NOTE TO READERS: The following is in two parts: first, an analysis of a “dialogue” between President Obama and Supreme Court Justice Samuel A. Alito, Jr., during Wednesday night’s State of the Union message; and, second, a commentary about the incident’s propriety.)

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Analysis

Supreme Court Justice Samuel A. Alito, Jr., on Wednesday night allowed himself a dissent — or, perhaps, a point of privilege — at one point during President Obama’s State of the Union address in the chamber of the House of Representatives. It has much of Washington talking — at the level of common gossip, and at a more significant level.  It may have a bearing on what is shaping up as the first attempt in Congress to write a new law reacting to the Supreme Court’s decision last week in Citizens United v. Federal Election Commission.

Fairly late in the President’s speech, he made a passing gesture of respect for the Court’s role as a separate branch of government, and then leveled a criticism.  He said this: “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.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.'”

At that point, the television cameras panned to the row of seats where six members of the Court were seated.  The cameras caught Justice Alito shaking his head side to side, and mouthing some words, which many observers have interpreted as “Not true.”   (On Thursday, when asked about this, the Court’s public information office relayed this: “The Justice has no comment.”)

This exchange, if it can be called that, had to do with the Court’s ruling in Citizens United, nullifying federal campaign spending limits on corporations.  If one assumes (without hard proof) that Justice Alito was reacting to the President’s discussion of the potential role of foreign corporations in American politics, the Justice could have had in mind a section of the Court’s main opinion in Citizens United.

That section said: “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”  The opinion then cited a provision of federal law (the full text is here.) In essence, that provision bars any “foreign national” from making any direct or indirect contribution of money or anything of value “in connection with any federal, state, or local election.”)

The clear implication of the phrasing is that the Court, in the future, might well uphold such a ban by finding that the Government did, indeed, have a strong interest in keeping foreign money out of U.S.  campaigns, at any level of government.

And that implication, perhaps, is what Justice Alito was thinking about.  The President, for his part, did not seem to share that view, indicating that he thought it would be necessary for Congress to pass a new law to put up a barrier to the flow of foreign money into U.S. politics.

The early indications, from a flurry of activity in Congress and among groups that favor limits on campaign finance, is that the first attempt to pass new legislation will focus on foreign corporations.  For example, Sen. Al Franken, Minnesota Democrat, on Thursday became one of the first to introduce such a bill (his office’s press release discussing the measure is here).  One of the more active lobbying groups in the campaign finance field, Democracy 21, is also promoting that initial approach, as are other groups.

The debate that now seems to be getting under way in Congress will focus on just how far a ban on foreign money should go.  Sen. Franken, for example, said that nothing in present federal law “explicitly prohibits foreign companies from creating American subsidiaries or getting control of American companies and using them to flood the airwaves in support of their preferred candidates.”

It thus appears that new legislation, if passed, would reach American entities of some definition.  And, presumably, if those entities have an existence under U.S. law (such as state corporation law), they might have the same First Amendment rights that the Court recognized in Citizens United for purely American companies.  It is likely, therefore, that there will be future tests in U.S. courts on the constitutionality of the new post-Citizens United legislation.

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Commentary

For years, a quiet debate has continued — and it has included some Supreme Court Justices — about the propriety of members of the Court attending the State of the Union ceremonies when Presidents visit Congress.  One current Justice, John Paul Stevens, has explicitly opted not to attend, believing that it is not appropriate.  Other Justices, over time, have absented themselves for that reason.  There have been times, recently, when only a single Justice showed up for such a message.

The State of the Union message is a constitutional affair, in one sense.  Article II, Section 3, provides that the President “shall from time to time give to the Congress information on the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient…”

Thus, the affair has the dignity of a state occasion, and, therefore, has considerable potential dignity attached to it.  The Justices, by their attendance, may add to that.  But both the President, and the audience, understand that this is also a very explicit political event: the President is speaking to the audience outside the chamber as much as to those in the seats and the galleries, to build support for his policy ambitions and agenda, and the audience responses — applause, shouts, or other expressions of sentiment — are meant to convey messages, too.

When Supreme Court Justices attend, they sometimes sit awkwardly in silence, sometimes rise at what they deem appropriate points, and sometimes applaud where they are moved to express approval.  Television cameras frequently focus on them as they are reacting.

Whatever messages such attendance and such responses are intended by the Justices, it is fair to assume that the American people draw some conclusions from them.  The Justices thereby become participants in the political dialogue that goes on during the message.  On Thursday, Justice Alito’s apparent response was the subject of a lively public debate, supporting him and chastising him.  He thus has become a part of the public discussion over whether something should be done in response to Citizens United.  Whether he is now aware of that is unknown, since he has opted not to comment in response to inquiries.

The Supreme Court, by a very long tradition, does not get out in public very often to defend the substance of its rulings, or even to explain them.  The common understanding, within the Court, is that the opinions speak for themselves.  Justice Antonin Scalia, of course, has run against that tradition repeatedly, telling many audiences, for example,  to “get over” their criticism of the 2000 decision in Bush v. Gore.

Justice Alito’s response on Wednesday night, one may presume, was intended to suggest that Citizens United did not do what the President said it did.   But it puts him on record on the specific point of law that may arise if Congress does pass a new law in response to the President’s call.  And, should litigation in response to such a law reach the Supreme Court, Justice Alito and his colleagues will be faced directly with the question of whether that measure fits within Citizens United, or violates it.

Turning to the President and the propriety of his remark;  he, too, has drawn criticism.  It is not uncommon for Presidents to react negatively to Supreme Court decisions they do not like.  Franklin Roosevelt, in fact, wanted to re-structure the Supreme Court in reaction to a string of rulings against his initiatives.  But Presidents seldom challenge the Supreme Court to its face, as President Obama did Wednesday night.

The reaction, predictably, is split: his critics say it was an insult to the Court, his supporters say the Justices deserved it.  No matter which side one takes in that debate, there is no doubt that the President has greater freedom to speak out in a political way than the Supreme Court does.  His remark very likely was intended to be more political than institutional, and seemed designed to help build his case for new legislation.

In fact, Vice President Biden, in an appearance Thursday morning on television, defended the President by noting that Mr. Obama had not questioned the Court’s “integrity” while questioning its “judgment.”

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