FIRST ONE @ ONE FIRST

Whitehouse.gov Gets Obama’s Back in SCOTUS Spat

Posted in Supreme Conflict by Mike Sacks on February 1, 2010

Norm Eisen, Obama’s Special Counsel for Ethics and Government Reform, counters Alito’s “not true” regarding foreign corporate money in American elections:

We noted with interest reports that subsidiaries of foreign corporations from across the globe have launched a lobbying campaign in Washington to protect their newfound power to influence American elections under theCitizens United case.  About 160 of these U.S. subsidiaries of foreign-owned or controlled corporations are involved in a lobbying group trying to stop President Obama and Congress from enacting limits on their spending in political campaigns.  Worse still, the lobbyist leading the effort refused to disclose all the companies involved in the lobbying campaign.  But it appears that the group of companies has the potential to spend hundreds of millions of dollars to influence American elections. [...]

Some have argued that Citizens United will not increase foreign influence, but they are mistaken.  The four Justice dissent, authored by Justice Stevens, specifically pinpoints the fact that the majority opinion opens the door to foreign influence — see page 33 and page 75.   The majority openly acknowledged that foreign influence could pose a potential issue here, as did the lawyer for Citizens United. [...]

Others assert that subsidiaries of foreign companies already spend millions on independent expenditures and so the Citizens United decision will make no difference.  That misses the point.  The electioneering communications law that was struck down restricted corporate ads naming elected officials in the crucial 60 days before general elections and 30 days before primary elections.  Now those corporations can spend freely on those ads during the most critical periods in elections and the express message can be to vote for or against a named candidate.  That constitutes an enormous expansion of corporate power to influence elections.

Others claim existing law is sufficient to protect against foreign influence in our elections. That too is wrong.  Although the Federal Election Commission (FEC) restricts foreign nationals from spending or directing spending in American elections, it does not prohibit corporations in which foreign nationals are shareholders or hold significant sway or de facto control from making such expenditures.  For example, foreign-controlled corporations making independent expenditures cannot be relied upon to make decisions contrary to the political interests or preferences of their owners.  Before Citizens United, these problems did not exist at the federal level since the corporations themselves were limited in what they could do regardless of whose money or influence was behind them.  But now that restriction is no more.  Accordingly, because of these realities of how foreign control can operate, a stronger rule is needed to protect our domestic politics from foreign influence.

Sotomayor @ SNL

Posted in Non-justiciable by Mike Sacks on January 31, 2010

Faux-Soto’s got a point: “Just imagine if I mouthed off like that!”

SOTU: POTUS v. SCOTUS

Posted in Justicespotting by Mike Sacks on January 27, 2010

Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.

But the big news belongs to Justice Alito’s reaction to the President’s taking the Court to task for Citizens United. Here’s what Obama said:

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. 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.

Moments after I took this photo, Justice Alito shook his head and mouthedNo, that’s not true,” becoming the only non-impassive face in among the robed.  Watch here at 48:35.

NYT’s The Caucus blog agreed with Alito:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

Here’s more from Politifact.com.  So let’s not be so fast to call this Alito’s “Joe Wilson Moment.”  Last year Wilson had no proof to shout that Obama lied.  Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.

For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.

UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):

During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”

Also, Ben Smith at Politico has the stand-alone scene.

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