WSJ editorial demands Obama "get his facts right" in his Supreme Court criticism

››› ››› DIANNA PARKER

A January 29 Wall Street Journal editorial claimed that President Obama's remark during the State of the Union address about how he believed the Supreme Court's decision in Citizens United v. FEC could "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections" is "false." But, in fact, Obama's comments echo what four of the Supreme Court justices wrote in their opinion -- that 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.

WSJ: Obama's remark about decision's effect on "foreign entities" is "false"

WSJ: "The President's claim about 'foreign entities' bankrolling U.S. political campaigns" is "false." The Journal editorial quoted Obama as saying during his January 27 State of the Union address: "Last week, the Supreme Court reversed a century of law to open 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." From the editorial:

But could a graduate of Harvard Law School at least get his facts right? "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," Mr. Obama averred. "Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Let's unpack the falsehoods. The Court didn't reverse "a century of law," but merely two more recent precedents, one from 1990 and part of another from 2003. Austin v. Michigan Chamber of Commerce in 1990 had set the Court in a markedly new direction in limiting independent corporate campaign expenditures. This is the outlier case that needed to be overturned.

[...]

The President's claim about "foreign entities" bankrolling U.S. political campaigns is also false, since the Court did not overrule laws limiting such contributions. His use of "foreign" was a conscious attempt to inflame public and Congressional opinion against the Court. Coming from a President who fancies himself a citizen of the world, and who has gone so far as foreswear American exceptionalism, this leap into talk-show nativism is certainly illuminating. What will they think of that one in the cafes of Berlin?

Obama actually said: "I believe" the decision will "open the floodgates." During the speech, Obama actually 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. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Obama's interpretation echoes four Supreme Court justices who opined that the 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.

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.

FactCheck: "Obama couched his claim as something 'I believe,' making it a statement of opinion and not of fact." According to FactCheck.org, "[I]t's unclear whether the court's opinion will lead to allowing foreign-based corporations to buy campaign ads and engage in other electioneering activities. There is still a law barring foreign corporations from spending money in connection with U.S. elections (see 2 U.S.C. 441e(b)(3)), and that's a matter likely to be litigated further. The court's most recent decision explicitly didn't deal with that question. But strictly speaking, Obama couched his claim as something 'I believe,' making it a statement of opinion and not of fact. So whether his view turns out to be right remains to be seen."

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Wall Street Journal
Stories/Interests
Attacks on Barack Obama, 2010 State of the Union
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