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The shake of a justice’s head

January 28, 2010

Watching President Barack Obama‘s State of the Union address last night, I was struck by what seemed like almost an awkward moment when Obama turned his sights on the recent ruling by the U.S. Supreme Court regarding spending by corporations during elections.

Supreme Court Justice Samuel Alito, bottom left, prior to President Obama's State of the Union address (AP photo)

I’m still up in the air on exactly what I think about the ruling – as an advocate of free speech, banning the speech, even if it comes from a well-funded corporate entity or group, seems to run contrary to my beliefs. But I also worry about the ability of such speech to drown out other voices, and unfairly carry more weight in the debate than those without a corporate checking account.

But as Obama levied his criticism at the court for allowing a corporate right to free speech, he and most everyone in the chamber also turned their sights to the six members of the court – three from the majority in the ruling, and three who dissented – who were sitting just below Obama to take in the speech.

It seemed a bit awkward, to say the least. And in the second row, Justice Samuel Alito seemed to shake his head and say something, leaving me wondering what he had uttered. In Congress as in the Capitol in Frankfort, justices attending speeches by the president or governor typically sit stoically through the address.

And in today’s New York Times, Linda Greenhouse writes about that same shake of the head and utterance by Alito, along with Obama’s chance to criticize the court with most of its members sitting right before him.

Greenhouse has a bit  more to say about Alito’s reaction in her column

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

Greenhouse also explains a bit about the history of election law regarding corporate contributions, and what the court’s recent ruling means –

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.

But this was a populist night and the target was irresistible. There are a variety of specific proposals floating around to address the Citizens United decision. The president offered no specifics and did not endorse any of them. Just as the decision doesn’t lend itself to a sound bite, neither do the fixes.

Be sure to give her column a read, and let me know your thoughts.

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