Memo to media: Obama's comments on Supreme Court decision in line with four justices' views

››› ››› ADAM SHAH

Two posts on National Review Online claimed that President Obama was untruthful when he said that the Supreme Court's decision in Citizens United v. FEC "open[ed] the floodgates for special interests - including foreign corporations - to spend without limit in our elections." In fact, four justices of the Supreme Court agreed that the logic of the decision "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans" to make certain election-related expenditures.

NRO: Obama's statements about Citizens United was demagogic, "false"

Ponnuru: "[P]resident claimed, falsely, that the Supreme Court had given a green light to foreign corporations to run political ads." In a post on NRO's The Corner blog, Ponnuru stated: "The most demagogic moment (so far!) came when the president claimed, falsely, that the Supreme Court had given a green light to foreign corporations to run political ads."

Bradley Smith on NRO: "President wrong on Citizens United case." From a post by law professor and former FEC commissioner 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.

Four justices: Logic of decision would appear to protect "multinational corporations controlled by foreigners"

Stevens: Logic of decision "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." From Justice John Paul Stevens opinion concurring in part and dissenting in part in Citizens United v. FEC - an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor (footnotes omitted):

If taken seriously, our colleagues' assumption that the identity of a speaker has no relevance to the Government's ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by "Tokyo Rose" during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could " 'enhance the relative voice' " of some ( i.e. , humans) over others ( i.e. , nonhumans). Ante , at 33 (quoting Buckley , 424 U. S., at 49). Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.

Stevens: Decision will "cripple" government's ability to prevent "corporate domination of the electoral process." Stevens also wrote:

The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.

Smith himself reportedly said decision could open door to foreign corporate cash. David Weigel reported in The Washington Independent:

Former FEC Chairman Bradley Smith tells me that, indeed, the decision seems to let foreign corporations spend whatever they like, as long as they find a loophole that protect them from the ban on election spending by foreign citizens.

"To the extent that there may be some foreign corporations that don't fall under the category of foreign nationals, that might be something Congress can deal with," said Smith. "I think the court would probably uphold the constitutionality of that. I can't say for certain that they would."

Other experts say Citizens United decision might lead to campaign money from foreign corporations

Several experts argue that decision opens door to campaign money from U.S. subsidiaries of foreign corporations. Politico reported: " 'It is a plausible inference from the court's opinion that [foreign] money can't be restricted,' said Michael Dorf, a Cornell law professor who has backed giving foreigners the right to contribute to U.S. campaigns. 'For me, that's not such a terrible thing.' " Campaign finance reform advocate Fred Wertheimer stated: "Under the Supreme Court decision, foreign countries, such as China (and its Sovereign Wealth Fund, the China Investment Corporation), foreign corporations and foreign individuals are now able to make campaign expenditures to directly support or oppose federal candidates, so long as these expenditures are made through foreign-controlled domestic corporations." A post on the Center for Public Integrity website reported:

Some legal observers fear the ruling would open up the floodgates for any corporation operating in the United States, no matter who owns them. J. Gerald Hebert, executive director and director of litigation at the non-partisan Campaign Legal Center, told the Center for Public Integrity that the existing prohibition on foreign involvement does not refer to foreign controlled domestic corporations. "With the corporate campaign expenditure ban now being declared unconstitutional, domestic corporations controlled by foreign governments or other foreign entities are free to spend money to elect or defeat federal candidates," he believes.

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