x Abu Dhabi, UAESaturday 22 July 2017

Obama finds enemy on court bench in battle over election campaign funds

Supreme Court ruling to allow political donations by big corporations revives tension between the White House and the judiciary.

"Not true, not true" were the words Samuel Alito, a US Supreme Court justice, appeared to be mouthing when Barack Obama criticised a recent court decision during his State of the Union address. "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," President Obama, who taught constitutional law at the University of Chicago, said on January 27.

As Democrats applauded, the six justices present were still, except for Mr Alito, who shook his head repeatedly, mouthing the words. His reaction became fodder for pundits and activists across the political spectrum and raised public awareness of a court decision that John White, a constitutional law professor at Catholic University in Washington, called an "overreach". The court in the 5-4 decision overturned two previous rulings and said corporations could use their money to run adverts supporting or opposing political candidates. They would still be prohibited from contributing funds directly to a candidate.

Mr Alito, who was appointed to the court by George W Bush, sided with the majority in a case that has many scholars, as well as the president and Mr White, questioning the ruling and the ramifications it could have. "I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities," Mr Obama said in his speech. "They should be decided by the American people."

The court in Citizens United v Federal Election Commission did not rule specifically on foreign contributions as they were not differentiated from domestic ones, and there are restrictions on them that were not at issue in the case. Some scholars see the court's ruling as potentially opening the door to more foreign involvement in US campaigns and taking them out of the political parties' control.

Larry Sabato, director of the Center for Politics at the University of Virginia, said some of the reaction "might be overblown" while pointing out that "it isn't even easy to prohibit foreign companies from contributing. What's a foreign company in the global economy? Most big entities have American subsidiaries." Mr Sabato said that companies try to keep friends on both sides and he doubted that many corporations were "going to jump in with both feet".

"It's too upsetting and controversial for shareholders," he said. "There will be a few prominent cases of corporations entering the fray in specific cases this fall, and they will get a lot of attention." Mr White said that Ben Ginsburg, the former general counsel for the Republican National Committee, criticised the decision, saying "that it would deprive political parties the control of their messages during their campaigns".

"Ginsburg's point is very well taken," Mr White said. "While there has been a lot of focus as to which party would benefit from the decision, the long-term impact could very well be to weaken both parties." As for Mr Obama taking on the Supreme Court, both Mr Sabato and Adam Winkler, a constitutional law professor at the University of California, Los Angeles, said that although presidents do not often criticise the court in State of the Union addresses, it has happened before.

"Franklin D Roosevelt, for instance, castigated the Supreme Court in much harsher language for overturning his New Deal programmes," Mr Winkler said. "Every president likes to score points condemning 'activist judges'."  "Occasionally, presidents such as [Ronald] Reagan have made mention of decisions they hoped would be altered by legislation, but nothing as tough as Obama's words," Mr Sabato said.

Aside from Mr Alito's reaction, Mr Obama's harsh talk will probably not have any effect on the work of the court. "Life-tenured Supreme Court justices are not going to be cowed by public criticism of their decisions, even by the president. The president still has no power to punish the justices, most of whom probably figure they will be in office long after Obama is back in Illinois," Mr Winkler said.

Mr Obama does, however, have the ability to influence legislation and sign it into law, and the president urged Democrats and Republicans to pass a bill that, he said, helped correct some of the problems with the court decision. A US Senate committee is studying proposals that would reapply the restrictions on corporate campaign giving. "There are a number of options available to Congress," Mr Winkler said. "One reform that might stand would be to require shareholder consent for corporate political spending. Congress could pass a law banning corporate spending by firms with substantial foreign investors. Or it could ban corporate political spending by firms with government contracts."  

Regardless of what happens with the issue in Congress, Mark Rozell, a public policy professor at George Mason University in Virginia, finds the State of the Union brouhaha between Mr Obama and the Supreme Court to be a natural outcome. "There is nothing in [the US] system of separated powers that renders improper criticism of one branch of government by another," he said. "Congress and the president criticise each other all time: why is the court above any such counterbalancing influence?

"The court is not above criticism or challenge by another branch of government. And considering this was a sweeping 5-4 decision that overturned years of congressional deliberations and legal precedents, why would anyone be surprised by public officials expressing their disagreement?" rpretorius@thenational.ae