Helen Act passed in haste prior to the last election. My post back here might help develop that side of the discussion.
I have written several times on the actions and attitudes developed by politicians in their frantic quest for and to retain power.

It is a universal, so trying to select individual instances to prove the point are meaningless; Blair in the UK, Bush and the Republicans in the US, Howard in Australia, Ortega in Nicaragua, and Clark and Brash in NZ.

I fringed around the debates that came out of the last US Presidential elections and the “Swift boat files” in particular, but wrote fairly extensively on the parallel here with the Exclusive Bretheren (despite their religious prohibition on voting) spending a fairly considerable sum in supporting the National Party campaign.

The “Rules” relating to the funding of electoral campaigns in this country are quite extensive, are “agreed” between the political parties rather than being directly imposed, and have always led to vigourous debate post-election.

But there has never been anything quite like this last election.

I accept that SCOTUS has the power to rule in this way; that the judgement is right; that there is no real impediment to the overturn of some 30 years of precedent. I know that such "law-making" by SCOTUS is anathema to many Americans, not least TF, not least the right wing of American politics.

But to the crux -
1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin . Pp. 5–20.

Ss441b is Federal Law preventing corporations and workers unions from using general funds "for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate." - essentially reflecting the Swift Boat (conducted by individuals not corporations) campaign against Kerry.
2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.

Reading through the argument following the heading it is apparent that Ss441b is dead.
(3) The Government’s asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

Vive le difference!!
(4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.

I can only hope that I have pulled the major lines of the decision correctly. I hope that someone will put me back on track should I have strayed somewheres.

The principle as I understand it from NZ law is that at present at least a party's campaign is controlled and approved by the party only. That is an understanding of observation rather than law. The ill-fated mash produced by Auntie Helen has seen an end to any attempt at direct control at least for the time being. One thing that must be said here is that the Nats have been far more subtle and clever in their control of Labour's support base. By sidelining unions and by making the Federation of Labour effectively redundant (Old Tom must be weeping for eternity at the death of his dream) National has in large part drawn all of the teeth in Labour's primary support. For Labour to do the same, to the same extent, it might have to ban all corporations other than those owned and directed by the State, and to replace all personal political donations with Parliament set "budgets" from the public purse... arrrrmmmmmmm, isn't that what nearly happened?

The curdling thought is that the US electorate is going to be faced with the same problem as NZ. The difference is that here in NZ I would like to image we have a somewhat educated electorate. Evidence for that claim? Well, it did elect the Jonkey with a fairly stiff message to Auntie Helen's (now the Goffies) mob.

Recent times have shown the former coming out in their true colours rather than the breeding plumage of the election season. We are now facing the prospect of a "land tax" at 0.5% of current value (that will cost the probligo about $250 more a year; an increase in GST from 12.5% to 15%, the impact of which will increase our weekly budget by about $9 per week; and a tax cut which from the Jonkey's pre-election promotions might get me a decrease in income tax of about $6 per week.

Heigh ho!

We ended the weekend towing a well laden trailer back through the rain to Auckland. On board that we had four very large "garden bags" for immediate collection in about three weeks time - to be taken for composting - plus about equal amount for bagging and collection about four weeks later.

The ol' probligo is not one of those who finds a quiet corner and tips the stuff onto the scrub at the side of the road. Quite apart from it being wrong, this lot has quite a bit of morning glory in it. I would not want to be responsible for that getting loose in the Waima forest.

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