Footnote to the State of the Union

After watching some of the news coverage following the State of the Union, I was struck by how much coverage was given to one part of it – President Obama’s criticism of the recent Supreme Court decision which potentially will change the way campaigns are run and financed. You can click here to read my whole analysis of the decision in Citizens United v. Federal Election Commission, but in essence the Supreme Court held that corporations are free to use their own money to run advertisements in support or against a candidate that is running for election.

In his speech, President Obama said, “With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” At he same time, the cameras apparently caught Justice Samuel Alito (who voted with the majority and was appointed by President George W. Bush) mouthing the words, “that’s not true” or something of the like.

The next day both Republicans and Democrats predictably lined up to criticize one and defend the other (Obama or Alito). Republicans were critical of the President for criticizing the Supreme Court as they sat right there and said that he did step over the bounds of separation of powers. Democrats criticized Alito for reacting in an unprofessional manner for a Supreme Court Justice. While the Supreme Court routinely attends the State of the Union Address, they are seen as the non-political branch of the government and therefore, they sit there and just listen without any reaction. Part of a Judge or Justice’s disposition is such that they are not supposed to pre-judge issues and simply decide cases on their own merits completely outside the world of politics. As such, they are supposed to be a-political. Well, both parties struck me that their criticism and or defense smacked of hypocrisy.

For the Republicans to say that the sitting President should not criticize the Supreme Court during the State of the Union, what do they say about all the times Republican Presidents have criticized justices for being “activist” and especially during the State of the Union, I can recall Presidents Reagan and both Bush’s criticizing Roe v. Wade and President Reagan routinely asked for a constitutional amendment to overturn it. I never heard any criticism then. Also, what if the Republicans had won in 2008? Do they really think that “President McCain” would have avoided the red hot issue when he has been a champion of campaign finance reform for much of his career? As a Senator, he has been critical of the decision and I expect, “President McCain” would have had something very similar to say.

As for Democrats, they were critical of Justice Alito for saying that the President wasn’t correct. As a side note, there is a lot of chatter in the legal community as to whether President Obama was right regarding the issue of foreign corporations. There is a debate whether or not the Supreme Court decision would extend to foreign companies or be limited to American corporations, so for Justice Alito to say that the President was wrong, could be right when it comes to the foreign corporations possible involvement.

So what do I think? I think they were both wrong, but for slightly different reasons. Justice Alito should have some composure as a Justice on the highest court on the land and be able to keep his thoughts to himself. Meanwhile, I have said since the case was decided that President Obama’s criticism is completely hypocritical as he has been the biggest campaign fund raiser by far in American politics. Also, one other thing that I have failed to mention in my prior posts on this Supreme Court decision is that it applies to labor unions as well. You don’t think that will help the President and his fellow democrats? As I’ve said, politics and money go hand in hand and the more the politicians try and separate the two, the more their OWN supporters will try and find the loopholes. If that’s not hypocrisy, what is?

Unfortunately, in a speech where the President tried to reach out to Republicans by espousing many of their ideas (tax cut and credits, off-shore drilling, earmark reform, etc.) and attempted to engage them on some of his issues like health care reform, the parties found something in the speech that could drive them farther apart. In a speech that was an attempt to set up bi-partisan talks, the partisans found a way to make a partisan issue. That’s why I am losing faith in national politics as a whole. It seems like even when there are a few individuals who will try and work together, most of the partisan players are more willing to try to bring the others down then they are in trying to enact meaningful legislation.

More Significant than Massachusetts?

I am going to take a break in blogging about health care because there was other big news in the political world today. But it will not get the same publicity that the special election in Massachusetts got; nor will it get the same chatter on the political news television and radio stations. It may get one day of coverage, but people will not dwell on its consequences like they will Scott Brown becoming the 41st Republican Senator. However, the effects of this story will be much more long lasting than Senator-elect Brown’s win. In fact, I am willing to go as far to say that this is the BIGGEST political news of the year, even if the Republicans take back both the House and Senate this fall because of the long range significance of this news.

What am I talking about? The Supreme Court today announced its decision in the case of Citizens United v. Federal Election Commission. Without getting into the specifics of the case, the High Court essentially held that corporations are free to use their own money to run advertisements in support or against a candidate that is running for election. Previously, the law prohibited corporations from spending their own money in such a way. Instead, corporations had to go through the step of setting up a PAC (Political Action Committee), but Citizens United argued that such a prohibition was a violation of their First Amendment Free Speech rights and five of the Justices agreed.

So what does mean? We can now expect corporations to run advertisements supporting different candidates. In fact, the next logical step would be that people will set up corporations to specifically fund advertisements to air for candidates. Such corporate “funding” would be completely outside the campaign finance law limits. In other words, this opens a HUGE loophole for individuals or corporations to funnel money through to support their candidate of choice.

Why is this significant? It completely changes the way elections will now be run. Candidates will not only have to worry about ads that their opponent will run, but ones that corporations may run against them. It will also open up the amount of money that will be spent on political campaigns to heights never imagined. If a campaign does not have much money and a corporation decides it wants that candidate defeated, it will be very difficult for that candidate to survive unless another corporation comes to his or her rescue.

Who does this help? Conventional wisdom says that this will help the Republicans because they are the ones that are more cozy with big business. In fact, the 5-4 decision broke on those ideological conservative/liberal grounds where the four conservatives plus moderate Justice Kennedy voted to strike down the law. Additionally, conservatives applauded the decision while liberals decried it. President Obama criticized the decision saying that it will give “a green light to a new stampede of special interest money in our politics.” However, wasn’t it just a year and a half ago that Candidate Obama decided to forego public financing for the general election while Republican John McCain agreed to the limits. Why did Obama decide that? Because he was able to raise over $1 Billion dollars towards his campaign. The Democrats certainly didn’t seem to be at a money disadvantage in 2008 and even though I am a supporter of the President, I have to call him on his hypocritical criticism of this decision. In short, I don’t think either party will benefit to a large degree, instead this will add another dynamic that politicians will need to navigate. The good ones will be able to do that where the bad ones won’t. Additionally, corporate America as a whole is seen by the public as supporting the Republicans over the Democrats but the truth is, they support both parties. In essence, they hedge their bets.

What do I think? I have never been an advocate of campaign finance reform, but not for the reason that most conservatives are (that ideological argument about free speech). Rather, I’m just more practical and perhaps jaded. Money and politics go hand in hand whether you want them to or not. I heard it described like this once: “Campaign money is like water on pavement; it will find the cracks and seep through no matter how small those cracks are.” That’s the perfect analogy and today the Supreme Court didn’t make a crack in the pavement, they created a chasm! I have always thought the way to deal with money and politics is to only have one rule. Each candidate can collect as much as they want, from whomever they want; they just have to disclose it. Who people get there money from, in many ways, will tell you more about what policies they will support than the candidate’s own words.

One final note regarding the Supreme Court – who are the activists now? The criticism that conservatives have had of the judicial system is that the courts go beyond their scope of what they should do. If a law is passed by the popularly elected branch (Congress) and signed into law by the “republically” elected executive (President), then the courts should not just strike down the law and ignore what the majority of people voted for. Conservatives always complain about justices or judges who insert themselves into the law making process. To do so has always been the definition of being a judicial activist. Yet, I don’t think any Republicans will criticize Justice Kennedy (who wrote the opinion), Chief Justice Roberts or any of the other conservative justices as being an activist judge. However, the argument could be made that this is exactly what they did. I always find it curious how people swallow their criticisms when the shoe is on the other foot.