Fact-Checking the Fact-Checkers

The New York Times takes offense:

The president appeared to have mischaracterized the Supreme Court’s decision to overturn restrictions on corporate-paid political commercials by suggesting that the decision invited political advertisements by foreign companies, too.

[...]

Justice Samuel A. Alito Jr., a member of the majority in that decision, broke with the justices’ usual decorum to openly dissent. He shook his head no and mouthed the words “not true.”

The majority opinion in the case, Citizens United v. the Federal Election Commission, specifically disavowed a verdict on the question of foreign companies’ political spending.

“We need not reach the question of whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation’s political process,” Justice Anthony M. Kennedy wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

President Obama called for new legislation to prohibit foreign companies from taking advantage of the ruling to spend money to influence American elections. But he is too late; Congress passed the Foreign Agents Registration Act in 1996, which prohibits independent political commercials by foreign nationals or foreign companies.

You can watch the exchange here:

While The Times' David D. Kirkpatrick, who wrote this brief, believes that he's doing a fact-check here, that he really caught President Obama, he didn't. Last week's Supreme Court decision in the Citizens United case does exactly what the President says it does. To say otherwise is to mince words to the point of removing them of meaning.

It is true that the Supreme Court claimed not to be addressing the question of whether foreign money would be allowed in American elections. Yet at the same time, the Court opened up the door to unlimited corporate spending in American elections in a way that would almost undoubtedly lead to a flow of foreign capital into our politics.

Publicly traded corporations based in this country have foreign shareholders just as they have American ones. It is hard to envision a feasible rule going forward -- whether one devised by Congress or one envisioned by this Court -- that could create a genuine firewall to ensure that money originating from foreign shareholders would not seep into American elections. This is true not only for natural persons (actual people) who are citizens of other countries but also for foreign corporations and even sovereign wealth funds owned by foreign governments that own shares of nominally American corporations allowed under Citizens United to spend freely in American elections. Unless the Court were to rule that no American corporation with any foreign ownership was subject to the new rule in Citizens United -- a holding that would remove from the scope of Citizens United virtually any and all publicly traded corporations (presumably all of which have at least a single foreign shareholder) -- it is unclear exactly how Congress or state legislatures would be able to stem the flow of foreign capital into American elections. A subsequent decision that limits are permitted on entirely foreign-owned subsidiaries incorporated in the United States would not go nearly far enough.

So in the fact-check of The Times' fact-check, I give the paper a thumbs down, and firmly believe that the President was correct in stating that foreign money -- including money stemming from foreign corporations -- appear to have been permitted at least to some extent under the recent Supreme Court opinion.

[UPDATE by Jonathan]: And just to add, if you watch the video, it's pretty clear that Justice Alito begins taking offense not at mention of foreign corporations, as The Times asserts, but rather when the President spoke about the decision's strengthening of the position of special interests.

Who is really qualified to sit on the Supreme Court?

(Cross-posted from Think it Through)

Having just returned from a blog-free, almost e-mail free three weeks in Umbria, I have learned that the President named Sonia Sotomayor as his choice to replace David Souter on the Supreme Court, and that the Republicans in the Senate and elsewhere are making noises about opposing her on the grounds that she is too Hispanic.

Sotomayor's critics start by admitting that she is "qualified." She has a law degree from Yale University, was appointed to the federal district court by Republican President Bush in 1991, then elevated to an appeals court judgeship by President Clinton in 1998. Her critics argue that being qualified is not enough. They question her judgment, because she would see the law through the eyes of a Puerto Rican woman from New York City. Essentially she is too Hispanic-urban-northeastern-female.

There's more...

Don't fear the filibuster

(Cross-posted from Think it Through)

Why is it that Senators, lobbyists, and the news media who cover Congress take as an article of faith that Democrats need 60 votes to pass their legislation in the Senate and the Republicans only need a simple majority?

The press has been reporting the need for 60-vote majorities as if it has always been a given -- because 60 votes are needed to close down debate if the minority objecting decides to filibuster.Under Majority Leader Harry Reid, the idea of upsetting the Senate by daring the Republicans to actually carry through on their threats to filibuster is out of the question.When I asked a 30- year veteran Senate staff person this week how this phenomenon has come about, he said, "comity in the Senate is valued more than taking a stand for something."

There's more...

BAR ASSOCIATION BANS LAWYERS FROM REPRESENTING THE BUSH ADMINISTRATION

Reprinted from The Satirical Political Report http://satiricalpolitical.com

In a move that legal scholars are calling both stunning and long overdue, the American Bar Association (ABA) has issued a ruling prohibiting all lawyers from serving in, or representing, the Bush Administration.

Although this decision had been under consideration for some time, the straw that broke the camel's back was the recent statement of Charles D. Stimson, a senior Pentagon official, who condemned lawyers at leading national firms for providing representation to prisoners at Guantánamo, and suggested that corporate clients should terminate their relationship with such firms. The same point appeared Friday on the editorial page of The Wall Street Journal.

The decision by a special three-member panel of the ABA was based on a seldom-used disciplinary rule, DR-666, which provides that "a lawyer's duty of zealous representation does not apply to a client who is the devil-incarnate."

However, the decision was not unanimous, as Professor Alan Dershowitz of the Harvard Law School cast a dissenting vote, on the basis that "the ruling did not go far enough, and should have included a proviso for the torture and rendition of these right-wing lawyers."

CONTINUED at: http://satiricalpolitical.com/?p=517

There's more...

SCOTUS And The Clean Water Act

A great deal of attention is being paid to the fact that the Supreme Court is set to hear a case regarding the constitutionality of a ban on some abortions. It's understandable, as it will be the first high-profile test of Bush's new Supreme Court on the question of choice. However, having already resigned myself to the idea that the Roberts court will likely chip away at the right to choose, I think there's another case that will also tell us quite a bit about the direction of the court.

It's long been a tenant of many on the judicial right that the federal government does not legitimately have the authority to regulate the environment. So I'm particularly interested to see how the court will rule on these challenges to the Clean Water Act. In both cases, Carabell v. U.S. Army Corps of Engineers and Rapanos v. U.S., developers (of condominiums and a shopping mall, respectively) are claiming that the Clean Water Act cannot be applied to wetlands that feed tributaries of the "navigable waters" expressly protected by the law. The rightist talking point on this is that the Clean Water Act can't be applied to "every wet spot in the nation." Unsurprisingly, that language comes directly from the Federalist Society. But as Jim Murphy, of the National Wildlife Federation says, the argument is akin to "saying that you cannot cut down a tree, but are free to poison its roots."

As of yesterday, with Roberts and Scalia vigorously mocking the scope of the Clean Water Act, Alito had only asked one question. It fit in with the line of questioning coming from his colleagues on the right, questioning what would constitute a tributary. Now, one probably can't glean too much based on one question. But if Alito's record tells us anything, it's that he's likely to side with the deregulators on this issue.

A sure sign of the importance of Alito and Roberts is that one anti-regulation brief, by the conservative Washington Legal Foundation, pointedly cites appeals court writings by both justices that support a narrow view of the commerce clause.

The brief reminds Alito and the rest of the Court of his 1996 dissent as a 3rd Circuit judge in United States v. Rybar, the so-called machine gun case, that Alito was repeatedly quizzed about at his hearing. Alito argued that Congress did not have authority to ban possession of machine guns, and the foundation hopes he will rule the same way on Clean Water Act coverage.

It's worth noting that Sandra Day O'Connor also skewed slightly right on the Clean Water Act. In 2000, in Friends of the Earth v. Laidlaw Environmental Services she agreed citizens could sue for enforcement of the Clean Water Act. But then in 2001, in SWANN v. U.S. Army Corps of Engineers she sided with the majority in an opinion that limited the act. In both cases, Scalia and Thomas lined up against the Clean Water Act. I'm expecting the worst here from Alito and the increasingly rightist Supreme Court. Here's hoping I'm wrong.

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