Correcting Obama On The Recent Supreme Court Decision

I assume that Obama’s comments about the recent Supreme Court ruling were meant to be intentionally misleading and/or inaccurate in order to score political points. After all, Obama is a constitutional lawyer who knows better.

Nevertheless, to kill some of the rumors going around, here are some further clarifications on why Alito was correct in his statement that what Obama said was simply ‘not true’:

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Or another explanation here:

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 demagoguery of the worst kind.

More can be found at the articles here and here. If you read anything on this Supreme Court decision, read Glenn Greenwald, writing in Salon.com, here and here.

87 Responses to “Correcting Obama On The Recent Supreme Court Decision”


  • So, I guess you’re going to claim that you didn’t have any idea that a lot of “American” corporations are owned by foreign nationals? Like Anheuser-Busch (owned by a Belgian company, InBev); the Tata Group of India (recently reopened the Pierre Hotel in Manhattan and makes Eight O’Clock Coffee); American Eurocopter (who just built a second plant in Columbus, Miss), Haier (the Chinese appliance maker with headquarters in Manhattan and a refrigerator plant in South Carolina); and Nestlé, the Swiss food company, which employs hundreds to make Nesquik and Coffee-Mate in Indiana.

    5.3 million people in the United States (3.5 percent of all workers) work for foreign-owned companies. (Here’s a look from a few years ago, on the amount of foreign investment in the United States.) And while their owners may not be able to throw money at a candidate, every one of the American offices is able to.

    Most people are smart enough to see where that might be an issue. You aren’t?

    Think about this decision for a while. Corporations are people with First Amendment rights? Well, shouldn’t they also have Second Amendment rights, too? Or, for that matter, shouldn’t they be able to run for office?

  • I am fully aware of that…but my point is that none of that was in question in the Supreme Court decision.

    This is how Glenn Greenwald, writing in Salon.com explains it:

    More important, I want to note one extremely bizarre aspect to the discussion yesterday. Most commenters (though not all) grounded their opposition to the Supreme Court’s ruling in two rather absolute principles: (1) corporations are not “persons” and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause. What makes those arguments so bizarre is that none of the 9 Justices — including the 4 dissenting Justices — argued either of those propositions or believe them. To the contrary, all 9 Justices — including the 4 in dissent — agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

    In other words, the problems with foreign companies being based in the United States was a problem before the Supreme Court ruling and after…nothing really changed on that aspect. It was illegal before, it is illegal now. Read more on that here and here.

  • Just to clarify the second passage, the Court did not rule 2 U. S. C. §441e unconstitutional. It was referenced in the opinion specifically to exclude it from discussion:

    “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”

    Also, corporations have had first amendment rights for some time and specifically related to political speech. This ruling overturns Austin, but there was plenty of precedent prior to that for the ruling. Indeed, the Court is very critical of Austin:

    “The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned.”

  • The whole argument is bizarre. Corporations are not people. People are people. The individuals in a corporation have every right afforded to a citizen. The corporation does not, and it’s a legal fiction that it should. The whole thing stems from the 1886 Santa Clara County v. Southern Pacific Railroad, which included the following statement:

    “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

    Interestingly, this was not a determination by one of the Justices, but part of the headnote, written by court reporter J.C. Bancroft Davis. However, corporations took this statement and conflated it with information from several other court decisions over the years, leading to a legal determination that corporations now have legal status as persons, to include free speech.

    Or to put it as another lawyer once did:
    Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. (Abraham Lincoln)

  • I propose a new blogging rule:

    “If someone writes a blog post meant to disprove what someone else said, then the blogger should be required to transcribe, exactly and fully, what that person said before beginning their argument. (Especially if the blogger’s criticism relies heavily on legalese and word parsing.”)

    Otherwise, I’m just too lazy to play this game.

  • Nameless Cynic,

    What would you say to this response to your claim that corporations are not people and therefore do not deserve free speech rights:

    I should mention that it’s irrelevant that the First Amendment specifically protects the freedom of “the press.” It does not specifically mention “press” entities organized as corporations. So if you believe that freedom of speech doesn’t apply to corporations because they “aren’t people,” the same point applies to freedom of the press. As co-blogger Eugene explains, “freedom of the press” is not a constitutional right for a particular group of people or organizations. Rather it is a right to engage in a certain class of activities (such as publishing newspapers and pamphlets), whether the person doing so is a professional member of the media or not.

    The full post can be found here.

    LaurenceB,

    Good point. Ill try to post more background next time.

  • Hey HP,
    That was not meant necessarily as a criticism of what you wrote. It’s just a general observation on a post that includes snippets of two other posts, all discussing a quote without actually, you know, quoting it. It’s a blogosphere-wide thing.

  • LaurenceB,

    I agree. Sometimes I forgot that not everybody reads the same articles and blogs as I do. This is what this whole blog is about:

    Obama, during the State Of The Union address, said

    “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

  • Well, if you want to focus with laser-like intensity on the one point and ignore that thing we call “the big picture,” that’s great. Just say “I want to argue niggling details, and not the over-arching concept that giving more power to corporatons is bad.”

    Essentially, the underlying argument here is that “this ruling is just fine – no need to legislate against it.” But you should feel free to think that corporations aren’t going to subvert this decision to build up their own power. Like they did a tossed-off header from a court clerk that the justices’ wanted full deniability for later.

    Should corporations have “freedom of the press.” Well, considering that few people can muster the required infrastructure to set up a media outlet, yes. But then again, no. The individuals in the corporation should be allowed to say what they wish (as long as they’re held accountable for said words – you know, like Rush Limbaugh really isn’t, in any larger sense). And those same individuals, working in concert, should have the power called “freedom of the press.”

    The purpose of that particular liberty was to prevent authorities from crushing printing presses that argued against them, as King George had a habit of doing. It was not intended to give Rupert Murdoch unlimited power to spin facts and lie.

    A corporation is a collection of entities. Each of those individuals has the full liberties entitled a citizen. ExxonMobil does not.

    Or, to quote a famous non-lawyer (although, by the standards of the day, he easily could have been),

    “I hope we shall… 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.” –Thomas Jefferson (1816)

  • I would think that “the over-arching concept” is the question of: Is the ruling constitutional. It is that argument I was addressing.

    Whether it works or not is a secondary concern, at best. Either way, I am not a lawyer and could only provide a limited response. But I did find this response and this response quite informative. Even Eliot Spitzer defended the decision, see here. It clearly shows that the decision was far less radical than people assume.

  • The philosophical question “Is it constitutional?” has a few interesting sidebars. For example, do you mean “is it in the spirit of the Constitution?” vs “is it what the framers intended?”

    The teabaggers, for instance, are trying to set themselves up as “Constitutional Originalists” – when, in fact, faced with the British (and, for that matter, Dutch) East India Companies would in no way prepare our Founding Fathers for AOL/TimeWarner, ExxonMobil, and the vast array of parent companies, holding companies, shell corporations and the rest.

    Nor did they have anything resembling the Internet, international telecommunications and transportation options we have. People most often lived and died in a twenty-mile area – the fact that most of the Constitutional Congress didn’t was a factor of them being the wealthiest folks around.

    So trying to wrap this argument around the Constitution as written is just a little disengenuous. Was it, however, in the spirit of what the framers intended? Go back and check those two quotes I dropped, and you tell me.

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