Saturday, January 30, 2010

President Obama's Off-Target Critique of Citizens United

Here are some thoughts on the President's State of the Union critique of the Citizens United decision, a critique that let to a simple and immediate rebuttal by Justice Alito.
1) The President began his criticism by expressing his respect for the Separation of Powers. It's not clear to me why the President felt it necessary to begin his remarks in this way. Presidents and members of Congress should feel perfectly free to criticize rulings of the Supreme Court, and doing so has no implications for the separation of powers. Andrew Jackson criticized McCulloch v. Maryland, Lincoln criticized Dred Scot, FDR criticized numerous decisions during the New Deal, and Reagan criticized Roe v. Wade. None of these criticisms alone or taken together in any way undermined the Separation of Powers. As Madison and Lincoln both explained, Presidents and individual citizens are perfectly free to disagree with decisions of the Supreme Court. Moreover, when acting in the sphere of their own authority, Presidents and members of Congress are perfectly free to take actions inconsistent with such decisions. So, for instance, Andrew Jackson was perfectly free to veto on constitutional grounds a bill to create a National Bank, even though the Supreme Court had unanimously held that Congress had the constitutional authority to create such a bank. In the same way, President Reagan was perfectly free to veto, on Constitutional grounds, Congress's effort to re-impose the so-called Fairness Doctrine, even though the Supreme Court had held that the doctrine is constitutional.

When Presidents and other political actors take issue with judicial rulings and/or act on their own views of the Constitution, they thereby facilitate a dialogue about the meaning of the constitution, a dialogue that can enhance both the quality and legitimacy of the resulting constitutional consensus.

2) Of course, if the President is going to criticize the Court in an effort to facilitate such a dialogue, he should characterize accurately the decision he is criticizing. President Obama's criticism's was factually inaccurate in a couple of ways.

First, the President claimed that the Court's decision would protect speech by "foreign companies." However, Citizens United, the actual party before the Court, was an American company, and the Court expressly declined to address whether Congress may place greater limits on foreign corporations (or, for that matter, foreign citizens) than it may impose on domestic companies. Hence, Citizens United in no way provides that foreign corporations or persons have the same free speech rights as American companies.

Second, the President claimed that the Citizens United decision "reversed a century of law." Again, this is demonstrably false. Congress did not attempt to regulate corporate speech until 1947, and the Supreme Court did not sustain such a ban until 1990, when, in Michigan Chamber of Commerce v. Austin, the Court upheld Michigan's ban on speech by the state's Chamber of Commerce. Before Austin, the Court struck down a Massachusetts ban on corporate political speech in connection with referenda campaigns. See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). After First National Bank, the Court held that Congress could not ban speech by non-profit ideological corporations, even when such speech took place in connection with an election. See Massachusetts Citizens for Life v. Federal Election Commission, 479 U.S. 238 (1986). (The Court thus did not decide one way or the other whether Congress had the authority to ban speech in connection with elections by for profit corporations.) To reiterate, Austin, decided just less than 20 years ago, was the first decision by the Court sustaining a ban on corporate political speech.

In referring to "a century of law," the President is implicitly invoking the so-called "Tillman Act," which, in 1907, banned corporate contributions to candidates for Federal office. The Act did not purport to ban corporate speech, even speech that required large expenditures of money on, say, newspaper advertisements announcing a corporation's endorsement of a candidate. For decades now, the Supreme Court has repeatedly distinguished between the (weaker) constitutional protections afforded to contributions, on the one hand, and speech, on the other. (Thus, for instance, Congress may limit the size of individual contributions to political candidates.) Citizens United dealt only with a Congressional ban on speech itself, and not with a ban on contributions.

It is certainly true that, like contributions, speech can involve an expenditure of money. (Though, some corporate speech my be as simple as a statement of endorsement by the firm's Board of Directors.) It's also true, however, that outright bribery of a public official involves an expenditure of money. However, no one would claim that Citizens United somehow called into question federal anti-bribery laws.

3) Let's hope that the President's future critique of Citizens United focuses on the decision's actual holding and rationale.
Update (February 1):
One of President Obama's supporters has issued another imprecise description of the Citizens United decision. According to E.J. Dionne, the decision was a "ruling on corporate money." It was not, of course. It was, instead, a ruling on "corporate speech." The decision did not address the regulation of, say, corporate campaign contributions, as explained above. Here is a link to Mr. Dionne's Op-Ed.