Sunday, May 2, 2010

President Obama Mischaracterizes Citizens United and TR

In Complete Agreement on Corporate Speech

This blog previously reported that President Obama misstated the holding of the Citizens United decision, authored by Justice Kennedy pictured above, which protected the free speech rights of corporations and their shareholders, during his state of the Union address.
Here is a link to that post:

In his Saturday radio address, the President continued his campaign against the Citizens United decision, this time mischaracterizing the state of the law and the scope of previous statutes regulating corporate political activity. Among other things, he incorrectly suggested that President Teddy Roosevelt had supported legislation banning the sort of activity that the Citizens United decision held deserved constitutional protection.

Here is an excerpt from the President's radio address:

Recently, however, the Supreme Court issued a decision that overturned decades of law and precedent – dealing a huge blow to our efforts to rein in this undue influence. In short, this decision gives corporations and other special interests the power to spend unlimited amounts of money – literally millions of dollars – to affect elections throughout our country. This, in turn, will multiply their influence over decision-making in our government.

In the starkest terms, members will know – when pressured by lobbyists – that if they dare to oppose that lobbyist’s client, they could face an onslaught of negative advertisements in the run up to their next election. And corporations will be allowed to run these ads without ever having to tell voters exactly who is paying for them. At a time when the American people are already being overpowered in Washington by these forces, this will be a new and even more powerful weapon that the special interests will wield.

In fact, it’s exactly this kind of vast power that led a great Republican President – Teddy Roosevelt – to tackle this issue a century ago. He warned of the dangers of limitless corporate spending in our political system. He actually called it 'one of the principal sources of corruption in our political affairs.' And he proposed strict limits on corporate influence in elections. “Every special interest is entitled to justice,” he said. 'but not one is entitled to a vote in Congress, to a voice on the bench, or to representation in any public office.'"

An ordinary member of the public, listening to President Obama’s speech or reading it, would conclude that the Citizens United decision overturned longstanding precedent affirming the State's authority to ban independent speech by corporations. The reader would also likely conclude that President Roosevelt (pictured above) proposed and secured the enactment of such legislation when he was President a century ago. Neither conclusion, however, is correct.

The Supreme Court did not approve a ban on corporate political speech until March 27, 1990, in Michigan Chamber of Commerce v. Austin, in a 6-3 decision. (Before that the Court approved bans on contributions by courts and labor unions to political campaigns.) Citizens United overturned Austin, on Jan. 21, 2010. That is to say, the Austin precedent lasted more than 1 decade but less than 2 decades. Thus, the assertion that Citizens United "overturned decades of law and precedent" is simply incorrect. Indeed, before Austin, the most important precedent on corporate political speech was First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), where the Court struck down a Massachusetts ban on corporate political speech in connection with referendum campaigns. Bellotti technically left open the question whether states or the national government could ban corporate speech in connection with elections, although the decision did reject, in reasoning equally applicable to candidate elections, the argument that states can ban corporate speech to protect shareholders from supporting causes with which they might disagree, a rationale that Justice Brennan tried to rehabilitate in his Austin concurrence. Still, as of 1990, there was no precedent sustaining a ban on corporate political speech in connection with candidate elections.
What, though, about the reform efforts of President Roosevelt. Here again, President Obama is off base. President Roosevelt supported legislation that prohibited corporate contributions to political campaigns, and Congress enacted that legislation in the form of the Tilden Act in 1906. The statute did not ban independent speech by corporations, however. (Indeed, given the Supreme Court's commerce clause jurisprudence during that era, it seems unlikely that Congress could have successfully banned such speech; the Court had repeatedly held that only states could generate corporate law and that Congress's authority was limited to regulating actual interstate commerce, and not companies that engaged in such commerce.) Moreover, Citizens United did not question the constitutionality of statutes like the Tilden Act. Thus, contrary to President Obama's claim, Citizens United was not in any way inconsistent with President Roosevelt's reforms. Indeed, the line the Citizens United opinion implicitly drew between corporate speech, on the one hand, and corporate contributions to candidates, on the other, was exactly the same distinction that the Tilden Act drew in 1906. Hence, on this question at least, the Supreme Court and T.R. are in complete accord.
As I have noted in previous posts, it's perfectly fine for a President to criticize decisions of the Supreme Court. He may even propose legislation inconsistent with such decisions, hoping the Court will change its mind. But a President who promises a post-partisan era characterized by a more civil political discourse should lead by example and refrain from repeatedly misstating If the President wants to ban core political speech by corporations and their shareholders, let him make the case for doing so on the merits, instead of appealing to tradition and case law that never existed.