Wednesday, January 27, 2010

You'd think a former professor of Constitutional law would know better

During the speech, the President made a direct dig at the Supreme Court for their decision in Citizens United and alleges that they allowed foreign corporations to spend unlimited money in our elections. Bradley Smith, the former head of the FEC sets the record straight.
Wednesday, January 27, 2010

President Wrong on Citizens United Case [Bradley A. Smith]

Tonight the president engaged in demogoguery of the worst kind, when he claimed that last week's Supreme Court decision in Citizens United v. FEC, "open[ed] the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

The president's statement is false.

The Court held that 2 U.S.C. Section 441a, which prohibits all corporate political spending, is unconstitutional. Foreign nationals, specifically defined to include foreign corporations, are prohibiting from making "a contribution or donation of money or ather thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election" under 2 U.S.C. Section 441e, which was not at issue in the case. Foreign corporations are also prohibited, under 2 U.S.C. 441e, from making any contribution or donation to any committee of any political party, and they prohibited from making any "expenditure, independent expenditure, or disbursement for an electioneering communication... ."

This is either blithering ignorance of the law, or demogoguery of the worst kind.
Smith is right. Either he's ignorant, or he's deliberately lying. Thinking of how State of the Union addresses get scrubbed by all sorts of advisers in the White House, it's hard to believe that everyone there ignored that line. I think it must have been a deliberate obfuscation of the law and the ruling. No wonder Samuel Alito in the audience was shaking his head that this wasn't true.

As I think about that line, I realized that, while I'd read quite a bit of commentary on the Court's decision, I hadn't seen anywhere that point about foreign corporations. No wonder, because it's not part of the decision so no one would have been talking about it. It had to be something that either Obama or some equally ignorant adviser in the White House thought of. It was too good for them to check and they figured that it would be a good demagogic line to insert into the speech. And to call for a law to be passed in Congress to reverse the Supreme Court's decision betrays another sort of ignorance. Although he made that same demand after the decision was issued, he should know better. The Court has ruled that laws restraining corporate interests from advertising violates the First Amendment. Given that interpretation, whether you agree or not, Congress cannot just pass a law to reverse that decision and get around the Supreme Court's ruling since the ruling was based on a constitutional objection. It's more demagoguery. And that is particularly inappropriate in an address to a joint session of Congress.

UPDATE: Heh, Dan Riehl wonders what Sandra Day O'Connor would have thought of the President bashing the Supreme Court to their face in front of a national audience while encouraging Democrats to stand and jeer at the Supreme Court.