I'm sorry, I'm having a really hard time getting worked up about Alito's "breach of protocol". It's totally true that justices usually sit there like a stone. On the other hand, president's don't usually call out said justices for being too wrapped up in that dumb first amendment--much less call them out with statements that seem to be unequivocally false.
Using the state of the union as an opportunity to call out supreme court justices, who you expect will have to sit there impassively while you rake them over the coals is, well, kind of a jerk move. And I'm pretty sure it's not exactly traditional presidential protocol. It certainly doesn't show "all due deference" to the separation of powers, especially when it's followed by a pledge to pass more of the kinds of laws they've just ruled unconstitutional.
I'm calling this one a draw.
Copyright © 2010 by The Atlantic Monthly Group. All rights reserved.
They won't be back next year. Maybe a couple of the lefties but Alito and Roberts will find urgent tasks that need doing next year.
No, they won't find "urgent tasks". They're professionals, and they'll do their job. That said, these people are the highest judges in the land. I'm sure they have some way of making their displeasure known, and it doesn't involve missing speeches out of pique.
You can call it a draw, but for me, the deciding factor is that one of the two planned this out in advance, with feedback from multiple advisers and with the clear intent of making a public statement, while the other was taken by surprise.
Why would Alito be surprised? Is he that stupid? Does he not know history? FDR once spent a fourth of one of his SOTU addresses chastising the Supreme Court.
And FDR lost that battle.
Megan, you didn't supply a link. Is there really someone getting worked up over Alito's "breach of protocol", and saying you should too?
A bunch of left leaning bloggers. What Alito did isn't a big deal at all.
And neither is what Obama did a breach of separation of powers, or of protocol, nor even was it a "jerk move" (unless you want it to be). And there would be absolutely nothing at all wrong with Congress passing scores more "of the kinds of laws [SCOTUS has] just ruled unconstitutional."
True, it's not like members of congress take an oath to defend and uphold the Constitution of the United States, or anything.
They do indeed -- the Constitution, not the Supreme Court. Those are not synonymous. They do not, however, take an oath to cede their legislative prerogatives to whatever message proponents of particular court decisions say is the message of the impulse behind those decisions ought to send. The legislative remains a coequal branch of government and can attempt to work around the letter of whatever limits court decisions place on previous legislation. This is definitionally part of their duty in representing the interests of their constituents. There are things they could do to break their oaths to the Constitution, but those would involve suggesting to the public that particular court decisions do not enjoy their full support as the law of the land, regardless of their opinion of whether those decisions were right. Testing the boundaries of the court's actions and willingness to act even further after a sweeping, activist decision such as this is quintessentially in the legislature's purview.
First of all, nobody is insisting you get worked up. That is a straw man you invented. Secondly, you choose a right wing publication to insist that Obama's remark is "unequivocally false", when their may be some truth to it. And finally, he did not "call out" the Supreme Court. He asked Congress to address what he considers a legal loophole created by the Supreme Court. Setting legislative priorities is a legitimate use of the SOTU.
Apparently your respect for that "dumb first amendment" does not extend to the Commander in Chief, who is not allowed to have an opinion about Citizens United. You also are repeating a Republican trope that Presidents do not comment on Supreme Court rulings, which is clearly wrong. [You need only think of Roe v. Wade.]
Perhaps if you had more respect for the President's office, you would be in a better position to judge whether he showed due respect to the SCOTUS.
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http://www.politifact.com/truth-o-meter/statements/2010/jan/27/barack-obama/obama-says-supreme-court-ruling-allows-foreign-com/
The Washington Post is a "right wing publication"?
Yes. It is.
"So, to re-cap: The Post today has two former Bush officials, one former Reagan official, two right-wing politicians, a Fox News neocon, the CEO of America's largest oil and gas producer, a defender of the right-wing Honduran military coup leaders, and one liberal columnist."
http://www.salon.com/opinion/greenwald/2009/11/06/washington_post/index.html
KR,
Are you going to tell me that The New York Times is a right wing rag, and that Linda Greenhouse is a right wing writer?
It's not particularly wise to just point out that a source is generally biased without grappling with the substance KR.
WaPo's oped page is right wing, but Linda Greenhouse isn't. Neither is the generally left wing Dahlia Lithwick and any number of people who didn't agree with Greenwnald.
I do question Greenhouse's use of "Post-partisan" in a column's name as it's highly unlikely she'll be on everything she writes though. Smacks a bit of "fair and balanced."
It's Op-Ed page is massively right wing, and they drove out Daniel Froomkin, quite likely for disagreeing with the neocons too frequently.
Greenwald went overboard in his criticism of Alito, and the President didn't break protocol, but generally the liberal bloggers out there I've seen so far have been giving Alito a pass on this, so it's not really all that controversial.
On the other hand, Greenwald did give the citizen's united case a lot of thought:
http://www.salon.com/news/opinion/glenn_greenwald/2010/01/22/citizens_united/index.html
and is not as reflexive in attacking as his normal posts are.
Jorah,
Megan is calling Obama's remarks "unequivocally false" based on a single cite from a neo-conservative newspaper. My point was not to dismiss the Washington Post, but to point out the weakness of Megan's assertion. Perhaps Linda Greenhouse really is the foremost constitutional scholar in the nation, it still would not justify making such an unqualified statement of fact without further investigation.
I'd chalk it down to poor writing because of the blog format.
"seems to be unequivocally false" is terrible sentence construction as Plainview pointed out below, especially if you believe in clarity in writing.
Also, Megan makes assertions of this nature all the time. I think most of us have just gotten used to it.
He's allowed to have an opinion all he likes. He's allowed to express it, too. What's not quite so fine by me is lying, rather flagrantly, about it. It'd be like a Republican bashing Roe for making abortion mandatory - the correct response is a simple "WTF?"
Except, of course, for the fact that he didn't lie.
Obama: "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."
Kennedy, speaking for the majority of the Supreme Court: "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. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominantly by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process."
It looks to me like the Supreme Court specifically refrained from including foreigners in the decision, and Obama is saying that they did. What would you call that?
Have you been under a rock or never on Huffington post? To say that it is a straw man Megan invented is disingenuous or willfully ignorant. Secondly, her source is largely irrelevant and attacking it is a weak argument. Obama's statement can be judged unequivocally false b/c it was a statement of fact, not interpretation. Did the Supreme Court overturn 100 years of precedent? Yes or no? I've seen several commentators representing the political spectrum weigh in with a resounding no (and yes, unequivocally).
Bringing up FDR is laughable. He tried to add a few justices if you remember. A better argument would be to try and establish how calling a SCOTUS ruling ridiculous (basically what Obama did) is standard procedure at SOTU addresses, which would actually address Megan's point. Pointing out that it's been done once is inventing a straw man of your own.
As has already been pointed out, many (if not most) liberal blogs have been defending Alito. Hardly anyone is making a big deal. So yes, it is a straw man.
Second, the "hundred year precedent" was cited by Justice Stevens in his dissent.
Third, I never mentioned FDR.
Fourth, some commentators "weigh in with a resounding no". Others disagree. You do know what the word "unequivocally" means, right?
It's not a straw man she invented if it's on Huffington Post and other major sources right after it happened. It was a political moment, and was made into a highly charged one after the fact by those on the right AND left. Further, I could just as easily have said many (if not most) liberal bloggers took issue with Alito. It doesn't further your argument. Maybe this is an issue of who the criticism is addressed to. If we're talking about big media (network and cable news, media aggregators, major media commentators), then it most definitely is not a straw man. I have a feeling you're reading some more esoteric blogs that took a different and possibly more interesting angle. In which case, her post wasn't directed at them or you. Actually, I have a feeling that her post was directed at Glen Greenwald at Salon who wrote the following in his post on the "scandal":
"...the behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words 'not true' when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol..."
As for the unequivocal issue: did they or didn't they reverse a "century of law that opens the floodgates for special interests--including foreign corporations--to spend without limit in our elections?" Most of the authorities I've read say no, but no matter. If you agree with them tentatively and cite one of them, then you can hold the opinion that it is or seems to be unequivocally false. In other words, you can believe it to be clearly and unambiguously false (and no, I didn't have to get my dictionary for that one).
My other point (which you didn't address) is that attacking her source is a weak argument. She used a large, big city daily as her source. If someone on the right made the same argument b/c of an author's use of the New York Times without addressing the substance of the argument, it would be equally weak.
As for the FDR thing, my apologies. Must have been skimming quickly, and picked something up later in the thread by someone else.
From the right wing of the New York Times (not Linda G.):
~~~
"The president appeared to have mischaracterized the Supreme Court’s decision to overturn restrictions on corporate-paid political commercials by suggesting that the decision invited political advertisements by foreign companies, too.
"The majority opinion in the case, Citizens United v. the Federal Election Commission, specifically disavowed a verdict on the question."
~~~
Which means existing legislation on that question stays in effect.
Duh. You'd think a professor of constitutional law would know that.
Either he doesn't know much about law, or he's engaging there in a little partisan populist demagoguery.
Which is fine for a politician to do in a partisan speech -- and it's also fine for him to be called on it.
BTW, who knew that Obama was so much against the corrupting power of unions? The AFL-CIO was lobbyhing hard get this result, partners with the Chamber of Commerce, and had filed briefs for the winning side.
If he was just a little more candid, Obama would've damned the unions winning here by name, right?
Isn't "seem to be" and "unequivocally" a contradiction in terms?
Typical qualifier in case there's evidence Obama's point of view is actually defensible. Eh.
Personally, I found the whole thing refreshing.
The idea that the Supreme Court isn't a political institution is silly on its face. Better to end that charade and move to a reality-based world.
Of course the Supremes bring their politics to the bench! It's unthinkable that anyone could get so far along in their judicial career without being a political animal. Unless human nature can be changed, that's how it will be and IMO, there's no crime in it. Yet another reason why there are three branches and not one.
Not recognizing and accepting the influence on political thinking and motivations on the bench is both naive and dangerous.
I agree. This entire controversy is a tempest in a bottle. It is merely an excuse for right-wingers to criticize Obama.
Why yes, partisans will look for excuses to act partisan.
If you make it okay, people will start acting like it's okay. I much prefer having a strong norm in place saying that it's not okay, so we get law interpreted at least mostly impartially. Yeah, they have opinions - hell, that's what we pay them for. But they should be based on law, not sentiment, as best we can manage.
"they'll do their job."
Who says it's their job. We had a hundred years of presidents not delivering SOTU reports to congress in person. If the president doesn't have to go the justices don't either. I think it would be more fitting to back go to the old way. The current spectacle seems more fitting to a monarchy then a republic.
Yeah, if Obama starts issuing written updates on the state of the union, the Supremes can kick back and watch basketball at home that night. But it's the second-biggest party in American politics, they pretty much have to be there.
No kidding. He's the president - not the king.
In my opinion, criticizing the justices publicly, with them sitting right there, shows a lack of class.
But, what I found most disturbing is that Obama had his facts wrong, and I think he just didn't understand the decision, not that he intended to lie. He was just repeating what he has heard other liberals saying about the decision, something that I have read in a few places, and have heard other politicians and TV talking heads repeat. I would expect the president of the US to have better fact checkers before he gives a speech and then says something so blatantly unfactual.
Except the fact checkers, while noting that Obama may be over-stating his claim, agree that his concerns are legitimate. And I hardly think that he was "repeating what he heard." He taught Constitutional Law, remember?
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http://www.politifact.com/truth-o-meter/statements/2010/jan/27/barack-obama/obama-says-supreme-court-ruling-allows-foreign-com/
http://www.publicintegrity.org/articles/entry/1913/
Well, if he taught constitutional law, then his misstatement is even more egregious, and makes it even more likely he was trying to mislead the audience.
Obama's statement was: "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."
That "century of law" begins with the Tillman Act of 1907, and ends with six opinions from the last quarter-century which the majority overruled in reaching its decision. In his dissent, Stevens notes that the Supreme Court usually does not take it upon itself to answer questions not presented by the litigants, who themselves argued the issue at the Court's invitation. Usually, that sort of thing is disparagingly called "judicial activism," but John Roberts spends an entire concurrence talking about how right it must be in just this instance, to overturn so much precedent without the litigants even bringing it up on appeal.
We may have grown accustomed to a President who needed things explained to him in very small words, but Obama went to the same law school that the Chief Justice did. He doesn't need to repeat what he is told about a judicial opinion concerning the First Amendment, and I really don't see where he misunderstood what happened in Citizens United.
The Tillman Act is still in force, and corporations still can't donate directly to political campaigns. So apparently the words weren't small enough for him to understand that.
++good: In addition to what Yancey pointed out, the lawsuit in question had no bearing whatsoever on "foreign corporations". They are covered by a different section of statute, which was not challenged here. Nor does the scope of the opinion even suggest it would apply to foreign corporations. In sum, it is entirely and embarrasingly wrong to state what Obama did.
Seriously, if I'd said that in a 2L Con Law class, I would've been laughed at by a room full of people who knew better. I can understand, maybe, if this was an off-the-cuff comment, but literally thousands of hours went into researching, writing, and reviewing that speech. It was carefully planned and spoken in full knowledge that it was completely false.
If Alito had shouted "You lie!," that would have been a breach of protocol.
Mouthing something silently? Come on, I bet there were Congressmen commenting on some page's body at the same time.
On the other hand, president's don't usually call out said justices for being too wrapped up in that dumb first amendment--much less call them out with statements that seem to be unequivocally false.
Megan is sometimes incredibly unprofessional. "Unequivocally false"? So Megan picks one of the few columnists that believes there is no breach of precedent (and so obvious so that it's not even up for discussion) and that's enough to declare all other contrary opinions regarding precedent as unequivocally false?
Shoddy.
Exactly. To Jorah's point, I was not disparaging The Washington Post so much as noting that Megan is making a statement of unequivocal fact based on a single cite from a known partisan source.
No, but one can actually read the opinion and Obama's remarks last night and know for certain his statement/criticism was factually incorrect. Even Linda Greenhouse, not a fan of Alito or the decision, could see this plainly.
Which Obama statement is factually incorrect "for certain"?
I am going to the quote the statement in question:
"it's time to put strict limits on the contributions that lobbyists give to candidates for federal office. 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. Well I don't think American elections should be bankrolled by America's most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."
I think the part that could be factually incorrect here is "reversed a century of law." This decision could lead them to actually reverse a century of law at a later date however.
The second thing I see here is about foreign corporations, but his sentence construction here has more qualifiers. Though legally foreign corporations still can't electioneer after this decision, their money could still make their way into elections via less direct means. "Open the floodgates" is kind of vague here and could mean indirectly and not directly. I think he read JP Stevens' dissent or a speechwriter did when this was written.
Nimed,
The decision did not "reverse a century of law". A number of people have claimed publicly this decision now allows corporations to give unlimited monies to politicians- the decision last week had nothing to do with this. I think this is what Obama thought.
And as for foreign money coming into politics, this already happens through various means. The present decision does nothing to make this easier, but that is a matter of opinion.
Yes, I am certain of it, but he isn't alone, a lot of people have been making the exact same wrong statement he did, so I think that is where he picked it up.
Yancey, you contradicted yourself. If "it is a matter of opinion", then Obama is not "unequivocally false".
> call them out with statements that seem to be unequivocally false.
What, exactly, did Obama say that was unequivocally false?
It doesn't have to be a "foreign corporation" to be a vehicle for foreigners to spend freely in US elections.
Suppose Saudi Arabia buys 40% of some US company ... then can they have that company spend as much in US elections as they want?
It's not the end of the world, but it's a peculiar scenario.
Unequivocally false statements? I know of two:
The section at issue in Citizens United is 2 USC 441a.
A separate section, 2 USC 441e reads, in part:
It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
...
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434 (f)(3) of this title)...
"foreign national" is defined to include a foreign corporation (click on the link over there to find 22 USC 611(b); I'm not sending this comment to never ending moderation).
FEC regs forbid the "buy a stake in the US corporation and cause it to buy ad time" situation. The prohibition is still in place.
In addition, the statement about "overturning a century-old law" or some such thing is false. The oldest decision overturned (Austin) is from 1990; the Tillman Act (from 1907, I think) is untouched. Corporate contributions directly to campaigns are still forbidden.
So yes, unequivocally false, and Mr. Con Law Professor President should know better. It's frankly astonishingly sloppy and smacks of him picking up talking points from bloggers.
"The prohibition [against foriegn corporations/states] is still in place."
Really?
“There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers.”
I think the sweeping nature of the Court's ruling rather puts your assertion in question. All that waits is the challenge.
The decision, unlike the Court's earlier usurpation of Congressional power in Bush v. Gore, is not limited by any sui generis clause. You should expect to hear it repeated endlessly.
pbh
When the SC actually decides that, then Obama's statement will be correct. But they won't.
But until they do, it is not settled law, as you have conceded.
There's a statute in place forbidding foreign influence. SCOTUS may reverse it, but until they do, there's no need for Congress to take any action whatsoever.
The question of whether or not foreign corporations can use their money in American elections is part of this debate. Stevens dissent, joined by three other justices made it clear that those laws are now in question. So if Obama doesn't understand what the court has done that may be because he agrees with the four dissenters. Perhaps you should explain it to them.
And while the decision does not allow corporations to contribute directly to politicians, it does allow them to spend money directly from their treasuries on ads supporting or attacking them by name. That wasn't true before. They had to use PACS which raise funds from people who give it voluntarily. Now they can use the shareholders money or in the case of unions, members dues. These are among the things (along with some intellectually dishonest arguments) that have the people who dislike this decision upset.
So when the President said, "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" he was functionally correct. Corporations may not donate directly to candidates. The Tillman act forbids it. But they may pay for their own advertising and the overall effect is to aid one candidate and harm another.
"statements that seem to be unequivocally false"
The Court declared:
“There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers.”
Article 1, Section 5 of the Constitution states:
“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”
As I have pointed out before, the Court committed misprision in this decision. Congress has the power to set the rules of the road for elections to its body, including the source of campaign funds. The Court's assertion that Corporate speech in the political arena is somehow innocent of direct contribution is duplicitous, disengenous and hopelessly naive.
President Obama is correct in asserting that the Court has opened the door for foreign based corporations and governments to enter American politics. They only need to have leverage over an American corporation.
The decision is a Constitutional travesty and Congress should ignore it.
pbh
President Obama is correct in asserting that the Court has opened the door for foreign based corporations and governments to enter American politics.
Actually, the president and his campaign opened the door by disabling all security checks for credit card donations, thereby throwing the door wide open for illegal and foreign contributions.
Kind of amusing to see his apologists asserting the opposite.
Congress can't pass a law that violates the First Amendment, even if it is acting pursuant to one of its enumerated powers. Under your logic, Congress could pass a law under the Commerce Clause even if it discriminated against black people.
Your reference to Art. I, Sec. 5 is nonsense. It has nothing to do with free speech.
Congress doesn't have the right to tell anyone to shut up about any election, regardless of whose election it is. Citizens United wasn't about Hillary Clinton's qualifications or the certification of her election, it was about whether or not a group of citizens could make a movie criticizing Hillary Clinton. Nothing empowering Congress to judge her qualifications can possibly override their right to tell the world they hate her.
JUSTICE ALITO: Well, Mr. Olson, do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?
MR. OLSON: I don't think so, Justice Alito, and certainly there is no record to suggest that there is any kind of problem based upon that. And I come back to the language of the First Amendment: "Congress shall make no law." Now, what this Court has repeatedly said is that there may be laws inhibiting speech if there is a compelling governmental interest and a narrowly tailored remedy. But there is no justification for this.
--------------------------------
Sorry, but the Alito apologists are the ones being disingenuous here. There is no settled law regarding whether a U.S. corporation with foreign ownership can make direct campaign contributions. And there will not be until either the SCOTUS rules again or the Legislature takes action. Therefore, Obama was 100% within his rights to ask the legislature to address this legitimate concern.
There is no settled law regarding whether a U.S. corporation with foreign ownership can make direct campaign contributions.
There is settled law that no corporation may make direct campaign contributions. 2 USC 441b and 441e cover domestic and foreign, respectively.
Citizens United dealt with electioneering communications--a different animal than direct contributions--by domestic corporations. 441e still prohibits foreign influence in that decision.
The question here is what constitutes a foreign corporation. Is a US chartered company with a foreign parent covered by US 441e? Some say yes, others say no. The dissenters appear to think it's an open question while the majority claims it isn't. I don't know, but your certainty in the face of the questions I've encountered about this is unconvincing.
It would be nice to trace all those Obama contributions from Mickey Mouse and the other patriots who donated to his campaign when the security controls on his web site were disabled.
The key is "indirectly." If a foreign corporation uses its power to cause a domestic corporation to influence elections, that sure looks like indirect spending to me. I believe the FEC has addressed this in its regs already.
>> I believe the FEC has addressed this in its regs already.
Regs which may now be unconstitutional. Hence the controversy.
If the Supreme Court holds that Congress may not make a law abridging the freedom of speech of any party whatsoever, including corporations, then surely the ownership or direction of these corporations is (legally) of no consequence - cannot be of any consequence.