01.31.2010 0

Too Hot Not To Note: Obama ‘wrong’ on campaign finance

  • On: 02/04/2010 09:21:21
  • In: First Amendment

  • ALG Editor’s Note: In the following featured commentary from Politico, Orrin Hatch calls Obama’s attack on the Supreme Court and Campaign Finance wrong.


    Obama ‘wrong’ on campaign finance

    By Orrin Hatch

    During his State of the Union address last week, President Barack Obama attacked the Supreme Court — with the justices sitting right in front of him — for its decision that will allow American corporations and labor unions to speak during election season. Whether or not the criticism was appropriate, it should at least have been correct. Unfortunately, this time he was flat wrong.

    The Bipartisan Campaign Reform Act, or BCRA, bans election-related expenditures and communications by American corporations. Citizens United, a nonprofit corporation, wanted to produce and advertise a movie critical of a 2008 presidential candidate and sued to argue that BCRA’s speech restrictions violated the First Amendment. On Jan. 21, 2010, the Supreme Court agreed. “If the First Amendment has any force,” the court said, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

    That is what the case was about. Here is what it was not about: This case had nothing to do with contributions by anyone to political campaigns. The ban on such contributions by corporations, originally enacted in 1907 as the Tillman Act, remains untouched. This case had nothing to do with campaign-related spending of any kind by foreign individuals or corporations. The ban on such spending is similarly still in place.

    Federal law prohibits “foreign nationals” — such as foreign individuals, corporations or any “combination of persons” — from making either campaign contributions or other expenditures in connection with federal, state or local elections. Just in case some might remain confused, the Supreme Court actually said that its decision did “not reach the question whether government has a compelling interest in preventing foreign individuals or associations from influencing our nation’s political process.”

    This crystal clarity renders Obama’s State of the Union attack on the court completely baffling. He said that “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” and made possible the bankrolling of American elections by “foreign entities.” That claim brought Democrats to their feet and has inflamed the Democratic political base, but the claim is patently false.

    If the “century of law” that Obama mentioned refers to the 1907 Tillman Act, he is flat wrong. The case did not involve campaign contributions at all, and Citizens United did not challenge the Tillman Act. Neither Citizens United’s legal briefs nor Justice Anthony Kennedy’s majority opinion even mentions it. The only reference to the Tillman Act is in Justice John Paul Stevens’s dissenting opinion.

    Obama was also flat wrong to say that the Citizens United decision opened the floodgates for foreign corporations to “spend without limit” and literally to bankroll American elections. The case was brought by an American, not a foreign, corporation. The court only once cited the statute banning election-related contributions or expenditures by foreigners, and it did so precisely to emphasize that its decision had nothing whatsoever to do with that statute.

    It was unusual, and many think inappropriate, for a president to attack the Supreme Court in a State of the Union address. For him to do so about a recent decision, with the justices who rendered that decision in attendance, appears unprecedented.

    To many, Obama seemed to be using them as props to push a political issue, a tactic that demeans the court and degrades the State of the Union address. But at the very least, if he is going to give such a lecture, he should be right about the facts, the law and the decision. This time, he was wrong on all counts.

    Sen. Orrin Hatch (R-Utah) is a longtime member of the Senate Judiciary Committee and has chaired both the full committee and its subcommittee on the Constitution.

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