Obama: Wrong on Supremes. Wrong on Law. Wrong Period.

In the State of the Union address, Obama created a little dust-up by criticizing last week's Supreme Court decision in the Citizens United case, saying, the court “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections.” This caused Justice Alito to shake his head and apparently mouth the words, "that's not true."

For an alleged Constitutional Law Professor, he should know better, and, as a president delivering the SOTU, he should save his political arguments against SC decisions for another venue.

Politifact.com has already gotten into the act, and proclaimed Obama's claim to be "Barely True." And, that's being generous. The majority opinion maintained that the court was not specifically overturning the barrier to foreign campaign spending, codified in 2 U.S.C. 441e(b)(3), This was outside the scope of the opinion, and Justice Kennedy, writing for majority, stated as much. Politifact's conclusion, "our experts agreed that Obama erred by suggesting that the issue is settled law."

The Heritage Foundation's Senior Legal Fellow, Hans A. von Spakovsky posts today that Obama is wrong on both the law and the facts in this case. Spakovsky points out, "In 1907, Congress passed the Tillman Act that banned direct contributions by corporations to federal candidates – there was no ban on independent political expenditures in the law." In other words, the Tillman Act (sponsored, by the way, by a segregationist to prevent corporations opposed to segregation from giving to Republican candidates. Rich irony there.) prevented corporations from giving money directly to candidates, not to make their own independent expenditures.

He goes on to point out:

"Congress did not ban independent political expenditures by corporations and labor unions until 1947. For three decades after the passage of that law, the Supreme Court went out of its way to avoid upholding its constitutionality, and the Court actually struck down a separate ban on independent expenditures as well as a state law prohibiting corporate expenditures on referenda. It was not until 1990 in the Austin case that the Court, in a 5-4 decision, upheld a state ban on independent political expenditures by a nonprofit corporation (a trade association) in a case completely at odds with prior precedent. The actual electioneering communications provision at issue in the Citizens United case was part of the McCain-Feingold amendments to federal campaign finance law in 2002."

So, that "century" old law is actually from 1947.  In the arguments for this case, the government did not defend the 1990 decision, and ultimately, it is the 2002 McCain-Feingold stupidity that precipitates this decision.

On the foreign corporations angle, von Spakovsky is less generous than Politifact:

"2 U.S.C. § 441e bans all foreign nationals from directly or indirectly contributing to a federal candidate or a political party. It also bans all foreign nationals from making any independent political expenditures – and this ban was not overturned by the Supreme Court."

"Foreign corporations are prohibited from participating in American elections. But their domestic subsidiaries that are American companies, employ American workers, have American officers, and pay American taxes, are able to participate in the American election process to the same extent as other U.S. companies as long as all of the money and all of the decisions are American."

Finally, "The Citizens United decision did not even consider this ban on foreign nationals. So the President was completely out-of-line when he made the claim that foreign corporations would be able to spend without limit in our elections, a claim that seems to have become a talking point for critics of the Supreme Court’s decision."

Read the whole thing, and learn something.