Obama's Misleading Legalities

Why does President Obama persistently misrepresent a particular Supreme Court decision and make misstatements about the law?

Does he do it intentionally for political gain, or are his legal advisors such poor lawyers that they misinform him? Whatever the reason, if he were Pinocchio, the statements he made about campaign finance “reform” in his latest weekly address would give him a nose longer than a Nationals’ baseball bat.

The President essentially repeated some of the same false claims that he made during his last State of the Union address. Back then, he asserted that the Citizens United decision had “reversed a century of law to open the floodgates—including foreign corporations—to spend without limit in our elections.” Justice Alito seemed to shake his head and mouth the words “not true.”

In fact, the President’s claims weren’t true. The Citizens United decision left the ban on direct campaign contributions to candidates by corporations and unions in place; the Supreme Court overturned only the federal ban on independent political expenditures, which is the equivalent of independent political speech. The 1st Amendment requires no less.

This past weekend, Obama was attacking corporations for supposedly trying to “take over” our elections. He also criticized Republican leaders for stopping the “reform” sponsored by Sen. Chuck Schumer and Rep. Chris Van Hollen, the so-called DISCLOSE Act. The Democrats were unable to get a single Republican to vote with them to end cloture just before the recess.

Eight former commissioners of the Federal Election Commission (including myself) have called the DISCLOSE Act “unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy.” But none of these reasons (or the 1st Amendment) was sufficient to convince this president.

In his address, the President claimed that if this new law were in place, foreign corporations “would be restricted from spending money to influence American elections—just as they were in the past.”

The problem with this claim is that current law already prohibits foreign nationals, including foreign corporations, from participating in American elections directly or indirectly—the Citizens United decision didn’t change that at all. Foreign corporations can’t contribute to candidates, nor can they engage in independent political expenditures as American corporations and unions now can.

What Obama and the sponsors of the DISCLOSE Act want to do is expand the current prohibition on foreigners to as many American companies as possible that may have a small percentage of foreign shareholders, even if those shareholders have no control whatsoever over the decisions made by the Americans who run the corporation.

This is just an end-run around the Citizens United decision. Otherwise, why would he make no mention of unions with foreign members or foreign nationals as directors such as the Service Employees International Union? The DISCLOSE Act has nothing to say about such unions.

But that is the theme throughout the DISCLOSE Act, whose merits the President was praising on Saturday—most of its provisions apply to corporations but not unions. This completely abandons the history of past campaign finance reform that has always treated unions and corporations on an equal basis. It gives support to claims that the DISCLOSE Act is just a partisan bill intended to help one particular political party, not reform the election process.

Obama said on Saturday that he was concerned about “the corporate takeover of our democracy.” But the PACs of unions like the International Brotherhood of Electricians, the American Federation of State, County and Municipal Employees, and the SEIU are some of the biggest contributors to federal candidates. The SEIU made the largest amount of independent expenditures so far in the 2010 election cycle of any other organization. But do we hear Obama expressing concern about the “union takeover of our democracy”? Is he perhaps unaware that while corporate PACs generally split their contributions evenly between Democrats and Republicans, union PACs give almost 100% of their contributions to Democrats?

The President even cited Republican Teddy Roosevelt for his supposed opposition to “corporate influence” in our elections. President Roosevelt signed the Tillman Act into law in 1907, which banned direct contributions to federal candidates by corporations. That law is still in place today and was not changed by the Citizens United decision. Contrary to the President’s claim, Roosevelt was concerned with direct contributions to candidates, not with restricting the 1st Amendment rights of corporations, associations or unions to engage in independent political speech.

Obama mistakenly claims that “we don’t know who’s behind these [political] ads, and we don’t know who’s paying for them.” According to him, Republicans oppose the DISCLOSE Act because they want “to keep the public in the dark.” But current law and FEC regulations have extensive and detailed disclosure and reporting requirements for electioneering ads.

Obama seemingly overlooks the fact that the Supreme Court upheld those requirements in Citizens United. Once again, the lawyer and former law professor is wrong on the law.

Obama concluded his address by saying that “this is an issue that goes to whether or not we will have a democracy that works for ordinary Americans—a government of, by and for the people.” He is certainly correct about that—but his solution is to restrict political speech and political advocacy of those he fears will criticize his policies.

It is Obama’s push for an all-powerful central government, running our economy and the lives of everyday Americans, that represents the biggest danger to “a democracy that works for ordinary Americans.”