Wednesday, December 19, 2012

PF February 2013 Proposed Topics

The TOPIC AREA for the month of February is, "China / U.S. Relations." The two resolutions from which advisors may choose are as follows:

Resolved: On balance, the rise of China is beneficial to the interests of the United States.

Resolved: On balance, China's increasing influence in Eastern and South-East Asia is a threat to the interests of the United States.

At first examination, two equally appealing proposed resolutions.  I'll have more to say about these soon.

Ok, as it turns out I had nothing more to say since I enjoyed a well-deserved time of relaxation over the Christmas and New Year holidays.  By now you should know, the first resolution was selected.  Click here for analysis.

Monday, December 17, 2012

PF Jan 2013 Citizens United - Con Position

For part one of this analysis, click here.

The Con Position

Before establishing a suitable Con position I want to lay down some background information in order to establish a context for the ruling which came out of the Citizens United case.  What we see is an ever increasingly complex series of regulations which made it more and more difficult for groups to express their political opinion.  As the court viewed the maze of rulings, groups were at a disadvantage to determine whether or not their speech would be challenged by the FEC and this was having a repressive effect on free speech.  Following the presentation of the background information, this analysis will establish three main contentions for the Con.

An Important Definition

The following definition was provided in the Citizens United case:

An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President . . . publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. U. S. C. §441b(b)(2). The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.


Prior to examining the Con position, it is necessary to understand some of the background which ultimately lead to the Citizen United ruling.  A series of state laws restricting certain aspects of political speech were being challenged and lost in higher courts.  These rulings had the effect of strengthening FEC oversight of political speech which was eventually seen as harming the right to free speech as protected by the first amendment.

The Austin v Michigan State Chamber of Commerce case in 1990 upheld the ban on Corporations spending their general treasury funds for political speech.  Corporations were required to pay for their political speech through segregated funds set up for political purposes (the creation of a political action committee).

FEC Record:
"On March 27, 1990, the Supreme Court ruled that a Michigan state law prohibiting independent expenditures by corporations was constitutional. Reversing a Sixth Circuit U.S. Court of Appeals decision in Austin v. Michigan State Chamber of Commerce, the Court said that the state could prohibit corporations from using their treasury funds to make independent expenditures in connection with state elections."

The Chamber of Commerce tried to argue the Michigan Law restricting their use of treasury funds violated first amendment free speech rights and fourteenth amendment "equal protection rights" since media corporations were not subject to the same restrictions (newspapers and news corporations could basically say what they want, whenever they wanted).  The court did not agree with the Chamber of Commerce.

FEC Record:
First Amendment Issue
The Court held that the Michigan law, which permitted corporations to set up segregated political funds, was narrowly tailored to serve the compelling state interest of preventing the distortions in the political process that might result from allowing corporations to spend their general treasury funds to express their political views. "This potential for distortion," the Court said, "justifies §54(1)'s general applicability to all corporations"-regardless of their size or earnings-because all corporations "receive from the state the special benefits conferred by the corporate structure." Thus, the burden imposed on free speech by section 54(1) was permissible. [...]

Fourteenth Amendment Issue
Having clarified that a compelling state interest in preventing corruption justified the restrictions on political activity by corporations, the Court rejected the Chamber's arguments with respect to the application of the prohibition to unincorporated entities. Corporate status, the Court said, was a state-granted privilege that facilitated the amassing of wealth, the source of the threat of corruption.
The Court also affirmed that the limited "media exception" in the state law for news stories and editorials disseminated by corporations operating in any of the news media did not constitute a breach of equal protection because of the unique public informational and educational role that such organizations play. "The media exception ensures that the Act does not hinder or prevent the institutional press from reporting on and publishing editorials about newsworthy events."

Another case, McConnell v FEC add more context to the situation leading up to the Citizen United decision.

In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during-- political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions were a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").

In the McConnell case, the US Supreme Court answered "no" to the following questions -

Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?
Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?

[...]Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions.

In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.

The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.

The Austin and McConnell decisions became  the basis of many state laws rejecting attempts by corporate and union entities from engaging in "electioneering communication" and restricted the funding sources for any such political speech with the exception of media corporations, because of their "unique public informational and educational role".  Additionally, because of the wording in the McCain-Feingold act, congress assumed power to regulate "express advocacy" aimed at candidates within 60 days of a general election.  This "express advocacy" was distinct from "issue advocacy" directed to issues as opposed to candidates.  This power then became challenged in the Wisconsin Right to Life v FEC case.

Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the Federal Election Commission (FEC), claiming that the BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as applied" challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In McConnell v. Federal Election Commission, the Court had upheld Congress's power to regulate "express advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads" rather than express advocacy. WRTL also argued that the government lacked a compelling interest sufficient to override the corporation's First Amendment free speech interest. The FEC countered that WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but are intended to affect an election.

The Court ruled the WRTL ads were legitimate "issue ads".  It appears the ruling signalled a shift in the thinking of the court toward guarding against excessive censorship of speech under the guise of limiting "electioneering communication".

Chief Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.

When Being Chill is Not Cool

Prior to Citizens United, a complex and confusing series of laws had been passed regulating political speech.  Because organizations and corporations were not willing to face legal challenges from the FEC over their political communication, the obvious remedy would be to submit their political ads or campaign ideas to the FEC for prior approval. SCOTUS (Supreme Court of the United States) felt the maze of complex laws and the excessive regulatory power of the FEC was having a "chill" effect on free speech.  Some organizations with-held their speech rather than face potential legal action from the FEC.  Indeed, Justice Kennedy, writing in the majority opinion of Citizens United v FEC clarified the court opinion.

"This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713 (1931). As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. See 2 U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.
[...] Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, “the censor’s determination may in practice be final.”

The Right to Speak

While the court recognizes some limitations of free speech, there must be compelling reason to enact bans and any law which attempts to restrict speech content (as "political speech" defines the content of the communication) without meeting those compelling burdens will be subject to strict scrutiny.  One such burden is the "clear and present danger" test defined in Schenk v US and discussed in the previous part of this analysis (The Pro Position).  The court saw the restriction of corporate speech as an outright ban on free speech and did not see adequate relief from the ban provided by the fact corporations could form PACs.

Section 441b is a ban on corporate speech notwithstand ing the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. [...] PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs.

Since the court determined that independent PACs did not provide a legitmate avenue for corporate speech, the court addressed what it viewed as a ban on speech.

As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restrict ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  See McConnell, supra, at 251 (opinion of SCALIA, J.) (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

As a strike against the Austin v FEC cases differentiating media from other forms of corporate speech, the court expressed its opinion.

Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.  The First Amendment protects speech and speaker, and the ideas that flow from each.

Corporations are People Too

In the opinion of the court, it cited many precedences which established that first amendments rights extended to corporations.

Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”

For links to other Public Forum debate topics, click here.


Federal Election Commission Records
(Good summary of court decisions involving the FEC with links to PDFs)

FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TOLIFE, INC. (Nos. 06-969 and 06-970) 466 F. Supp. 2d 195, affirmed.

Oyez, Chicago-Kent College of Law
McConnell v Federal Election Commission

Oyez, Chicago-Kent College of Law

No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––
Decided January 21, 2010

Tuesday, December 11, 2012

PF Jan 2013 Citizens United - Pro Position

For part one of this analysis, click here.

The PRO Position

PRO will be advocating as a result of the Citizens United decision, the unlimited spending of super PACs harms the political process.  The difficulty of this position is PRO will be essentially advocating that unlimited free-speech can be harmful.  Taking such a stand, while perhaps intuitive is not easy because the court has a long history of protecting free speech rights.  It is one of the core values of America.  Nevertheless, students of first amendment rights, which you all should be since you freely exercise that right each tournament, know that despite very strong protections, certain kinds of speech are limited.  The most famous example arises from Schenck v United States in which decision,  Justice Holmes elucidated the "clear and present danger" test:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"

This is where the idea came about it is illegal to shout fire in a crowded theater, though the Justice stated, "falsely" shouting fire which is not quite the same.  It may be remotely possible for PRO to make the case that super PAC speech creates a clear and present danger but I doubt any reasonable judge will buy it.  Some types of political communications are limited to a point.

Cohen 2009:
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of force or of law violation” is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Similarly, the Court held that a statute prohibiting threats against the life of the President could be applied only against speech that constitutes a “true threat,” and not against mere “political hyperbole.”  In cases of content-based restrictions of speech other than advocacy or threats, the Supreme Court generally applies “strict scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.

For more on various kinds of free speech limitations, refer to the Cohen 2009 paper listed below.

A Drop In The Ocean

The Citizens United decision was not unanimous and fortunately for debate it is so.  This means, not all of the justices agreed the decision was a good thing so there is leverage to be found by PRO in the dissenting opinions of the court.  In my opinion, one of the key factors in favor of PRO will center on the question of equality more so than freedom of speech.  In most political discourse the principle of "equal time" is well known.  For example, when the President gives the State of the Union Speech, the opposing party is granted "equal time" to express their point of view.  In the case of super PACs, the financial resources of the PAC can literally swamp opposing points of view and create a disparity in the concept of "equal time" such that individual points of view are a "drop in the ocean" of expressed opinion.  So it becomes not a fight about speech content or even the right to speak.  If for example, a super PAC purchased 100% of television ad space to advocate their point of view, it does not necessarily suppress individuals from speaking out, but it does limit their opportunities to speak.  This was exactly the idea put forth in Justice Steven's dissent:

Sullivan 2012:
"While Justice Stevens disputes the majority’s characterization of this interest as impermissibly advancing the “equalization” of speaking power, his own description suggests that it is necessarily redistributive: he argues that source limitations on corporate political expenditures will limit the deployment of resources “on a scale few natural persons can match,” and avert the “drowning out of noncorporate voices” through “corporate domination of the airwaves prior to an election.
Justice Stevens’s dissent thus embodies one deep strand of free speech jurisprudence that might be called free speech as equality. This vision of free speech has both an antidiscrimination component and an affirmative action component. The former bars government from discriminating against marginal, dissident, or unpopular viewpoints that are likely to suffer political subordination or hostility. The latter enforces a kind of preference or forced subsidy for marginal, dissident, or unpopular viewpoints by barring the attachment of speech-restrictive conditions to the receipt of public benefits. On this view, political equality is prior to speech: when freedom of speech enhances political equality, speech prevails; when speech is regulated to enhance political equality, however, regulation prevails. Government may redistribute speaking power so long as it does so along viewpoint-neutral dimensions such as speakers’ structural or institutional features.  Such concerns about the disproportionate influence of corporate speech can be addressed only by reducing the influence that corporate speakers would have if speech were left to private ordering."

A very powerful argument, in my opinion is found in the contention that because of the enormous spending power of corporations, free speech is not increased, it is actually decreased as dissenting voices become overwhelmed in the noise of corporate opinions.

The Corporate Non-Person

Another significant PRO argument can be found in the argument that corporations are not individuals so should not be granted rights as individuals.

McGovern 2012:
We are already witnessing the corrosive effects of Citizens United: an election system awash in a sea of millions of dollars in unregulated money, drowning out the voices of individual citizens.
Politicians are increasingly beholden to wealthy special interests.
A multinational oil company that doesn’t like a politician — of either party — can now simply write a big, undisclosed check to “Americans for Apple Pie and Puppies” and watch the negative advertisements work their magic.

But the effects of the corporate rights doctrine go far beyond campaign finance. A Vermont law to require that milk products derived from cows treated with bovine growth hormone be labeled to disclose that information was struck down as a violation of the First Amendment.
A federal judge has found that tobacco companies have a free-speech right that prevents the government from requiring graphic warning labels on cigarettes. A pharmaceutical corporation has claimed that their corporate speech rights protect them from FDA rules prohibiting the marketing of a drug for “off-label” uses.

As Justice John Paul Stevens rightly noted in his dissent in Citizens United, the majority ruling was “a radical departure from what has been settled First Amendment Law.”
These corporate “rights” are relatively new, appearing in the last few decades. They overturn centuries of established jurisprudence and national consensus. The Supreme Court used to repeatedly affirm that the elected governments of the states and the nation could regulate corporations.
Chief Justice John Marshall described the corporate entity as “an artificial being … existing only in contemplation of law.” No less an authority than James Madison viewed corporations as “a necessary evil” subject to “proper limitations and guards.” Thomas Jefferson wished to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
There is nothing “originalist” about the corporate rights doctrine, and it is no mere accident that the first three words of the preamble to our Constitution are “We the People.”
The framers, as Justice Anthony Kennedy said, “had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”

SOTOMAYOR join, concurring in part and dissenting in part.
Citizens United v Federal Election Commission
Neither Citizens United’s nor any other corporation’s speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. . . .
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

Compulsory Speech

Corporations are public entities and are beholden to shareholders.  Shareholders may be a closed group of closely-knit individuals such as a few members of a family or they may be public stockholders comprised of ordinary citizens.  Under US corporate law shareholders are granted certain voting privileges, such as the election of the board of directors.  Shareholders have a financial stake in the corporation.  They have put up money usually in the form of common stocks.  However, what if you invested in a company that has sponsored a super PAC advocating the cancelling of school debate programs.  You might want to know that so you could decide whether you want to withdraw your financial support of the corporation.  If the corporation decides without a vote of the shareholders to engage in political speech you do not agree with what protection is there for your investment?

Thaler 2011:
When corporations use general treasury money to finance electioneering communications, they use their shareholders’ money to fund their corporate speech. Corporate laws such as the business judgment rule allow corporations to make these business decisions without shareholder consent. Yet, political expenditures are fundamentally different from general business decisions because political expenditures support causes intrinsic to self-expression. An interesting body of law, termed the "Forced Speech Doctrine," holds that freedom of speech under the First Amendment to the U.S. Constitution includes freedom from compulsory speech. The two major Supreme Court cases in this boutique category of First Amendment jurisprudence are Keller v. State Bar of California, and Abood v. Detroit Board of Education. These cases held that dissenting attorneys and nonunion public school teachers, respectively, could not be required by law to contribute money to an organization that uses compulsory dues to make political expenditures that are unrelated to the organization’s mission. Such compulsory dues constitute a violation of the individuals’ freedom of speech under the First Amendment to the U.S. Constitution. As this Note will discuss, after Citizens United,...Safeguarding freedom of expression requires protecting dissenting shareholders from being forced to support disagreeable causes. To provide such protection, it is paramount that corporations disclose how they are spending their shareholders’ money.

The Corporate Superior

To stimulate even more thinking about possible PRO contentions, recall earlier in this analysis when I explained campaign financing, it was noted that individuals are subject to strictly regulated limits on how much they may donate toward an election campaign.  This limit was designed to prevent the possibility of political corruption and influence peddling.  Since the Supreme Court has found in favor of Citizens United, unlimited corporate "donations" to campaigns in the form of independent expeditures establish corporate enties as outside of regulatory limitation.  This would suggest the Court actually supports the possibility that corporate influence is superior to that of individuals.  I think I will reserve this particular topic for possible future expansion.

Over-ruling Corporate Regulation

What safe-guards are in place to ensure the message of corporations are within the best interests of the American citizens?  History is full of examples of corporate speech which was misleading, destructive, and dangerous and regulations have been put in place to prevent abuses in some of the more egregious cases.  But, the Citizens United case, with its unrestricted stance complicates the efforts of regulators to protect individuals.

Piety 2010:
Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications....

The Citizens United opinion, with its rhetorical framing of corporations as "citizens," provides ammunition for those arguing that commercial speech ought to receive full First Amendment protection. The antidiscrimination rhetoric is troubling because it provides cover for the Court's use of its countermajoritarian power on behalf of the powerful rather than against them. Full protection for commercial speech would threaten many of the regulatory initiatives of the last couple of years.

Given the disastrous corporate collapses of the last few years, it is evident the market cannot always be relied upon to protect the public. False and misleading commercial speech poisons the informational environment. Like an out-of-control oil well, large corporate interests inject vast amounts of "noise" (false and misleading speech) into the public sphere, every day, virtually unchecked. As we have seen with tobacco, this informational pollution can have significant negative consequences for public health, safety, and economic stability. Full First Amendment protection of this speech seems likely to make things worse. Can it really be the case that respect for freedom of expression makes the government powerless to combat informational pollution? In another First Amendment case, Justice Jackson famously warned the Court not to turn the Bill of Rights into "a suicide pact." But constitutional protection for commercial speech might do just that.

For the Con position, click here.

For links to other Public Forum debate topics, click here.


Freedom of Speech and Press: Exceptions to the First Amendment, Congressional Research Service
Henry Cohen, Legislative Attorney, October 16, 2009

Kathleen M. Sullivan, 2012

Rescuing "We the People"
Congressman Jim McGovern, 2012

Citizens United and Forced Speech: Why Protecting the Dissenting Shareholder Necessitates Disclosure of Corporate Political Expenditures After Citizens United v. FEC, Washington and Lee Journal of Civil Rights and Social Justice
Sabina Bunt Thaler 2011

Experts assess impact of Citizens United
HLS professor suggests constitutional amendment stating corporations are not people
Jill Greenfield, Harvad Law School Communications, 2012

Tamara R. Piety, Commentary, Citizens United and the Threat to the Regulatory State, 109 Mich. L. Rev. First Impressions 16 (2010),

Monday, December 10, 2012

PF Jan 2013 Citizens United - Election Process

For part one of this analysis, click here.

The Election Process

In part one of this analysis I discussed how the election process can be defined as the process, or procedures or steps employed in making an election which is a choice.  I was intentionally trying to convey the idea that the election process is much more that casting a ballot, having it counted and then using the count to select electors from the electoral college.  In fact that ballot casting and procedures which follow are the final steps in a long process of selecting a candidate which typically begins some two years prior to the ballot casting and counting.  It starts when individuals announce their intention to seek the nomination of their party for the office in question.  Then begins a protracted process of securing the nomination by means of campaigning, which amounts to trying to persuade the voters the potential candidate is the "best" choice to represent his or her party.  Once the nomination is won, the process continues with even more campaigning trying to persuade the voters a particular party choice (or independent) should be selected to the office.  Finally the polling is done and the votes are counted.  So we see there is a two year process leading up to the final selection which concludes in a very short period (typically a single day) of ballot casting followed by a few weeks to validate the counts.

The resolution asks us to debate whether the Citizen United decision by the US Supreme Court harms the "election process".  Since the Citizen United decision impacts the period of time in which candidates campaign, prior to that single day in November when ballots are officially cast we must assume the resolution is not specific to the events which transpire from November onward.  Let's face it.  Once the ballots are cast, there is no way any super PAC can influence the election or have an impact on the process.  Therefore, despite the very ambiguous choice of words in the resolution, we must assume the intention is to debate about the effect super PACs have on US political campaigns.  I think any team that tries to spin it into a case which claims no harms to the process of final ballot casting, counting and electoral college delegate selection will be non-topical or at best over-limiting. BUT...

Rogues in the Ranks

There is one way Pro can push the debate beyond the date voters make their final choices.  Remember, for presidential elections in the United States we use an indirect method of voting.  Our choices are carried by representatives of the electoral college and it is they that ultimately choose a candidate for President.  In most states the electors are expected to vote according to a plurality of the votes in the district or state they represent.  For example, in Ohio, there are 18 electors.  Whichever candidate wins the greatest number of votes (the plurality) each of the 18 electors are expected to cast their votes for the candidate that won the plurality of votes.  I say expected, because there is no guarantee they will vote as indicated.  Prior to the 2012 presidential election, CNN reported the following:

"An investigation by The Associated Press last month revealed that as many as five Republican electors expressed uncertainty whether they would actually vote for Mitt Romney if he carried their state. These electors appear to be unhappy with Romney and continue to show support for his primary rival Rep. Ron Paul.

In the wake of this news, one of the electors abruptly resigned her position. On another front, a Minnesota elector suggested that he may not vote for the Romney-Ryan ticket if the candidates fail to furnish their birth certificates (in an effort to put pressure on all candidates to furnish their birth certificates).

These potentially rogue electors would effectively disenfranchise hundreds of thousands, if not millions, of voters. The 2012 election will probably be very close. Consequently, in the worst of scenarios, a "faithless" vote might not only disenfranchise voters but alter the outcome of the race. While unlikely, this begs the question: Why do presidential electors still have independence in our current presidential selection process?"

Electors may break ranks, so to speak, and decide to vote according to their own whims or conscious.  Such "faithless" electors are often called "rogues" for breaking the duty they are expected to carry out and if a faithless vote is cast, there is no law to prevent it.

"The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some State laws provide that so-called "faithless Electors"; may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged."

Electors meet December 17, 2012 in their respective states to officially record their votes for the 2012 presidential election and send them to Congress.  This means, a super PAC may still have an influence on the election even after the general election up until the electors cast they votes.  A super PAC may be able to influence a faithless elector to break ranks and change the expected vote and possibly the outcome of a tight election.  There is no evidence I am aware of that an elector has changed their expected vote due to PAC influence so I only mention this a potential point of debate.  In my opinion, the effect of super PACs on rogue electors will not be provable if at all, until there have been sufficient numbers of elections in which to draw conclusions.

Internet and Social Media

Generally speaking, we may assume in the digital age, the Internet and social media has an impact on the candidate selection process in the US.  No doubt one will find research which attempts to measure this influence and the Federal Election Commission has decided it will not do anything to restrict or limit Internet advertising, blogging, or other forms of electioneering.  Despite these facts, once again I must conclude this should not be a contention in this debate except in those cases in which super PACs use the Internet as means of influencing elections.  One can be sure, a super PAC will use any media type to get the message out.  Debaters should be aware that the major issue is not so much what media super PACs use, rather, whether the unlimited use of financial resources is harmful.

The Debate Context

In the first part of this analysis I have presented the basic definitions of the words in the resolution and taken a general swipe at offering an interpretation of the resolution.  In part two, I went into depth in describing the background of the various laws which brought us to the Citizens United Decision.  Finally in this part of the analysis I have defined a context for the terminology "election process".  Based on my analysis, therefore, we can pretty much limit this debate to, does the fact super PACs are allowed unlimited spending harm the process of selecting candidates and issues?  In particular, does the unlimited free speech given to particular groups during election campaigns hurt the American way of making election choices.

In the next parts of this analsys, I will present the Pro position.

For links to other Public Forum debate topics, click here.

Sunday, December 9, 2012

PF Jan 2013 Citizens United - Background

For part one of this analysis, click here.

Campaign Finance

Running an effective political campaign in the US costs money.  There is travel, advertising, advisers to pay, and so on and depending on the office being sought or issue being advanced, the costs can be significant.  For House members the amount could be over one million dollars, for a Senator, ten times that amount and for a presidential candidate, 1000 times more.  That's over one billion for a presidential campaign.  State and local campaign finance is governed by local law so will have variations from state to state and locale to locale.  I think for the purposes of this analysis we should not attempt to explore these.  Since the resolution deals with a court ruling specific to national campaigns, I will limit the analysis to national campaign funding unless I find out later that debaters are expanding the issue.

Candidates who run for office have three primary sources for funding.  Obviously they can put up their own money and be self-funded.  They may also take public funds or private funds.  Public funding is provided by the government itself in the form of matching funds triggered when the candidate successfully raises at least $5000 in each of at least 20 states; so, $100,000.  When accepting public funds, spending limits are imposed by a formula in the legal statute which permits public funding.  Private funds are those which come from sources in the private sector such as individual contributors, corporations, organizations, etc.  The private sector donations are broken down into small, those contributing $200 or less and large, those who contribute more.  Again, there are limits established by law (statutory limits) on how much money may be contributed to the various campaign entities such as directly to the candidate, to the candidate's national party and the local party headquarters.

Campaigns are required by law to disclose the identities and affiliations of all contributors which are comprised of organizations or committees or other such groups.  They must also identify any individual donor who contributes more than $200.  In addition, they must report their expenditures especially any pay-outs to other individuals, groups, consultants and the like.  The Federal Election Commission, maintains these disclosures and they are available to anyone who wishes to see them.

It does get more complex because individuals are able to organize and bundle their funds in various legal ways. Regardless, all of these kinds of financing are direct funding in which the candidate's campaign receives funds to operate the various functions of campaigning: travel, advertising, renting sites, paying helpers and advisers and so on.  But there is another form of funding which is indirect and this is seen when an individual or group decides to spend money on their own to promote a candidate or cause.  For example, I could spend a bunch of my own hard-earned cash to print posters urging people to vote for John Stewart for President.  If John Stewart were running for president and had his own campaign organization up and running, they may be really grateful I did this but they would not be required to disclose it to the FEC (Federal Election Commission) because I did not give the money to them nor collaborate with them.  This form of indirect spending is really at the heart of this resolution.  How far can I go in promoting my candidate or issue not only in terms of spending but also in terms of content?  On the other hand, what if me and a few my friends organized ourselves and began to speak out against John Stewart as a candidate?

Political Action Committee

Individuals are allowed to make unlimited expenditures to support or oppose any political issue or candidate so long as those efforts are completely independent from the candidate and any campaign entities.  So, if I put up posters encouraging the election of John Stewart, I state on the poster it was paid for by me and John Stewart has not approved or endorsed it.  If I organize a group of friends to elect John Stewart the rules change.  When a group collects or spends more than $1000 to encourage voting for or against a candidate or issue in a national election, the federal government will classify that group a "political committee" also called a Political Action committee or PAC. There are four kinds of PACs.  Connected PACs are formed by corporations, unions and organizations, only take money from their members and are created to directly assist in a campaign.  Non-connected PACs are created by groups which have an ideological or social agenda and will endorse any candidate which best suits their agenda.  For example, the AARP (American Association of Retired People) is a powerful non-connected PAC which advances rights for elderly folks.  Leadership PACs are formed by congress-persons usually for the benefit of other candidates since the funds they attract cannot be used in their own campaigns.  They function as non-connected PACs.  All PACs are limited in how much money they can directly donate to a candidate or campaign organization but there is no limit on the amount they can spend for advertising in support of a candidate or issue.  Finally there is the independent expenditure-only PAC which are now known as super PACs.  These PACs are organized to operate completely independently of any other candidate group or party.  As independents they may spend unlimited funds on advertising and and may collect unlimited funds from individuals, corporations, unions, etc.  Super PACs are not allowed to coordinate their efforts in any way with any candidate campaigns.

Super PAC Genesis

In the beginning was the Taft-Hartley Act which completely barred unions and corporations from financially influencing political campaigns.  And the gubment saw that it was good until the unions created political action committees as a way to avoid the law.  So the gubment said, let us create a new law and another limb of the gubment to oversee the law and the gubment passed the Federal Election Campaign Act and created the Federal Election Commission in 1971.  This law required disclosure of contributions and expenditures and limited contributions by individuals and groups.  Just a short time later, the law was challenged in the case of Buckley v Valeo.  The plaintiffs asserted the provisions which restricted donations were a violation of the first amendment free speech laws.  The court upheld the provisions for disclosure, and the limits but did allow that individuals may have unlimited donations to their own campaigns. Direct contributions from corporations and unions remained forbidden, though their PACs could make limited collections.

Then in 2002, the gubment decided to pass a new bill, the Bipartisan Campaign Reform Act (BCRA)  also known as the McCain-Feingold Act which prevented national campaign committees from using money that fell outside of federal limits and ban what was called electioneering communications within 30 days of a primary or 60 days of a general election.  This effectively banned advertising or documentaries paid for by corporations or unions which mention a candidate. So now the stage was set for the great flood. 

The Flood Gates Open

Citizens United was founded as a political organization which mostly advocated conservative values of limited government, family unity and strong defense.  In 2004 they filed a claim with the FEC that the film Farenheit 9/11 violated the McCain-Feingold Act as a political advertisement aimed at defeating Bush in the presidential campaign.  The FEC did not agree so Citizens United then went in the documentary film business.  Later, they sought to air one such film, critical of Hillary Clinton which the FEC ruled was a violation of the McCain-Feinman Act.  Citizens United took it to court and the case was eventually appealed to the US Supreme Court as Citizens United v Federal Election Commission. As summarized by the Oyez Project of the Chicago-Kent College of Law:

"The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections."

Another PAC called SpeechNow filed a complaint to the FEC in 2008 claiming several provisions of McCain-Feingold violated their first amendment rights. In a ruling by the US District Court in Washington DC and based on the Citizen United decision, it was decided that limits on contributions to independent expenditure committees were unconstitutional. Basically this opened the flood for contributions and expenditures for these kinds of PACs which became called super PACs.

What It All Means

In the preceding, I gave a bit of history on how these things evolved which eventually lead to the framing of this resolution.  As a result of the Citizens United decision, we have seen unprecedented independent fund raising and expenditures in advertising aimed at influencing federal elections.  I have diminished or eliminated many of the details but tried to give a fairly complete overview of the events which resulted in where we are today.  The over-arching issue in this resolution is whether or not the Citizen United decision is bad for the election process in the US.  We get the message there are first amendment issues at stake if we restrict independent campaign expenditures for corporations and unions.  But, before we can determine what harms there are to the election process we need to understand, what is the "election process".

For information about the "election process", click here.

For links to other Public Forum debate topics, click here.


Federal Election Commission Laws

Federal Election Commission Citizens Information

Legal Information Institute
Citizens United v. Federal Election Commission (Docket No. 08-205)

Friday, December 7, 2012

LD Jan/Feb 2013 World of Rehabilitation

For part one of this series, click here.

Thinking Positively

Recall from part two of this series, there are two principle schools of thought, the classical school of retributive punishment and the positive school which focuses more on the criminal than the crime.  Most courts in the U.S. criminal justice system function in a place somewhat in the middle.  Generally, judgements in criminal cases are retributive in that they assign punishment according to law but the law does allow for a certain amount of modification due to mitigating circumstances which may include such things as an examination of the mental state and past experiences of the offender, and situation surrounding the details of the offense.  This evaluation may work in favor or against the offender.  So it seems there is a certain amount of consideration given to the individual charged with a crime that ultimately plays a role in determining the degree of retribution but it is a little different for the thinkers of the positive school.  The positive thinkers sought to understand the root causes of criminal behavior and perhaps even "cure" it and this is the mindset behind restorative justice or rehabilitation and is something I wish to explore in more detail in this analysis since obviously it is the major component of the Affirmative advocacy.

Rehabilitation Concept

Smith (undated):
"Although rehabilitation is often considered a type of punishment for criminal offenders, its objectives are therapeutic rather than punitive. While some theories of punishment claim that criminals deserve to suffer for their crimes, the rehabilitative ideal views criminal behavior more like a disease that should be treated with scientific methods available to cure the offender. Many convicts suffer from mental and physical illness, drug addiction, and limited opportunities for economic success and these problems increase the likelihood that they will engage in criminal activity. If we simply incarcerate the convict while she “pays her debt to society,” she will likely reenter it with all of the obstacles that drove her to crime still in place. She will also need to contend with additional difficulties: a criminal record will impact her employment opportunities, she will be older and still without marketable skills or education, her social relationships may have deteriorated while she was in jail, and she may have become further acclimated to criminal culture. Thus incarcerating offenders could actually make them more likely to commit offenses after they are released, and recidivism rates attest to this. A rehabilitative approach would attempt to treat the underlying cause of her transgressions so that she can return to society to become a full and productive citizen. In other words, instead of exacting revenge against criminals and making their lives worse, rehabilitation tries to help them."

Though deterrence and rehabilitation are both utilitarian theories and forward-looking in their approach to justice, deterrence is not equivalent to rehabilitation.

Banks 2008:
"Utilitarian theory argues that punishment should have reformative or rehabilitative effects on the offender (Ten 1987: 7–8). The offender is considered reformed because the result of punishment is a change in the offender’s values so that he or she will refrain from committing further offenses, now believing such conduct to be wrong. This change can be distinguished from simply abstaining from criminal acts due to the fear of being caught and punished again; this amounts to deterrence, not reformation or rehabilitation by punishment. Proponents of rehabilitation in punishment argue that punishment should be tailored to fit the offender and his or her needs, rather than fitting the offense.  Underpinning this notion is the view that offenders ought to be rehabilitated or reformed so they will not reoffend, and that society ought to provide treatment to an offender. Rehabilitationist theory regards crime as the symptom of a social disease and sees the aim of rehabilitation as curing that disease through treatment (Bean 1981: 54).  In essence, the rehabilitative philosophy denies any connection between guilt and punishment (p. 58)."

The Effectiveness of Rehabilitation - Does it Matter?

There are innumerable studies presenting evidence about the effectiveness of rehabilitation in preventing future crime.  There can be little doubt, the Neg debater will arm themselves with evidence showing rehabilitation is a failed experiment.  Of course, there is evidence to the contrary and in countries where rehab programs continue, there is empirical evidence of success although no one will claim anything near 100% success.  Aff may also expect Neg will claim these programs are not applicable to U.S. justice systems.  Technically, Aff should not be debating on that level.  The resolution states rehabilitation should be valued above retribution.  No particular rehabilitation program or theory is specified so we assume the debate centers on rehabilitation as a concept and the concept will tend to deal with the utilitarian, forward-looking idea that criminal behavior can be modified to the betterment of society and even if it is not, the change in mindset and attitudes toward offenders has a greater net benefit to society than a retributive approach to criminal justice.

Raynor (2009):
"The utilitarian justification of rehabilitation as being in the interests of society as a whole has taken a number of forms in its long and influential life, but one of the most obvious and important changes is a periodic shift between what might be called a strong and weak version of the argument, or perhaps more accurately an optimistic and a guarded claim.  Briefly, the strong or optimistic claim is that society as a whole benefits from dealing with offenders in such a way as to reduce their offending: rehabilitating offenders contributes to the general good. The weak or guarded claim is that although we cannot be confident in our ability to change offenders for the better, we can, at least, avoid unnecessary harm resulting from excessive or damaging penalties. This argument is often used, for example, to argue for a presumption in favour of community penalties and against custodial penalties, and often combined with the argument that even if the effects on offenders are similar, the custodial option is cheaper and so the principle of maximising general benefit applies. The choice between strong and weak forms of the argument depends largely on the state of current opinion regarding the effect of rehabilitative penalties on offenders’ behaviour: the strong form of the argument is deployed in periods of optimism about this (Mannheim’s proposals are a good example), and the weak form tends to be used in times when people are less confident about the effectiveness of rehabilitative penalties: if nothing works, cheaper is better."

This takes the debate into a very philosophical framework in which pragmatic concerns and statistics are meaningless.  Nevertheless, Aff must create a world where such a framework is debatable despite the very reasonable claim by Neg that idealistic worlds are nice to visit but one should not value them over reality.

A Real-World Rehabilitation

Taking the philosophic high-road and creating a world where pragmatic objections carry little weight is an intriguing possibility for skilled debaters.  But not everyone can sustain such a construct so some Aff debaters, perhaps most of them, can still examine real-world scenarios where rehabilitation is not only possible but desirable and it works.  I mentioned in part two of this analysis that certain limits may exist and one could debate, for example, rehabilitation as a viable method of dealing with non-violent offenders, juveniles, drug addicts or alcoholics, and so on.

Click here for a look at the Aff Position.


Rehabilitation, Encyclopedia of Criminal Justice
Nick Smith, (undated), University of New Hampshire Department of Philosophy

Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.

Assessing Correctional Rehabilitation: Policy, Practice, and Prospects
Criminal Justice
by Francis T. Cullen and Paul Gendreau, 2000

European Journal of Probation
Peter Raynor, Gwen Robinson, 2009

Thursday, December 6, 2012

LD Jan/Feb 2013 Retribution Concepts

For part one of this series, click here.

Reining In the Topic

I think this is potentially a huge topic and finding a specific direction may be a bit difficult for debaters.  For example, when looking at the comparative advantages of rehabilitation versus retribution one may consider the resolution from the vantage point of society, the convict or the victim and find that each may have completely differing points of view which radically changes the framework of the debate.  Each of these points of view are completely legitimate in this debate.  Additionally, there are many differences in the kinds of criminals which also has potentially significant impact on the debate.  The advocacy for juvenile offenders will be quite different from adult offenders as well as citizens versus non-citizens.  Other factors to consider are the nature of the crimes themselves.  Should rehabilitation be valued in cases of child molestation, acts of terrorism or genocide? No matter whether your case focuses on the crimes or the criminals potential problem areas exist which can make the debate difficult and perhaps force you to justify your point of view as the one the judge should consider over all others.  Evidence will show the American system of criminal justice, is rife with problems.  On the one hand, the principle of due process seems moral and provides sufficient protection to guard against harming the innocent accused.  But once a person enters the penalty phase of the system, society extends little concern to them and much of our penal system is founded upon principles aimed toward punishment for wrong-doing and hoping the undesirability of prison-life is a deterrent to others.  Aff debaters will be forced to face deeply entrenched ideology in the minds of some judges, especially those who have been or are related to victims of crime themselves.

On Crimes and Punishments

Theories of criminal punishment can be found in two principle schools of thought.  The classical school of thought found in the works of Cesare Becarria (18th century) and expanded by Jeremy Bentham.
Internet Encyclopedia of Philosophy []:
"Beccaria develops his position by appealing to two key philosophical theories: social contract and utility. Concerning the social contract, Beccaria argues that punishment is justified only to defend the social contract and to ensure that everyone will be motivated to abide by it. Concerning utility (perhaps influenced by Helvetius), Beccaria argues that the method of punishment selected should be that which serves the greatest public good.

Contemporary political philosophers distinguish between two principle theories of justifying punishment. First, the retributive approach maintains that punishment should be equal to the harm done, either literally an eye for an eye, or more figuratively which allows for alternative forms of compensation. The retributive approach tends to be retaliatory and vengeance-oriented. The second approach is utilitarian which maintains that punishment should increase the total amount of happiness in the world. This often involves punishment as a means of reforming the criminal, incapacitating him from repeating his crime, and deterring others. Beccaria clearly takes a utilitarian stance. For Beccaria, the purpose of punishment is to create a better society, not revenge. Punishment serves to deter others from committing crimes, and to prevent the criminal from repeating his crime."

The positive school of thought championed by Cesare Lombroso and others in the mid-19th century are credited with creating a renaissance of sorts in criminology, shifting the focus toward a study of criminals and their behavior.  Many of Lombroso's theories have been scientifically discredited but the direction he influenced result in the idea that punishment should fit the criminal, not the crime.  This has generally resulted in criminologists trying to understand the causes of criminal behavior and if understood, perhaps there can be a means to reduce or eliminate the behavior.

Retribution, Retaliation or Vengeance?

The resolution uses the word retribution which brings different things to mind for different people and there will no doubt be attempts to link the meaning to retaliation or vengeance.  On an individual level, retribution, and retaliation are often synonymous, driven by an emotion need to seek revenge.  A well-ordered society does not tolerate vigilantism or revenge so seeks to control individual acts of retribution in favor of the non-impassioned criminal justice system.  Retribution by the criminal justice system is a sanction for wrong-doing and as such it is not an emotional reaction, nor personal and it is limited in proportion to the violation it penalizes.  Such retribution may also be viewed as a form of victim redress, that is, an attempt to repay the suffering of a victim of crime by causing the perpetrator to suffer a proportionate amount and as such can be seen as a form of "retributive justice" which serves to satisfy the societal desire for retaliation or vengeance.  Retribution by the criminal justice system, therefore, serves as a means for the state to control violence by reducing the desire for "street justice" or retaliatory violence.

Finckenauer 1988:
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy - of self-help, vigilante justice, and lynch law. [Furman v. Georgia, supra, 408 U.S. 153 at 308, 92 S. Ct., at 2761 (Stewart, J., concurring)] (para 18).
This opinion made a number of provocative assertions: that there is such a thing as a retributive instinct in man; that channeling this instinct serves the utilitarian purpose of promoting stability; and that retribution and desert are synonymous.

Banks 2004:
Critics of retributionist theories of punishment argue that retribution is basically nothing more than vengeance. However, Nozick argues that there is a clear distinction between the two because “retribution is done for a wrong, while revenge may be done for an injury or harm or slight and need not be a wrong” (1981: 366). He also points out that whereas retribution sets a limit for the amount of punishment according to the seriousness of the wrong, no limit need be set for revenge. In this sense, therefore, revenge is personal whereas the person dispensing retributive punishment may well have no personal tie to the victim. As Nozick points out, “revenge involves a particular emotional tone, pleasure in the suffering of another” (1981: 367).

Retributive Justice

When retribution is under the responsibility of the state, it serves as a means to establish the rule of law and guard against the potential abuses of unrestrained personal vengeance.  Ideal retributive justice is impartial and restrained by the concept of just deserts; punishment in proportion to the crime; no more and no less.  It is an exercise of justice because it is proportional but it is backward-looking.

Maiese 2004:
Central to retributive justice are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labor, while those who break the rules deserve to be punished. In addition, people deserve to be treated in the same way that they voluntarily choose to treat others[1]. If you behave well, you are entitled to good treatment from others.
Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do his part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He has helped himself to unfair advantages, and the state needs to prevent this to preserve the rule of law.[2]
In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."[3] It is suffered as a debt that the wrongdoer owes his fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.
Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice

Retribution and Deterrence

Some may consider that retribution for crimes promotes deterrence. That is, by knowing there is a penalty for committing a crime, one may be deterred from committing it.  Such a theory is forward-looking and views retribution as a means to the end of preventing future crime so holds to a utilitarian world-view.  When punishment is merely a response to past action it serves no utilitarian purpose.

Banks 2004:
Theories that set the goal of punishment as the prevention of future crime (deterrence) are usually referred to as utilitarian because they are derived from utilitarian philosophy. Past oriented theories (theories that focus on the past actions of the offender) are referred to as retributivist because they seek retribution from offenders for their crimes. The retributivist conception of punishment includes the notion that the purpose of punishment is to allocate moral blame to the offender for the crime and that his or her future conduct is not a proper concern for deciding punishment (Hudson 1996: 3)...

To utilitarian philosophers like [Jeremy] Bentham, punishment can be justified only if the harm that it prevents is greater than the harm inflicted on the offender through punishing him or her (Hudson 1996: 18). In this view, therefore, unless punishment deters further crime, it simply adds to the totality of human suffering. In other words, utilitarians justify punishment by referring to its beneficial effects or consequences. In this sense, utilitarian theory is a consequentialist theory that considers only the good and bad consequences produced by an act as morally significant (Ten 1987: 3)...

Those supporting the theory of punishment as deterrence distinguish between individual deterrence and general deterrence. Individual deterrence involves deterring someone who has already offended from reoffending; general deterrence involves dissuading potential offenders from offending at all by way of the punishment administered for a particular offense (Hudson 1996)...

Retributionists claim a moral link between punishment and guilt, and see punishment as a question of responsibility or accountability (Bean 1981: 14–15). Once society has decided upon a set of legal rules, the retributivist sees those rules as representing and reflecting the moral order. Society’s acceptance of legal rules means that the retributivist accepts the rules, whatever they may be; accepts that the rule makers are justified in their rule making; and claims that those who make the rules provide the moral climate under which others must live. Accordingly, retributivists cannot question the legitimacy of rules. They argue that retribution operates on a consensus model of society where the community, acting through a legal system of rules, acts “rightly,” and the criminal acts “wrongly” (Bean 1981: 17). It follows that the retributivist position makes no allowance for social change or social conditions, looking instead only to crime. Raising the issue of the social causes of crime or questioning the effectiveness of punishment are irrelevant considerations to a retributivist.

For a look at rehabilitation, click here for the next part of this analysis.


JAMES O. FINCKENAUER, Rutgers University, 1988, Justice Quarterly, Vol 5  No. 1

Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.

Retributive Justice: Its Social Context
Neil Vidmar 2001

Retributive Justice, Beyond Intractability
Michelle Maiese, May 2004

Tuesday, December 4, 2012

PF Jan 2013 "Citizens United Case" - Definitions

Resolved: On balance, the Supreme Court decision in Citizens United v. Federal Election Commission harms the election process.


This topic focuses on a specific U.S. Supreme Court case which is claimed in popular media to have opened the "floodgate" of campaign spending to the detriment of the political process.  However, we will find as we explore this case, the issues are not so one-sided.  Education will be a key factor in this topic and I think that is one reason I am excited about it.  It will offer a great opportunity for students to glimpse the "backroom" tactics of political attack ads while exploring the necessity to protect such ads as a form of free speech.  I also think, debaters have an excellent opportunity to educate judges about the implications of the court ruling and at the end of January, we will all be better citizens as a result.


on balance
"after weighing up all the factors", Collins English Dictionary.
"after considering the power or influence of both sides of a question", Cambridge Academic Content Dictionary.

Supreme Court
The supreme court is the highest (greatest authority) court within a given jurisdiction.  As such there are many supreme courts within the United states.  Each state, for example, has a state Supreme Court, but since this resolution references a specific decision in U.S. jurisprudence, it obviously means the United States Supreme Court. Therefore, as found in the Farlex online Free Dictionary which references, West's Encyclopedia of American Law, edition 2. Copyright 2008, "The Supreme Court of the United States is the highest federal court. Although it was explicitly recognized in Article III of the Constitution, it was not formally established until passage of the Judiciary Act of 1789 (1 Stat. 73) and was not organized until 1790. Though its size and jurisdiction have changed over time, the Supreme Court has fulfilled its two main functions: acting as the final interpreter of state and federal law and establishing procedural rules for the federal courts."

From the Farlex online Free Dictionary which references, West's Encyclopedia of American Law, edition 2. Copyright 2008,"A conclusion reached after an evaluation of facts and law".
"...When referring to judicial matters, a decision is not the same as an opinion, although the terms are sometimes used interchangeably. A decision is the pronouncement of the solution of the court or judgment in a case, while an opinion is a statement of the reasons for its determination made by the court."

Citizens United v. Federal Election Commission
Specifically refers to a legal case argued before the U.S. Supreme Court, Docket No. 08-205, Appealed in the U.S. District Court in Washington D.C., July 18, 2008 and argued before the Supreme Court on March 24, 2009.  The case arose after certain documentaries and political films were blocked by provisions of a prior case aimed at limiting, among other things, "electioneering communications".  Basically, the case overturned previous rulings and decided it was unconstitutional to restrict communication by corporations, associations and unions.  This case will be discussed in detail later in this analysis.

Merriam-Webster, verb "to cause harm to" where harm is defined as "physical or mental damage, mischief or hurt".  While these definitions are useful in establishing a general meaning, for our purpose in this debate we can interpret the word to mean it causes undesirable effects or consequences.

election or election process
Merriam-Webster defines election as "the process of electing (choosing)". Process is defined as "a series of actions or operations conducing to an end", in this case, the series of actions leading to a choice.  Therefore, we interpret "election process" to mean, in this context, the actions resulting in people selecting individuals for government offices or accepting or rejecting ballot issues such as levies, taxes, and other kinds of issues which must be approved by voters.  The wider interpretation would not be limited to the actual polling method in which individuals officially indicate their final choice but rather in the process of evaluating and deciding the final choices.

Resolution Interpretation

Based on the foregoing definitions we interpret the resolution to mean, after weighing both sides of the issue, the U.S. Supreme Court judgement to not limit independent communications by corporations, and unions, causes undesirable consequences for the actions leading to the final selection of candidates and issues by voters.  In a nutshell, unrestricted communication by corporations, associations and unions harms the way voters select candidates and ballot issues.

Why This Resolution?

This resolution was no doubt influenced by the recent 2012 presidential election campaign which witnessed the rise of so-called super-PACs (Political Action Committees) and saw an unprecedented $6 billion spent overall, in the election process leading up the vote in November.  A New York Times article, published in November 2012 summarizes the issue very nicely:

"President Obama and his Republican opponent, Mitt Romney, both raised more than $1 billion apiece. And the scale of outside spending was similarly staggering: more than $1 billion, about triple the amount in 2010.

But while outside spending affected the election in innumerable ways — reshaping the Republican presidential nominating contest, clogging the airwaves with unprecedented amounts of negative advertising and shoring up embattled Republican incumbents in the House — the prizes most sought by the emerging class of megadonors, most of whom favored Republicans, remained outside their grasp. President Obama was re-elected, and the Democrats strengthened their lock on the Senate.

The biggest single donor in political history, the casino billionaire Sheldon Adelson, contributed more than $60 million, but of the eight candidates he supported, none were victorious.

Flush with cash, Republican-leaning groups outspent Democratic ones by an even greater margin than in 2010. But rather than produce a major partisan imbalance, the money merely evened the playing field in many races.

Some advocates for tighter campaign financing regulations argued that who won or lost was beside the point. The danger, they argued, is that in a system reshaped by the Supreme Court’s Citizens United ruling, candidates and officeholders on both sides of the aisle are far more beholden to the wealthy individuals who can finance large-scale independent spending."

While the tactics and negative attack ads used in the recent election campaign may have proven to have little influence this time in deciding the outcome of the election, one does not need to be a political science major to understand the potential harms which may arise from the influence of unlimited private, corporate, or union contributions to the campaign effort may have on political campaigns.  While the messages churned out by the super-PACs may not have produced the desired results, one can easily see how such wide-spread political advertising could have a huge influence if the media could create messages which do sway voters.  But more important than the influence such ads have on the American voter, is the influence super-PAC money has on the candidates.  It seems to be a simple fact that campaigns which have the most financing seems to fare better and candidates may be tempted to provide political favors to large contributors. All right, let's not be so politically correct.  Candidates DO favor large donors, granting them political favors.

The potential debate around this resolution may deal with the influence America's elite have upon the political process to the exclusion of the lower socio-economic classes.  Indeed, there is evidence, that private donations from lower social groups are down and many feel their contributions have little impact on the outcome of elections.  The implications have already been debated by Public Forum debaters who examined the question of income disparity and its effect on democratic principles (December 2011).  Certainly, the wider debate could touch on issues of threats to democratic ideals.

On the other side of this debate, is the question of constitutional rights and free speech.  The notion that corporations have limited free speech rights with respect to political campaigns is flawed.  Most media outlets, newspapers, broadcast companies and publishers are parts of large corporations who freely and without restriction express their opinions about candidates and issues.  So why are other corporations restricted from such speech?  Supreme Court Judge Alito in a November 2012 speech explains:

"The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations.  Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech."

Attorney Steve Simpson of the Institute for Justice sees attempts to limit speech by corporations as an exercise of political power by those who are already in power.  He explains :

"We often hear that “corporations aren’t people,” which, of course, is true. They are groups of people. More particularly, they are legal entities that are composed of and operated by people who have voluntarily associated with one another and who want to voluntarily associate with others as a legal entity. As such, corporations have the same legal rights as the people who compose them (at least those that people can exercise in cooperation with one another), no more, but no less.
 The motives of those who attack corporate speech and Citizens United are twofold. First is the desire for political power. Elections are the path to political power, so those who want that power try to control who can influence the outcome of elections. One way to do that is to restrict who can speak by restricting how they finance their speech."

Here We Go...

This topic should prove to be very interesting.  There is a certain level of distrust by the general public which mostly believes, according to polls, that campaign spending should be limited.  Certainly, history is rife with examples of how wealth can corrupt politics.  On the other hand is the cold-hard face of free speech rights which the Courts have fervently protected throughout the history of the U.S.

This topic is continued in part two.

For links to other Public Forum debate topics, click here.

Monday, December 3, 2012

LD Jan 2013 Rehabilitation - definitions

Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system.


This resolution has been debated several times in recent years with slightly different wording (2003 - NFL Nationals - Resolved: rehabilitation ought to be valued above punishment in the U.S. criminal justice system.)  Very clearly, we will be debating which of two specific approaches to dealing with convicts has the greatest value.  Before we can establish which approach should be valued over the other, we may need to understand the goal we are trying to achieve through the criminal justice system.  So if we determine the goal is reducing crime, we will examine whether rehabilitation or retribution is better at reducing crime.  But...that is one level of establishing value. Whichever action better serves the purpose should be valued.  However, there may be added value which can be brought out which gives advantages or disadvantages to one side or the other which extend beyond the basic purpose of reducing crime and these are fair game in this debate.


According to Merriam Webster, we can define rehabilitate (verb) as to restore to a former capacity or state. An alternative meaning is bring to a condition of useful and constructive activity.  This latter definition, I think, is important since it may be easier to understand the goal of criminal rehabilitation is more about making someone a useful member of society rather than restoring them to some undefined former state.  "Rehabilitation" is the noun form of rehabilitate, meaning it is a program or system of methods, procedures, practices, whatever, which carry out the act of rehabilitating.  There is much to be said about this and so we will deal with it later in this analysis.

Merriam-Webster, used to express obligation, advisability, natural expectation or logical consequence.  This is a word which should be very familiar to Lincoln-Douglas debaters.  There are several ways to spin the definition of ought depending on the sources used and intention of the case.  Some will claim ought means obligation others will claim it carries a meaning suggesting "strongly advised".  The difference lies in how the debater applies the meaning with respect to the values being supported.  We shall also explore this more deeply when we look at specific advocacies.

to be valued above
Following through the Merriam-Webster definitions, we find that something valued (adjective) has value so is something that has relative worth, utility, or importance.  It means something which is deemed valuable, meaning "having desirable or esteemed characteristics".  In the context of this resolution, it is clear the framers wish to compare two approaches to executing criminal justice for convicts and affirm that one is to be deemed more useful, important, or of greater utility that the other in serving some purpose.

Merriam-Webster, recompense; to give something to by way of compensation (as for a service rendered or damage incurred); to pay for; to return in kind.  Retribution in this context is simply "pay back" for crime and means one must pay their "debt to society" by giving up rights such as freedom, property ownership, or even life as a way of compensating for the harms committed.  It also may be described as the concept of an "eye for an eye".  Retribution, which is not the same as revenge, will be discussed more fully in a later installment of this analysis.

United States criminal justice system
The criminal justice system is the collection of laws, courts and prisons which has the purpose of reducing harms to society arising from behavior which violates the rights of others within the society. (my definition.)  A crime is any act which is contrary to public law and is punishable by the governing authority.  Harms can arise in two ways.  There are some acts which are considered harmful or dangerous to society mainly because they violate the rights of others.  There are some harms which arise from failure to carry out deeds or obligations which are considered beneficial to society, such as the duty to pay taxes which are used for the benefit of all members of the society.  I think the wording of this resolution would have been better had it stated, criminal justice system in the United States, rather than United States criminal justice system.  There are many criminal justice systems within the United States and each has its own jurisdiction and laws which it upholds.  Local and state government laws vary from locale to locale, whereas, federal laws apply to the whole of the United States.  As worded, this resolution seems to imply we should focus only upon federal justice but I think that would an unnecessary restriction for this debate so my interpretation of the resolution carries a broader, more generalized context while adhering to the westernized, U.S.-centric concepts of criminal justice.

Interpretation of the Resolution

Based on the above definitions we can offer a preliminary interpretation of the resolution as, programs which make or restore individuals as useful members of society should be considered more desirable than programs which punish individuals in the U.S. system for mitigating crimes.  It seems to be a cumbersome definition to say the least because the dictionary definitions given above do not properly convey the intent of the resolution since the meaning of words like rehabilitation, retribution, and criminal justice require more than a simple paragraph to explain.  The justice system should place higher value on rehabilitation than retribution.  We may consider both probably have intrinsic value, but the affirmative claims rehabilitation has the greater intrinsic value or perhaps offers the greater return to society in terms of value.  In my interpretation, I have provided a purpose, mitigating crime, as a standard for measurement but there is no such purpose explicitly stated in the wording of the resolution.  In order to evaluate one against the other, there must a common standard such as reduced crime rates, lower recidivism, lower cost, etc.  Therefore, it seems reasonable to assume, a common standard can be derived from the goals and purposes of criminal justice.

The Purpose of the Criminal Justice System

As seen in the preceding section, the dictionary definitions leave us with a nebulous understanding of how to interpret the resolution and without a good interpretation it is difficult to decide how to affirm or negate the resolution.  Part of the interpretation is determining how to measure the relative value of rehabilitation versus retribution and it seems reasonable to conclude, we can not do that without first understanding the purpose of the criminal justice system.  In the forward to a paper commissioned by the Bureau of Justice Statistics of Princeton University, Lawrence Greenfeld writes:

"Efficiency, effectiveness, and fairness are central goals for the administration of criminal justice in the United States.  Efficiency means economically applying available resources to accomplish statutory goals as well as to improve public safety. Effectiveness refers to carrying out justice system activities with proper regard for equity, proportionality, constitutional protections afforded defendants and convicted offenders, and public safety. Assuring equal treatment and handling of like offenders and giving equal weight to legally relevant factors in sentencing represent the types of concerns generally expressed about the fairness of the criminal justice system."

The guarding of public safety seems to be a core objective of the criminal justice system and insofar as defendants are considered members of the public until their guilt or innocence is determined, one aspect of public safety may lie in guarding the public from abuses of the justice system itself and insuring, as best as possible, the innocent are not wrongly convicted.  So while the goal of public safety is an over-arching concern, there is the additional requirement to deal properly with those who are convicted such as ensuring the rights they do retain are protected and to a greater degree to ensure their handling serves the greater interest of protecting society.

From the previously quoted paper, Charles Logan explains:

"Justice is the quality of treating individuals according to their rights and in ways that they deserve to be treated by virtue of relevant conduct. Criminal justice is rights respecting treatment that is deserved by virtue of criminal conduct.

This definition of justice is rights-based, rather than utilitarian or consequentialist. A rights-based theory of justice gives a central role to punishment as a morally necessary response to the violation of rights. To believe in rights is to believe in duties; those are alternative statements of the same concept. To believe in duties is to accept, implicitly but of logical necessity, the corollary of punishment. When we say that people have a duty to refrain from violating the rights of others, we are saying that there must be some sanction if they fail to meet that duty. Duties are given meaning by the consequences that attach to their nonfulfillment. Thus, the meaning of a duty, like that of any other norm, must be socially constructed through the attachment of sanctions to behavior. A norm (a rule, a law, a duty, a right) that had no sanction attached to its violation would be empty and without meaning.
Justice by this definition is backward-looking. It requires that we treat people according to what they have done, not what they (or others!) might do in the future as a result of how we treat them now. Justice requires that all persons, including offenders, be treated as autonomous and responsible actors and as ends in themselves, not as means to social ends.  Finally, a rights-based theory sees justice as a process, an ongoing property of criminal sanctioning as it occurs, not as an expected outcome. Criminal justice is thus a value in itself and not merely useful as a means to some other end.  Sanctioning that is evaluated as to its justice or injustice may, in addition, be evaluated in terms of its consequences for other values, such as freedom, order, happiness, wealth, or welfare, but those are separate concerns. This means that questions about the effectiveness or efficiency of the criminal justice system in achieving various “goals” or “purposes” should be kept separate from, and secondary to, an evaluation of the performance of the justice system in its most basic mission: doing justice.

But John Dilulio offers a broader delineation of the cross-purposes of criminal justice from a societal point of view:

"Americans have long been ambivalent about the purposes of criminal justice. Among other things, they have wanted a criminal justice system that apprehends and visits harm upon the guilty (punishment); makes offenders more virtuous, or at least more law abiding (rehabilitation); dissuades would-be offenders from criminal pursuits (deterrence); protects innocent citizens from being victimized by convicted criminals (incapacitation); and enables most criminals to return as productive citizens to the bosom of the free community (reintegration). They have wanted the system to achieve these contradictory public goals without violating the public conscience (humane treatment), jeopardizing the public law (constitutional rights), emptying the public purse (cost containment), or weakening the tradition of State and local public administration (federalism)."

Narrowing the Purpose

So where does the foregoing leave us?  I think we can safely view rehabilitation and retribution as methods of dealing with individuals who have entered the criminal justice as convicts (those fairly and properly convicted of violating public law).  Therefore, it seems there will be little to gain from researching the fairness or necessity of law and its interpretation by the judiciary in conducting trials.  We can assume those who stand convicted for the purpose of this debate are fairly and justifiably found guilty of breaking the law. (Of course, there will be those debaters who seek to indict the entire system of criminal justice and its obvious dehumanization and coercion but we can discuss these things later.)  Therefore, we must now focus on the relevant criteria which determines how we can measure the value of rehabilitation and retribution as a means to a end or in more abstract determinants which uphold broader values which extend beyond the purview of our ordinary understanding of criminal justice.

In the next part of this analysis, I will try to provide additional background information and then refine the discussion to specific positions for the Affirmative and Negative.

For more on retribution click here.

A few references:,-Aims-of-Criminal-Justice-updated-22-April-11-for-webposting.pdf (U.K. and Australian related but useful for some general information)

For more Lincoln-Douglas topics and discussion, click here.