Campaign spending decision draws attention at State of the Union

By John O'Brien | Jan 28, 2010


WASHINGTON (Legal Newsline) - President Barack Obama went out of his way to criticize the U.S. Supreme Court Wednesday night, though some are writing that he was wrong in his argument.

Obama kept up his attack on the recent 5-4 decision in Citizens United v. Federal Elections Commission Wednesday night at his State of the Union address, drawing the disappointment of Justice Samuel Alito.

The Citizens United decision said corporations can use their treasury funds to support or oppose a candidate for a federal office through methods like advertising. Direct campaign contributions remained prohibited in the decision.

"The Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections," Obama said, with six justices in attendance.

"Well I don't think American elections should be bankrolled by America's most powerful interests, and worse, by foreign entities."

Alito shook his head and appeared to mouth the words "not true."

Others are agreeing with Alito, like Capital University Law School professor Bradley Smith.

"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," Smith wrote for the National Review.

"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."

Obama taught classes on constitutional law at the University of Chicago before being elected president. He said he will seek a legislative remedy to the decision.

The case involved Citizens United, a conservative group that was told by the Federal Elections Commission that it could not provide its documentary about then-Presidential candidate Hillary Clinton to cable stations.

"Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the nation's course; still others simply might suspend judgment on these points but decide to think more about issuesand candidates," Justice Anthony Kennedy wrote.

"Those choices and assessments, however, are not for the Government to make."

Kennedy was joined in the majority by Chief Justice John Roberts and justices Alito, Clarence Thomas and Antonin Scalia. Obama was quick to issue a statement decrying the ruling.

In ABC News' fact-check of the address, it includes an assessment of his statement on Citizens United.

"Politifact, the Pulitzer Prize-winning Web site from the St. Petersburg Times, did some research when Obama first made the claim in his weekly radio address last weekend and found that it was barely true," it says.

"Obama's statements on whether foreign companies can spend money in U.S. political campaigns 'overstated the ruling's immediate impact.'"

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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