From the president’s State of the Union address last night, one whopper in particular is getting a lot of attention:
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. They should be decided by the American people.
This bit has gotten a lot of attention because Justice Alito’s silent but barely visible objection, shaking his head and mouthing the words “not true”.
Alito is right. First, Citizens United v. FEC reversed Austin v. Michigan Chamber of Commerce, which was decided in 1990. For those without a calculator handy, that was 20 years ago. So Citizen United reversed two decades of law, not a century. (Furthermore, Austin itself overruled a series of cases going back to 1936 — over 50 years of precedent.)
Second, the decision did not open the door for foreign corporations to spend in American elections. The decision invalidated 2 USC §441b, which forbids corporate spending in elections (see page 50 of the opinion), but the decision said nothing about §441e, which forbids foreign spending. (Via the Corner.)
Third, not only was §441e not at issue in Citizens United, but the decision expressly disclaims any conclusion regarding foreign contributions (pp. 46-47):
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. . . Section 441b . . . would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.
In short, President Obama’s statement is completely false, which, as a scholar of constitutional law, he must be perfectly aware.
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