During the oral argument in Citizens United v. Federal Election Commission, Seth Waxman, the former Solicitor General of the United States who was representing John McCain and other campaign finance law sponsors, asserted that the plaintiffs’ position was contrary to the thrust of more than 50 years of Supreme Court precedent. Justice Alito said that this argument — or “sound bite,” as he characterized it — is “perplexing.” He noted that the issue before the Court was merely the validity of two precedents that don’t date back that far.
Justice Alito’s concern turned out to be prescient when, in his State of the Union address, President Obama (Mr. Sound Bite, himself) claimed that the Supreme Court’s decision in Citizens United “reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Even Waxman had not made this claim at oral argument, although Solicitor General Kagan and Justice Sotomayor threw the number 100 around in this connection.
Last night, Justice Alito reportedly responded to Obama’s sound bite by quietly saying something like “that’s not true.” Alito was right at least two levels. First, as noted above and as Linda Greenhouse acknowledges, Citizens United did not disturb any principles that date back 100 years.
Second, as Shannen Coffin points out, the decision in Citizens United is quite clear that it does not address whether the government can regulate improper foreign influence over our electoral process. Writing for the majority, Justice Kennedy stated: “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.” [note: Bradley Smith has more on this issue].
Presidents should feel free to criticize important Supreme Court decisions with which they disagree. It’s bad form, however, to do so at an event where Justices are in attendance by invitation. And it is unconscionable to do so by blatantly misrepresenting what the Court has said.
It also seems like bad politics. It’s understandable that Obama wants to pose as a populist, although he’s not terribly convincing in the role. But the Supreme Court isn’t a bank or an insurance company; it’s a reasonably respected institution, as branches of government go. Moreover, Obama and his writers must have known they would be called on his misrepresentation of the Citizens United decision. Nor is it likely that the Court’s swing voter, Justice Kennedy (author of the decision) was amused.
I’m pleased that Justice Alito did not wait for bloggers and media fact checkers to discover that Obama’s statements about the decision are false. Now the president has a reason, other than the apparently insufficient one of good manners, not to attack the Supreme Court when its Justices are in the audience as invited guests.
UPDATE: A friend adds: “One additional point one might make in response to Obama’s sweeping demagoguery is that the Court did not authorize direct corporate contributions to candidates. Thus, it is further untrue that the Court allowed corporate spending ‘without limit.’”
JOE adds the videotape:
PAUL adds: Notice that Attorney General Holder, who is seated one or two people away from the Justices, joins in the standing ovation the president’s attack provoked. Classy.
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