UPDATED BELOW: With a White House fact check of the apparent Alito fact check.
Late last night, I wrote about Justice Alito’s apparent fact check of President Obama’s speech. During Obama’s description of the Supreme Court’s Citizen’s United decision, Alito shook his and appeared to mouth the words “not true.” This morning, it appears that Alito may have had a point. Via Ben Smith, I find this explanation from Linda Greenhouse, the New York Times, veteran court watcher.
Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.” 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.
Politifact also takes issue with Obama’s “100 years” comment, by way of a similar comment that was made by Democratic Sen. Chuck Schumer of New York:
We asked Schumer’s staff about the 100-year-old comment, and they pointed us toward a 1907 law called the Tillman Act. They cited the dissenting opinion issued this week, written by Justice John Paul Stevens, that said, “The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907.”
But as we dug deeper into the history of the Tillman Act, the picture got murky because of the difference between independent expenditures and direct contributions.
An independent expenditure means money that corporations go out and spend on their own to portray a particular candidate as unfit for office, or on an issue. A direct contribution means a donation to a candidate’s campaign, for the campaign to spend any way it likes. Corporations may not make direct contributions to federal campaigns from their own treasury; they have to create a separate political action committee, or PAC, for that. The recent ruling did nothing to change that ban.
The Tillman Act said corporations could not “make a money contribution in connection with any election to any political office.” Now, does this mean that independent expenditures are outlawed, or just direct contributions? We looked at several court opinions and legal articles, and everything we looked at suggested that back then, people weren’t thinking of campaign contributions in those terms. And in 1947, Congress came back and passed another law, the Taft-Hartley Labor Act, banning corporations and unions from making independent expenditures.
In fact, much of modern campaign finance laws dates to the post-Watergate period in the 1970s, when Congress passed the Federal Election Campaign Act and a series of amendments. That’s when modern reporting requirements for campaigns were put into place, and the Federal Election Commission was established. A history on the Web site of the Federal Election Commission notes that before this the laws were largely ignored, “because none provided an institutional framework to administer their provisions effectively.”
So what about Schumer’s comments that the Supreme Court “decided to overrule the 100-year-old ban on corporate expenditures.” This glosses over a lot of detail. Yes, it was more than 100 years ago that the first law limiting corporate spending was passed. But we don’t see evidence that the Tillman Act even envisioned a distinction between direct contributions and independent expenditures. And the ban on direct contributions still stands.
In the grand scheme of things, this is all a rather small, technical point, but for a former constitutional law professor like Obama, one would have thought that it was much less small or technical than for the rest of us.
UPDATE: The White House sends around a fact check of its own, defending Obama’s 100 year claim:
CLAIM: That the President was “imprecise” when he said the decision “reversed a century of law.”
REALITY: In 1907, when Congress passed the Tillman Act, it was considered perfectly constitutional to treat corporations differently than people in the context of political activity. This decision changes that century-old legal principle. As Justice Stevens wrote in dissent, “Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907 . . . 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.”