Obama Was Wrong and Alito Was Right
January 28, 2010 - 6:21 PMDuring his first State of the Union speech on Wednesday, President Barack Obama incorrectly stated that foreign nationals and foreign entities can now contribute unlimited amounts of money to U.S. political campaigns because of a recent U.S. Supreme Court ruling lifting certain campaign finance restrictions.
During his first State of the Union speech on Wednesday, President Barack Obama incorrectly stated that foreign nationals and foreign entities can now contribute unlimited amounts of money to U.S. political campaigns because of a recent U.S. Supreme Court ruling lifting certain campaign finance restrictions.
This prompted an immediate reaction from Supreme Court Justice Samuel Alito, who, sitting directly in front of the president, shook his head and apparently mouthed the words “not true” when Obama made his remark.
The high court’s 5-4 ruling in a First Amendment case, Citizens United vs. Federal Elections Commission (FEC), lifted restrictions for companies, unions, and other organizations to make independent expenditures in political campaigns.
The court decision, however does not allow corporations to contribute directly to a campaign or coordinate expenditures with a campaign. Nor did the ruling lift existing law that blocks foreign contributions to political campaigns.
In his speech, Obama also claimed the court reversed 100 years of law when, in fact, it overturned a 1990 decision in Austin vs. Michigan Chamber of Commerce. Also, parts of the McCain-Feingold reform bill from 2002 that restricted independent political advertising in the closing days of an election were struck down.
“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,” Obama said.
“I don't think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities,” the president said. “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.”
Under the FEC regulation 11 CFR 110.20(i): “A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision-making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.”
Further, federal law, under 2 USC 441-Sec. 441e, also prohibits foreign donations.
In the majority opinion in the Citizens United case, Justice Anthony Kennedy wrote, “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.”
In a dissenting opinion, Justice John Paul Stevens wrote, “The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers.”
Responding to a reporter’s question Thursday, White House spokesman Bill Burton did not assert as firmly as the president that foreign corporations can contribute to U.S. political campaigns.
“Well, this issue is something that many have serious concerns about,” Burton said. “It’s something that Justice Ginsburg brought up in her oral arguments. It’s something that Justice Stevens wrote about in his dissent. It’s an issue that the court could have specifically addressed in its findings, but they didn’t.
“And the American people deserve the right to know that foreign corporations cannot interfere with American elections. So this is another one of the issues that the president is looking at in terms of campaign finance reform,” Burton added.
Former FEC Chairman Brad Smith believed the president’s comment was inappropriate.
“The President's swipe at the Supreme Court was a breach of decorum, and represents the worst of Washington politics – scapegoating ‘special interest’ bogeymen for all that ails Washington in an attempt to silence the diverse range of speakers in our democracy,” Smith, now chairman of the Center for Competitive Politics, said in a statement.
Even a posting on the liberal blog Huffington Post by Adam Winkler, a law professor at University of California-Los Angeles, partly took Alito’s side. Winkler’s piece was entitled, “Alito was rude (but right)” and further said, “Alito was right. The president was wrong about the Supreme Court decision.”