Legal News

On Obama v. Alito, Who?s Right? Here?s Your Answer

By Ashby Jones

By now, it seems that everyone with a laptop has decided to weigh in on the Potus v. Scotus showdown at the SOTU. The consensus on the etiquette question, if one can be drawn, seems to be that President Obama has the right to criticize the Supreme Court, but that doing it in so public a forum was a bit out of line.

Fortunately for us, our own Jess Bravin dug into the question. Bravin’s even-handed answer? It just ain’t so simple. Writes Bravin:

What does Justice Samuel Alito think is “not true,” as he apparently mouthed, about President Barack Obama’s State of the Union assessment of the Supreme Court’s Jan. 21 decision striking down limits on corporate political expenditures?

Alito won’t say. He declines all comment, a court spokeswoman said. So we are left to parse the episode ourselves.

The president said that, "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. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities."

Perhaps Alito, who joined Justice Anthony Kennedy’s majority opinion along with three other conservative justices, disputed the president’s prediction that the court ruling would unleash the flood of "special-interest" money into elections. Or, maybe, Alito rejects the characterization of corporations as "special" interests, rather than equal members of the body politic along with individuals and advocacy groups. In any event, Obama’s assessment mirrored Justice John Paul Stevens’s dissent, which three other liberal justices joined, and states an opinion and prediction that can’t yet be proven true or false. Although federal law currently prohibits foreign nationals from attempting to influence American elections, the court’s opinion explicitly left open whether such measures are constitutional.

That leaves the one factual claim in Obama’s brief reference to the decision: the age of the law the court voided in Citizens United v. Federal Election Commission. Was it really a century old–or merely 63 years?

As in most legal questions, the answer is: It depends.

Congress first prohibited corporations and national banks from contributing to election campaigns in the 1907 Tillman Act. In 1947, the Taft-Hartley Act banned corporations and unions from making independent expenditures to elect candidates. The Citizens United ruling left intact the prohibition of direct contributions to candidates, but voided the ban on independent expenditures.

However, when states and the federal government first enacted campaign finance regulations at the dawn of the 20th century, lawmakers didn't clearly distinguish between direct contributions and independent expenditures.

"Until you have the modern media environment you don't really have the vehicles to do the expenditures," said David Stebenne, a legal and political historian at the Ohio State University. "When the Progressive Era statute is adopted there isn't radio or television."

For that reason, a 1912 Montana voter initiative that banned corporate contributions to state campaigns has been read to cover independent expenditures as well, according to Montana State Solicitor Anthony Johnstone. The Supreme Court’s ruling apparently voids the Montana restriction on independent expenditures, as well as similar measures in several other states.

The Taft-Hartley Act was prompted by Republican distress at union political spending on behalf of Democrats, Stebenne said.

Sen. Robert Taft (R., Ohio), a prominent opponent of the New Deal, felt that independent expenditures "violated the spirit of the law," Stebenne said. "At minimum, Taft wanted to close a loophole" that Sen. Benjamin Tillman (D., S.C.) hadn't anticipated when drafting his namesake act in 1907, he said.

In close calls on any legal question, of course, we’re used to Justice Kennedy casting the deciding vote. In this case, his view would particularly be welcome, as he–not Alito–wrote the decision that concernedObama. Unfortunately, Kennedy, like four other justices attending the State of the Union address, adopted the traditional stance of nonjudgmental silence when the president spoke.

Full post as published by Law Blog - WSJ.com on January 29, 2010 (boomark / email).