The bedrock principle of the First Amendment is to protect political speech from government censorship. That is what the Founders intended as a way for the citizens to disagree with their government without fear of reprisal.

Over the years we have seen some bizarre applications of the free speech doctrine to include such things as flag burning, and evolving into freedom of expression, whatever that really means. What the progressives want is that they and their main stream media chorus are alone in conveying their message. The McCain-Feingold campaign finance law banned using corporate or union money for “electioneering communications,” which meant broadcast advertising that identified a federal candidate within 30 days of a primary, or 60 days of a general election. In other words, it is the “Incumbent Protection Act.” As incumbents have the name recognition and the communication platform of their office, they begin a campaign with a considerable advantage. The particular timeframes in the act are when most people start paying attention, so if you can choke that off, the victory circle is that much closer.

In Citizens United v Federal Election Commission, at issue was a documentary film that was critical of Hillary Rodham Clinton, who was running for president at the time. The Supreme Court’s ruling in favor of Citizens United brought the scorn of President Obama upon the Court in his State of the Union address last year.

Supreme Court Justice John Paul Stevens blasted the Court’s 5-4 decision saying that the ruling was not grounded in the writings of the Founding Fathers.  His argument being that certain groups could have their speech curtailed and only individuals had their speech protected.  Justice Antonin Scalia wrote a separate concurring opinion to address Stevens’ argument.  In part:

“I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”… This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals–and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.” – Antonin Scalia, concurring opinion in “Citizens United v. Federal Election Commission

This is an historic moment to be celebrated as another victory in the war to roll back government before it rolls over us.

http://www.youtube.com/watch?v=Zn739hxpGNI

That’s my opinion; I’d like to know yours.  Please comment below.

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.”  – Presidential Oath of Office,  Constitution of the United States of America, Article II, Section I

“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 to peaceably assemble, and to petition the Government for a redress of grievances.” — Constitution of the United States of America, First Amendment.

“This ruling strikes at our democracy itself,” Mr. Obama said, adding: “I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.” — NY Times, January 25, 2010

Last week in Citizens United v. Federal Election Commission the Supreme Court struck down a provision in the McCain-Feingold campaign finance reform bill that prohibited “electioneering communication”, that is, broadcast ads that name a federal candidate within 30 days of a primary election or within 60 days of a general election.  It is what I and many others dub the “Incumbent Protection Act”, because it tips the scales heavily in favor of incumbents who have the name recognition, and the communication power of their office as an advantage in an election.  In addition, the 30 days or 60 days are when many voters really start paying attention.  Our elected representatives love to talk tough about reform, but that reform typically ends up making it harder to replace them.

Obama Weighs In

As the above quotes demonstrate, President Obama’s job is to uphold the Constitution.  The Constitution protects free speech.  So why is President Obama attacking a Supreme Court ruling that protects Free Speech?  Is that what he is supposed to be doing?  Instead he says it “strikes at democracy itself.”  He doesn’t mention that it also lifts restrictions on the speech of unions that typically favor the positions of his party.  Perhaps that is because with the Obama administration unions have extraordinary access to the White House. From January to July, White House logs show that Andy Stern, President of the Service Employees International Union (SEIU) visited the White House 22 times, more than anyone else in the visitor logs.

If President Obama is truly concerned about the influence of lobbyists, it does no good to drive them out of advertising on TV into personal visits to the White House.  Of course, the president would be selective in who has an audience with him.  If you really want to reduce the number of lobbyists, then reduce the reasons for them to lobby.  If, for example, you want to reduce the lobbying effort of the giant agricultural corporation Archer Daniels Midland, then get the government out of the business of ethanol subsidies, farm subsidies, and shut down the federal Department of Agriculture.   Lobbyists will call on Washington less, if they have less to call about.  Shrinking the federal government will reduce the number of lobbyists and their influence, reduce the deficit, help balance the budget, and make the government more manageable so that we can reduce or eliminate waste and fraud.

Supreme Court Justice John Paul Stevens blasted the Supreme Court’s 5-4 decision saying that the ruling is not grounded in the writings of the Founding Fathers.  His argument being that certain groups could have their speech curtailed and only individuals had their speech protected.  Justice Antonin Scalia wrote a separate concurring opinion to address Stevens argument.  In part:

“I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”… This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals–and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.” – Antonin Scalia, concurring opinion in “Citizens United v. Federal Election Commission

Newly seated Justice Sonia Sotomayor voted against free speech.  I always marvel when people who succeed against tough odds attack the very principles of this country that allowed them to succeed.  The Bill of Rights was designed to protect against the tyranny of the majority by defining certain rights of every individual that could not be infringed upon.  It is one reason why people around the world fight to come here for a chance to succeed.  Because they know that these principles will allow them to do so if they have the drive to succeed.

The Constitution in the Hands of Activist Judges

President Barack Obama has made his first nomination to the Supreme Court, Sonia Sotomayor.  She has a great American personal story, not quite as great as Clarence Thomas, but a great one nonetheless.  Here is what Barack Obama said about Clarence Thomas and Justice Scalia.

“I would not have nominated Clarence Thomas,” said the presumptive Democratic nominee. “I don’t think that he…” the crowd interrupted with applause. “I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution. I would not have nominated Justice Scalia though I don’t think there is any doubt about his intellectual brilliance. Because he and I just disagree. — Barack Obama with Rick Warren

Much of the ballyhoo over Judge Sotomayor has been about her background.  No one, I repeat, no one has a more compelling story than Clarence Thomas, but when he was up for nomination, the ad hominem attacks were disgraceful.  Barack Obama doesn’t think Clarence Thomas is a strong enough jurist?  You may disagree with Clarence Thomas’ beliefs but remember the context of the question from Rick Warren.  Warren asked who on the Supreme Court Obama would not have nominated and out of the nine justices, he picked Thomas.  So Obama thinks Souter has a greater legal mind than Thomas? Or was Obama trying to score a twofer?  He can bash a conservative to score points on the left, while showing he is not a knee jerk Affirmative Action type by singling out the black guy, so he can score points with independents.  Let’s be clear, Obama rarely makes a public statement that is not calculated for effect.

President Obama is now trying to get his first nominee confirmed and to do so is pointing to the tradition that President’s should generally get who they want, unless there is a serious problem with the nominee.  However, while in the Senate, he had a different view as shown during the confirmation of Samual Alito.  Obama voted to filibuster that nomination.

“As we all know, there’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.” — Barack Obama speech on why he was voting against Samual Alito.

With the nomination of John Roberts, Senator Obama clearly stakes out a position favoring judicial activism.  He said that in 95% of the cases following the Constitution is fine.  The other 5% of the time judges should feel free to re-write the constitution.

“The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”  — Barack Obama’s speech on why he was voting against John Roberts

Okay, so show me where Ruth Bader Ginsburg has voted with Antonin Scalia 95% of the time.  If you take what Obama says at face value, if they followed the Constitution 95% of the time, Ginsburg and Scalia would vote the same way.  Since Scalia plainly says his philosophy follows “original intent”, that is, adhering to the Constitution as written, Obama must be admitting that Ruth Bader Ginsburg is a judicial activist since she rarely agrees with Scalia.

“A lot has been made about the Supreme Court and my criteria,” Obama said in a 20-minute speech to 250 of the night’s biggest donors. “I want people who have a common touch, who have a sense of what it’s like to struggle.”

He praised Sotomayor because she knows that “every once in a while, people need a hand up.” — Barack Obama speaking on why Sonia Sotomayor should be nominated to the Supreme Court

In this statement about Sotomayor, he confirms what he really believes that personal prejudices, and by that I mean “pre-judging”, are an essential element for a judge.  He believes the Constitution plays a role, but where the outcome is not pleasant, by all means re-write the Constitution to give you the outcome you want.  But once again Obama flip-flops:

“There are, of course, some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record. But I am confident that these efforts will fail; because Judge Sotomayor’s seventeen-year record on the bench – hundreds of judicial decisions that every American can read for him or herself – speak far louder than any attack; her record makes clear that she is fair, unbiased, and dedicated to the rule of law.” — Barack Obama’s weekly radio address.

First, I want to point to the Obama straw man, “some in Washington,” without naming who those some are.  So, here he says she is “fair, unbiased, and dedicated to the rule of law.”  Well, which one is it?  Biased, to swing those 5% of the cases that need a better outcome, or dedicated to the rule of law.

Teaching Moment

Judge Sotomayor’s nomination will probably be confirmed.  What conservatives must do is refrain from the name calling, any ad hominem attacks, and focus on whether or not she is a judicial activist or not.  The questioning should be respectful but unwavering.  Most Americans are opposed to activist judges.  The American people should be clearly informed that Justice Sotomayor is just that.  But if the long knives come out to damage her, that message will be lost, as will a valuable issue to use in the next election.  When adhering to conservative principles 60% of the American people are with us.  When we put up wishy washy candidates to appeal to groups, the Democratic playbook, we get slaughtered every time.