State of the Union Ethics Alarms

President Obama’s State of the Union message didn’t quite set off accusations of mendacity on the scale of President Bush’s yellow cake uranium comment in 2003, and Rep. Joe Wilson didn’t yell out “You lie!” (thanks for that, Joe), but the President did make some assertions that, if not intentionally inaccurate, were recklessly misleading. The most striking one was contained in the President’s attack on the recent Supreme Court decision in Citizens United v. Federal Election Commission He said:

“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.”

This prompted Justice Joseph Alito, sitting with his colleagues, to say quietly, to himself or to Justice Sotomayor who was next to him, “Not true, not true.” And he was right: much of the statement wasn’t accurate. (Was Alito’s mouthed protest any sort of civility breach? No. Obama couldn’t see it; it is possible nobody heard it at all. Justice Alito was not mouthing the words for lip-readers in the television audience. No ethics foul. However, Alito may want to practice his poker face in the future.  Next time, he won’t be so surprised: for a President to directly criticize the Supreme Court in his address is almost as rare as a Congressman shouting “You lie!”)

Indeed, the question is whether President Obama crossed the line from rhetorical hyperbole into intentional deception designed to produce a public backlash against the Opinion that can be converted to legislation. The Opinion did not “reverse a century of law.” In its “Fact Check,” the St. Petersberg Times traces the claim to Democratic talking points, and shows that it is deceitful. “We also don’t want to downplay the historical importance of the Citizens United ruling,” the Times writes. “The Citizens United case does overturn some notable precedents and laws. The majority opinion specifically said it was overturning a 1990 precedent, Austin vs. Michigan Chamber of Commerce, which said that the federal government could regulate corporate spending as laid out in the reforms of the 1970s. You could also argue that the Citizens United case overturns the campaign finance portion of the 1947 Taft-Hartley Act.” The “century of law” Obama mentioned starts at the Tillman act in 1907, which banned direct corporate support of candidates. But, the paper says, in an understatement, this “ignores the fact that the ban on direct donations from corporations to campaigns still exists.”

So the President exaggerated, misrepresented, was in error, or dishonestly manipulated public opinion by misstating the facts. Which was it? It depends on your point of view.

Then there is the President’s assertion that foreign corporations will “spend without limit.”  The majority opinion explicitly declined to address the laws regarding foreign companies, and they are unchanged by it. The Opinion does open up the possibility that foreign corporations could influence future elections through now-legal expenditures by their subsidiaries. Here the President’s version of the facts is plausible.

Over all, both President Obama and Justice Alito came close to crossing ethical lines during the State of the Union address, but stopped short. Ironically, one near-ethics breach may have cured the other. Alito’s YouTube-captured dissent spurred a closer examination of the President’s less-than-accurate characterization of the controversial decision, so the real facts are readily available to the public.

6 thoughts on “State of the Union Ethics Alarms

  1. In my opinion, both men were wrong, but president Obama was more wrong. He may not agree with the decision, but his commentary on it, right or wrong, was inappropriate to the occasion and outside the power of the Presidency or the Congress to cure. Only a constitutional amendment can undo the Supreme Court, and Obama, as a constitutional lawyer, should well know that.

    Did he propose an amendment? No. He proposed an end-run, and then made a populist criticism that characterized the Supreme Court as an out-of-control institution. That is both disrespectful of the Court, and absolutely beneath a solemn occasion such as a State of the Union address.

    Alito should have remained stone-faced, but he could not remain above a comment that was facially incorrect and acted to impugn the institution of the Court. That’s too bad, but I think that you are exactly right that one unfortunate action may have undone the effect of the other.

    Presidents should not criticize the other institutions of government in the State of the Union address. I hope that the precedent (at least in modern times) set by president Obama last night is rejected by the public, and that we demand more class and less petulance from our Commanders in Chief. That kind of rhetoric belongs on the campaign trail, not in the SOTU.

  2. I am constantly trying to separate political opinion from ethics commentary, and often not to successfully, according to some. I felt that Obama’s attack on the Court clinched a verdict that this was a desperate performance in which he was determined to look combative and resolved. As is often the case when we try to act contrary to our nature, he over-acted.

    • That’s a good point. I don’t mean to be too hard on the president, I do think he meant well in the sense that he sees this as a very grave concern. I appreciate that, and I feel like my comment was a little too harsh in that regard, upon reflection.

      Still, I would love our presidents to elevate themselves above sharp criticism, particularly where he has no power to cure the problem other than as persuader in chief. It’s not constructive, and Congress can no more undo the Court’s decision than he can. It would be similar to a Republican president chastising the Court for upholding Roe v. Wade again — divisive, but unhelpful.

      • I agree with that. Attacking the Supreme Court is also dirty pool, in effect, because the public really doesn’t understand its role or its decisions. For example, the Court didn’t “make abortions legal,” and overturning Roe wouldn’t make them illegal. About 1 in 10 comprehends that. (About 1 in 3 Senators do.)

  3. The whole statement is made even more factually insupportable since the court went out of it’s way to state that striking down existing barriers on foreign companies fell outside the realm of their decision (and thus had no bearing).

    It seems likely Obama would have supported his comments by arguing that the ruling had the “potential to” lead to foreign investment, but it’s still misdirection. At best, he simply overstated his point and, at worst, he was lying.


    For more on this see:

    • It is the kind of thing that is especially disturbing coming from a former expert on Constitutional law. Obama knows what the opinion means. He should be trying to make sure the public understands it, not intentionally distorting its meaning.

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