AFF's Doublethink

KMF — January 29, 2010 at 9:34 pm

http://www.salon.com/news/opinion/joe_conason/2010/01/28/foreignbucks/print.html

Obama is right on the (foreign) money
Right-wingers scream that Obama distorted the Citizens United decision. But Alito’s own remarks show they’re wrong

By Joe Conason

Jan. 28, 2010 |

From Glenn Beck to Joe Scarborough, right-wing voices are loudly complaining that President Obama’s remarks about the Supreme Court decision in Citizens United were false and insulting to the court. They’ve picked up on Justice Samuel Alito’s muttered “not true” as somehow proving that the president was wrong to complain that the decision will permit foreign special interests to influence American elections.

Although the scope of the latest problem created by the court may be a matter of speculation, there is no doubt that unbridled corporate contributions will open the way for foreign interests and individuals to intervene in U.S. politics — so long as their money is laundered through a company incorporated in this country.

So warned Justice John Paul Stevens in his partial dissent from the majority decision, saying that the decision by the court’s Republican majority “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans” — and the other three justices, appointed by Democrats, noted their agreement.

Why does Stevens think so? Perhaps because he and Justice Ruth Bader Ginsburg raised that issue with Theodore Olson, the lead counsel for Citizens United (his disreputable comrades from the Clinton wars). When Olson argued that under prior Supreme Court decisions, corporations “are persons entitled to protection under the First Amendment,” Ginsburg asked whether that “includes today’s mega-corporations, where many of the investors may be foreign individuals or entities.” Olson replied that the court had made no distinction “based on the nature of the entity that might own a share of a corporation.”

Ginsburg pressed further. “Nowadays there are foreign interests, even foreign governments, that own not one share but a goodly number of shares.” To which Olson answered, “I submit that the Court’s decisions in connection with the First Amendment and corporations have in the past made no such distinction.”

None other than Alito himself piped up to affirm the same point moments later.

“Well, Mr. Olson,” he asked, “do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?” Replied Olson, “I don’t think so, Justice Alito, and certainly there is no record to suggest that there is any kind of problem based upon that.”

No problem with foreign-owned media corporations publishing and broadcasting in the United States, perhaps — although some critics have wondered from time to time whether the Washington Times and the Unification Church were acting as instruments of a foreign power. But if foreign-owned corporations possess fully the same rights as citizens to participate in elections under the majority decision — as Olson and Alito indicated — then we could face a serious problem indeed.

So based on the argument articulated by the Republican lawyer and the Republican justice, Obama was right and his critics are either misinformed or dishonest. Other nonpartisan experts concur, noting that companies like Citgo, which is owned by the Venezuelan government, are now free to intervene at will in American elections. No doubt the Republicans will feel deeply irritated should Hugo Chavez decide to spend a few million bucks in a congressional or Senate election to get rid of one of theirs.

Sonny Bunch — January 29, 2010 at 9:59 pm

Linda Greenhouse, http://opinionator.blogs.nytimes.com/2010/01/27/justice-alitos-reaction/

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Steve — January 29, 2010 at 9:59 pm

Well, I don’t really know the legalities here, but let’s say the Iranian Supreme Council, working in cahoots with some US based multi-national corporation interested in buying Iranian oil or selling them computer chips, decided to set up a front organization called Citizens for Democracy, which then took out ads for some Senatorial election, would their be any way of us knowing? Given the Supreme Court ruling, it seems to me there is no legal way of stopping this. So please prove me wrong…otherwise admit that the president may have had a point.

Sonny Bunch — January 29, 2010 at 10:21 pm

Steve, in the world of William Goldman I could very easily imagine that happening. Lots of things happen in the movies.

In the real world there’s a whole regime set up at the FEC and the FBI designed to keep that from happening. And if it did happen, it would be found out.

Stan Wright — January 29, 2010 at 10:56 pm

The president’s comment is a straight-up paraphrase of a line in Justice Stevens’ dissent.

Here’s Stevens:
“The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990)”

Obama has ‘century of law’ where Stevens had ‘century of history’, but given that the subject of both comments is the history of campaign finance law, that distinction isn’t meaningful.

Given that Stevens’ dissent was also signed by three other justices, it must be concluded that this is a tenable position at the absolute minimum.

Mark — January 30, 2010 at 9:27 am

If Hugo Chavez bought 10% of Exxon, is Exxon a foreign corporation? How much control could he exert over their political advocacy? Would a 10% ownership in such a widely held equity constitute control? Is this botching or distorting the facts? In fact doesn’t virtually every public corporation have foreign shareholders?

hwickline — January 30, 2010 at 10:53 am

An honest question, as I’d like to hear an answer. With the court’s ruling in CItizens United, what is to stop ChinaOilUSA, for example, “jointly incorporated by China National Petroleum Corporation and Sino-Chemical Group” from making a donation to a US Presidential candidate? And how is that different from the Chinese government’s free speech rights being protected when it comes to American elections?

The nationality of a corporation seems a pretty difficult thing to nail down, and it doesn’t require cloak and dagger to imagine how a foreign entity might now be entitled to donate to American candidates.

I don’t see what role the FBI would have in the hypothetical I outlined above, and relying on the FEC to police this (and on what grounds?) seems to trust the security of our elections to disfunction.

I’d be very grateful for a response, Sonny.

Sonny Bunch — January 30, 2010 at 11:17 am

hwickline: Again, I would argue that the FEC and the FBI is set up explicitly to sniff out stuff like this. Let me answer your question with a question: What stops a wealthy individual from setting up a PAC (or series of PACs) and funneling hundreds of millions of dollars to the DNC or RNC? The FEC does. So if a foreign corporation set up a shell corporation in the U.S. with the sole intention of unduly influencing American political races, I’d be willing to bet we could figure out how to stop it.

hwickline — January 30, 2010 at 11:26 am

Thanks for the response, Sonny. I appreciate it. I’m still a little confused, though. If ChinaOilUSA is incorporated in the US, for legitimate business purposes (and I have no reason to believe it’s not), then is is not an American company? And on what grounds would the FEC stop their political donations? Again, I don’t see how any “sniffing out” is necessary, as the court has just ruled this legal and above-board, no?

It seems determining the nationality of a person would be considerably easier than that of a corporation. And again, These are actual questions I’ve posed, not rhetorical ones.

Sonny Bunch — January 30, 2010 at 12:20 pm

Looking at that website, I’d have to say that you could make the argument that since the parent company is clearly Chinese, the U.S. branch — regardless of whether it’s incorporated in the U.S. or not — counts as a Chinese company. Plus, Chinaoil is clearly headquartered in China. But I’m by no means an expert in the vagaries of financial and electioneering law. You’d be better off asking someone like Bradley Smith than me.

(On a tangential note, doesn’t that Chinaoil (USA) website look like something the Yes Men would put together in order to trick journalists? Or like something Stephen Glass would have worked on in “Shattered Glass”?)

Mark — January 30, 2010 at 7:34 pm

Sonny, why would the FBI investigate? In fact if i’m not mistaken didn’t some middle east sovereign funds put capital into citibank. nobody is saying this was done solely for the clandestine purpose of influencing elections, but do you think that the CEO of citibank will take my call first or theirs? The point is that the political process is now open to foreign influence, *virtually* completely unregulated. Why do you believe Obama’s criticism is wrong? Alito’s error was an emotional response, something we were told by roberts an umpire is immune to.. balls and strikes… or is that only for progressives?

Sonny Bunch — January 31, 2010 at 12:09 am

Except that a.) as Bradley Smith and plenty of others have pointed out, the Citizens United case did exactly nothing to change the strictures on foreign corporations donating, and b.) there are still tons of regulations on how money from corporations impacts the political process.