In case you missed it, here's a video clip that shows Supreme Court Justice Samuel Alito's reaction to President Barack Obama's remarks about the Citizens United v. FEC decision Wednesday night:
As you'll see, Alito started shaking his head while Obama was talking about the Court reversing a "century of law" and in so doing will "open the floodgates" of corporate spending in campaigns. If it was the first part of the sentence Alito objected to, it could be argued that he has a point: the Court did not go back a century to overturn the Tillman Act of 1907, which bars direct corporate contributions to candidates. Instead, the Court struck down statutes of more recent vintage affecting independent expenditures -- legally different from direct contributions -- by corporations.
If Alito was objecting to the "floodgates" imagery, that remains to be seen. Some commentators have suggested that corporations, not wanting to irritate shareholders and customers, might not throw their money around lavishly in partisan campaigns. Others say that if a door -- or floodgate -- is opened that will allow corporations to exert greater influence over candidates, they will inevitably rush through.
Alito might also have been objecting to Obama's reference to foreign corporations being among those whose money can now start flooding into campaigns. Citizens United explicitly declined to rule on foreign corporations separately, suggesting that government might have a more compelling interest in regulating their expenditures than in checking domestic corporations. Our posts on the references to the Supreme Court in Obama's speech last night appear here, here and here. The BLT also ran several posts on other parts of Obama's speech with ramifications for lawyers and lobbyists.
This article first appeared on The BLT: The Blog of Legal Times.