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Alito Takes The Bait

Never in living memory has a president chosen to bait the U.S. Supreme Court in his State of the Union message. But that is what President Obama did this week, and Justice Samuel A. Alito Jr. took the bait.

Obama and fellow Democrats are livid over the high court’s 5-4 ruling last week that corporations and labor unions have a constitutional right to advertise for or against political candidates. To spin away from the court’s finding that corporate political advertising is an exercise of free speech, which has unqualified protection under the First Amendment, Democrats are arguing that the decision allows corporations, including enterprises controlled by foreign governments, to dictate the outcome of U.S. elections that “should be decided by the American people,” as the president put it.

Obama’s criticism has logical holes that would be obvious to a high school debate team. The First Amendment does not merely protect the right to say something; it protects the right to hear it. Denying corporations, foreign or domestic, the right to state their views also denies American citizens the right to hear what those businesses think of our candidates. This is just fine with Obama and other politicians who might prefer to keep such arguments out of the electoral process, but the Supreme Court’s job is to protect constitutional rights, not the incumbency of officeholders.

Corporations do not vote. Foreigners do not vote. They therefore cannot decide U.S. elections. If what they say is persuasive to citizens who do vote — a debatable proposition — that is exactly the outcome the Constitution is supposed to promote. Whether the party doing the advertising is foreign is irrelevant; the parties doing the listening are American.

Six justices were sitting directly in front of Obama during Wednesday’s address. Justices Clarence Thomas and Antonin Scalia, who as part of the court’s conservative wing were in the majority in last week’s decision, found something else to do that evening, as did 89-year-old Justice John Paul Stevens, who wrote the dissent.

They missed the remarkable spectacle of a sitting president using his most prestigious platform to attack them, in a setting that offered them no chance to respond — or so Obama must have thought.

“With all due deference to the separation of powers,” said the president who appeared to equate due deference with no deference at all, “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.” He proceeded to urge Congress to “correct some of these problems,” though, short of proposing an amendment to the Constitution, Congress has no power to reverse a Supreme Court holding that is decided on constitutional grounds.

Five justices, including three who dissented last week, sat stone-faced. But Alito, who joined the court in 2006, shook his head and appeared to say, “Not true, not true.”

Alito was technically correct. The majority decision explicitly declined to say whether foreign corporations could be restricted from advertising in political campaigns, because the law the court struck down applied to all corporations. But as a practical matter, the court’s sweeping assertion of First Amendment rights for corporate political advertising almost inescapably applies to foreign entities — both because the First Amendment protects the freedom of anyone speaking in this country, and because American citizens have a First Amendment right to listen.

Nevertheless, if Obama’s goal was to inject fear of foreigners into a discussion of free speech, Alito’s reaction played into his hands. If a judge responds to an irrelevant argument, the argument is no longer quite so irrelevant.

When Richard Nixon gave his State of the Union address in 1973, he did not mention the Supreme Court or its decision two weeks earlier in Roe v. Wade, the abortion rights case that has become the greatest legal controversy of our time. We learned only last year, from newly released White House tapes, that Nixon was ambivalent about the decision.

When Dwight D. Eisenhower gave his address in 1955, he did not refer to the court or its decision the previous year in Brown v. Board of Education, striking down racial segregation in public schools. His Justice Department had favored a go-slow approach to dismantling segregation.

Even Franklin D. Roosevelt, who was incensed when the Supreme Court struck down key elements of his New Deal plan to regulate prices, wages and other elements of commerce in the interest of economic recovery, managed to be polite when he spoke about the court in his 1937 address.

“The statute of N.RA. (the National Recovery Act) has been outlawed. The problems have not,” he complained. He later added, “We do not ask the courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good.”

Under the First Amendment, the power to regulate political speech in this country is non-existent. The Supreme Court was correct, if slow, to recognize this, and the justices would be well advised to turn their backs on any further baiting from the president. It will be interesting to see how many of the court’s members choose to attend Obama’s State of the Union address next year.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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