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Friday, January 29, 2010

Thoughts on Barack Obama's Attack on the Court

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Following the obligatory full disclosure that the National Center for Public Policy Research was not exactly neutral in the case of Citizens United v. FEC when it went before the Supreme Court (we supported and signed on to an amicus brief in the case spearheaded by the Free Speech Coalition last year), I want to slightly defend President Obama vis-a-vis his erroneous remarks about the case during the State of the Union address.

Yes, Justice Samuel Alito was right (Bradley Smith, a campaign finance expert and law professor, proves it succinctly here), and President Obama wrong, on the facts.

But in regards to those who are calling the President a liar on the matter: I doubt it because I doubt the President knew the facts of the case before he spoke. Unlike our last Democratic President, Barack Obama has never been particularly interested in issues, and his speechwriters draw heavily from left-wing sources without fact-checking (as when they blindly trusted Slate's Timothy Noah when drafting Obama's health care speech to the joint session of Congress).

The left-wing position on Citizens United, as Democracy 21 put it, is that a loophole now exists in the law because, although foreign corporations are banned from influencing elections, "there is no statutory prohibition against foreign-controlled domestic corporations from making expenditures to influence federal elections."

But the absence of a statute is not the fault of the Supreme Court, and President Obama and the left is wrong to criticize the Court for it. Congress had plenty of time to anticipate Citizens United v. FEC and to pass legislation to deal with this or any other loophole if it believes a loophole exists.

The Supreme Court agreed to hear Citizens United v. FEC in August 2008. The Court heard arguments on it twice (March and September 2009), which led court-watchers to expect that major parts of McCain-Feingold would be struck down. Any legislation affecting the influence of foreign-controlled domestic corporations on U.S. elections would have received extensive bi-partisan support. Yet Congress didn't pass it, and Obama never asked it to try.

The Supreme Court had one duty: to apply the Constitution. President Obama was criticizing the court on public policy grounds the Court would have been out of line to consider.

The role of the Supreme Court is something about which leftists in general tend to be willfully ignorant. For example, in comments about this case, Josh Glasstetter of the popular left-wing Crooks and Liars blog not only ignored the fact that the Supreme Court is supposed to be neutral on policy impacts, but he exaggerated the decision's impact immensely:
[The Supreme Court justices voting in the majority] don't seem to mind that Lukoil (Kremlin Inc.), Citgo (Hugo Chavez LLC), Aramco (King Fahd and Sons Co.), and countless other multinational corporations - including those run as business arms of foreign governments - now have a free hand to influence the government from top to bottom.
If it so chose, Congress could plug any loophole being exploited by Hugo Chavez long before November. Who would vote against it?

So I defend the President on the charge that he lied when he claimed the decision opened "the floodgates for special interests — including foreign corporations — to spend without limit in our elections," because I doubt he knew any better, but I don't excuse him for acting as if the Supreme Court and the Congress have the same responsibilities.

He's a former law professor, for heaven's sake!


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Posted by Amy Ridenour at 1:12 AM

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