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Thursday, March 11, 2010

The real issue with the supreme court: Overturning Austin

There's a lot in the Citizen's United ruling that is just bad. Bad logic (and outright logic errors); mis-application of prior rulings; making rulings on subjects without taking arguments pro and con, and those rulings being outright wrong/full of errors; etc. Steven's dissension makes a point of this.

More discussion on this is at XKCD, as before.

But there is one key issue that was recognized -- BADLY, and improperly -- in Austin. A "9th amendment" implied right.

The right to a relatively corrupution free vote and vote count.

That may sound silly. But lets face it: If it were not for that, no one would care about Chicago last century, or Ohio and Florida this century.

One right says: Unrestricted speech, unrestricted press.
One right says: Elections free of corruption or the appearance of corruption.

They conflict in this case.

Lacking any guidance from congress, the courts have to make the rules.

All legislative power resides in congress. Congress could, if they did their job, pass laws saying where the division was. The courts would then have the authority to uphold that, or not.

Instead, congress does not do its job. The courts take over, without constitutional authority, to create what amounts to laws.

But while congress would have discourse on both sides, discussion, examination, etc, the courts only give the appearance of that, and in this case, not even that.

From the discussion of Buckley on page 23, to the treatment of Austin and the government's bad defense of Austin, the court makes logic errors. Many of them.

But the upshot is: Austin made an attempt to recognize that corporations can distort the presentation of views and opinions to the point of giving at least the appearance of, if not actual, corruption. The court basically said that the government did a bad job of relying on that, so it will be overturned. (See pages 32-36 of the ruling).

Even worse: On the bottom of page 38, the court recognizes that for profit, and non-profit, corporations are not the same, yet are treated the same by Austin. Yet rather than narrow the ruling of Austin, it was fully overturned.

Once you overturn Austin, on page 50, and take the logic errors seen earlier, there is no reason not to reach the conclusion of the court. But it's the wrong conclusion, reached without properly considering both sides, and full of reasoning errors.

But this is the nugget that needs to be addressed in an amendment to overturn this decision. So, this is what the second round of proposed amendment starts with.

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