In the strictest sense, a ‘foreign corporation’ is limited by the sections of the US Code he points to. However the important question is what the code calls a ‘foreign corporation’, and what exactly it can and cannot do.

According to 2 US Code 441e it is unlawful for a ‘foreign national’ to expend funds on an electioneering communication (essentially defined through 2 U.S.C. 434, as broadcast, cable or satellite communication used in express advocacy).

However, ‘foreign national’ (per 22 U.S.C. 611)is described in one sense as : “a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country”. As such a corporation is exempt if it “is not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States”.

The problem I see here is that a corporation may be registered under the laws of the United States, have its principal “place of business” in the United States, and still be regarded as a ‘foreign corporation’ by most reasonable observers.

Justice Ginsburg in the original argument before the Court was concerned by the potential for a corporation to make expenditures in a federal election when a large minority, or indeed a controlling majority, of its shares are owned by foreign nationals, or indeed governments (i.e. US subsidiaries of foreign corporations).

I may be mistaken, but post Citizens United the law no longer prevents this kind of de facto ‘foreign corporation’ from expending funds in support of a candidate in a federal election.

PolitiFact investigated this claim:

http://www.politifact.com/truth-o-meter/statements/2010/jan/27/barack-obama/obama-says-supreme-court-ruling-allows-foreign-com/

I don’t ultimately agree with their characterization of Obama’s statement, but when they say:

“That uncertainty could indeed provide a loophole for spending unlimited amounts of money on politics. But even that interpretation is not a slam dunk. Federal Election Commission regulations say that a foreign national cannot “direct, dictate, control, or directly or indirectly participate in the decision-making process” for spending money for political purposes, a principle that could keep the critics’ worst-case scenario from coming true, said Tara Malloy, an associate counsel with the Campaign Legal Center. What that FEC regulation means for political spending by a foreign-owned company is far from clear.”

I must say that Tara Malloy’s response is not very persuasive. FEC regs are easily side-stepped. A “foreign corporation” need not ‘directly participate’ in the process. The members of the US subsidiary need only look out for the best interests of their business, which is intricately linked with the interests of the ‘foreign’ corporation, and spend the money how they see fit.

The fact is that this is a gaping loophole. Some flimsy FEC regulation about ‘participation in the decision-making process’ will not prevent US subsidiaries of foreign corporations from spending to support the interests of foreign nationals, and foreign governments in United States federal elections. That IS a consequence of Citizens United.

leo marvin: You’d never know this is the same site where some commenters have all but advocated violence against our left-wing black robed masters.

L know! I keep thinking, “But..but, they are the Black Robed Tyrants.”

Lol. Seriously man, get a grip.

Prosecutorial Indiscretion: Reality check: The Obama tax cuts are real and much more broadly enjoyed than the deficit causing Bush very high end tax cuts. You may like the latter, as do the R’s and some D’s, but that doesn’t negate their disastrous effects. Sorry.I’m still skeptical that giving more money to people who don’t pay taxes should be counted as “tax cuts.”

“who don’t pay taxes”
Never heard of a sales tax, gas tax, excise tax, food and beverage tax, or a utilities tax, I take it?

Swan Trumpet: [Quoting Dartmouth opinion by John Marshall] Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered the same, and may act as a single individual.

Ok, but that doesn’t get you to whether for-profit corporations have a right to political advertising. One can only get there by arguing that political speech is incidental to the very existence of corporations within our framework. Marshall was addressing in his opinion questions of corporate rights to engage in contracts in the same way that individuals did.

I think that political speech is incidental to the existence of a corporation. Some on this board disagree with me and don’t think any speech is. However, as long as corporations have first amendment rights to petition government, it seems untenable to argue that they don’t have electioneering rights. There are other issues as well, where electioneering and commercial speech might be mixed.

For example if I had sold “Regime change begins at home” T-shirts urging that voters reject Bush in 2004 prior to the election, why should it matter, as a Constitutional matter, whether I do this as a sole proprietorship or a sub-S corporation?

I am personally in favor of restrictions on corporate electioneering over the airwaves only (and not including satellite tv/radio). I think that such a restriction would help provide less of a capacity for large corporations to monopolize the marketplace of ideas. However, pamphlet printing, cable and satellite tv, web sites and blogs, etc. should all be entirely protected. I also think the above restriction should not include advertisements for purchasing electioneering products.

I think such a rule would be in support of a compelling state interest and it would be narrowly tailored to meet that interest.

This is, I’m sorry, part of the “state of the union,” and was quite germane. And, guests I assume should not be “rude” either, including grimaces or muttering when they don’t agree with their hosts.

As to some who note some inability to respond, truly silly. This after the SC overturned legislation and explained why. They also repeatedly “respond” to governmental lawyers, at times quite sarcastically, and they are a mere few feet in front of them.

Again, this is tres silly.

Sigh. A core criticism, rightly or wrongly, is that Justice Alito is not a “member of Congress,” the constitutional audience of the SOTU, but a judge who has a higher responsibility. It is honestly depressing that there is so much missing the point here. You can disagree with the critics, but at least truly answer them.

Also, I respect Alito’s skills up to a point too, but again, there has been signs of bad blood already, which again, has been noted by some commentary. For instance, failure to show up when Obama made a courtesy visit to the SC. Even if this is a lesser issue to respond to, is it really that hard for him to realize, not be “naive” about, that if he is going grimace or appear to mutter under his breath, that the camera will pick it up?

Notice how justices generally “naturally” or not, manage to look judicial at these affairs. Was he really shocked that Obama would bring it up and put forth a view as some note here on the same level as the dissent? Give me a break. I really don’t care too much, though the sensitivities of the ruling really warranted Alito to take care (somehow, Roberts and Kennedy managed to do so … are they somehow special?) not to in effect act out at the SOTU.

BTW, the criticism, including from no comment Randy Barnett, of Obama is really lame as shown by some comments from even those on this thread who have no use for the man. Oh no! He criticized the Supreme Court! And, they were there!!!! Blasphemer!

The court always wins in the long run for two reasons: first people get nervous and don’t like it when they see or feel that politicians are directly trying to exert control over the third and supposedly independent branch of government – it rings warning bells in their heads – and second the court wrongly or rightly is seen as more principled and less partisian than the congress and executive branches – meaning that even if people believe that the court may have an agenda of sorts – they still believe that the justices try to comply within limits to the constitution.

And just like it takes Nixon to go to China, it takes a clear Obama supporter to note that the Stevens dissent was clearly wrong, making Obama a liar for repeating one of the arguments therein!

How DARE Obama bring a political court decision into the SOTU! I hear he eviscerated the ruling, which is very cruel! What happened to the rule of law? IMPEACH!

Where did you study, or what sort of practice have you been in for 30 years, where you’ve been working on the issue of what is, or is not, boorish presidential conduct?

If they had offered that course at my TTT, I would have taken it!!

If we’re going to debate the ruling, which was not the point of this thread, there are plenty of good places to do it. Personally I find Justice Stevens’s explanation as to why media corporations are exempt to be remarkably unconvincing (GE?).I am also puzzled at the lack of outrage at the ruling’s application to labor unions (yes, that is sarcastic). Also, law firms are very significant participants in political campaigns and many of them are corporations, you know.

But that’s another issue. The question is simply whether the president behaved appropriately or shamelessly. I know of no one who gave a damn about his condemnation of this ruling in his recent media interview,and in much stronger terms.The issue is time, place, context– and class, in the sense of conducting oneself in the proper way, with respect not for individuals but institutions.

Like most of the president’s backers, you give him a pass for what those of us who have practiced law for over 30 years were taught was not only boorish behavior, but contemptible grandstanding.Once again, if those are the new rules, fine. Let’s declare them to be that, and proceed in future SOTU’s to eviscerate rulings by name–even those of the individual justices who write them. It will be amusing to see the worm turn.

Surely you are not comparing a comment thread on VC to a State of the Union address?

Only after adjusting for quality of competition.

Alito for president in 2012!

‘

What’s not to like?

Alito, although a smart and well-meaning person, would be unlikely to win. And if he won it wouldn’t be the end of the world.

Most important, his departure from the Supreme Court would generate another Obama nomination, moving the Court toward a more reasonable Democratic-Republican balance.

Run, Sam, Run!

o:
he has not cut any meaningful taxes.he’s provided rebates or credits.nothing that actually spurs economic development.he’s continuing the same sort of useless manuevers with his latest small business plans… not tax cuts, but TEMPORARY credits that do NOT spur economic development.if you want to spur economic development and get out of a recession on a good footing, cut taxes for everyone.stop trying to bleed rocks dry.you cannot continue to increase taxes on the $250k+ crowd and expect economic activity to increase.it is the $250k+ crowd that has money to invest in new economic activity, not those that receive more from the IRS than they give.

As I recall the taxes of your target group were cut hugely in 2001. Things ended badly. When were these taxes increased?

o: TEMPORARY credits that do NOT spur economic development.

Yeah! Who thinks putting money in the hands of the middle class is stimulative?! You need to give it to the wealthy, who are well known as types who spend all their money!

Constantin: biggest affirmative action case of all-time.

Yeah, Obama didn’t earn it! I know cause he’s black and I didn’t vote for him!

Chris Travers: I don’t think this is a fair summary of John Marshall’s views or those of the current court. Marshall wrote that a corporation only obtained the legal protections and rights either expressly granted or incidental to its very existence.In short there is a big difference between saying that corporations must be afforded equal protection under the laws, due process of law prior to fines being levied, and free speech (certainly in commercial settings, and I would argue in political settings as well), and saying that a corporation is afforded all the rights of a person born in this country.Also, I noted that the Stevens dissent in Citizens United really didn’t offer an alternative decision. They just said they didn’t like the decision offered. It was the strangest dissent I have ever read…..

Justice Stevens ought to retire. In recent talks, he’s been rambling, forgetful, and at times, almost incoherent.

As to the accuracy of my comments regarding Chief Justice John Marshall’s views that a corporation may act as a single individual, here’s the entire Marshall quote: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered the same, and may act as a single individual.”

There’s also the fact that many corporations are owned by single individuals or partnerships. They are taxed at a much higher level than individual tax rates. In 1776 we fought a revolution over taxation without representation and this is precisely what Citizens United was about. Why should a meat-packing company be prohibited from running an advertisement informing voters that the election of a vegan PETA candidate would be damaging to the company? This goes straight to the heart of the first amendment’s free speech clause. In the marketplace of ideas, political speech from all interested parties, especially those that carry the heaviest tax burden can’t be suppressed without trampling the Bill of Rights.

rpt:
Reality check: The Obama tax cuts are real and much more broadly enjoyed than the deficit causing Bush very high end tax cuts. You may like the latter, as do the R’s and some D’s, but that doesn’t negate their disastrous effects. Sorry.

he has not cut any meaningful taxes. he’s provided rebates or credits. nothing that actually spurs economic development. he’s continuing the same sort of useless manuevers with his latest small business plans… not tax cuts, but TEMPORARY credits that do NOT spur economic development.

if you want to spur economic development and get out of a recession on a good footing, cut taxes for everyone. stop trying to bleed rocks dry. you cannot continue to increase taxes on the $250k+ crowd and expect economic activity to increase. it is the $250k+ crowd that has money to invest in new economic activity, not those that receive more from the IRS than they give.

John Moore: Obama lied.Alito sighed.Liberals cried.

Any combination of those could work…

Constantin:
This criticism, making the rounds, is pretty rich coming from supporters of a president who is the biggest affirmative action case of all-time.

If by “biggest case” you mean “strongest recommendation for,” then on that part of your comment we agree.

The majority opinion took great pains to make clear that the ruling did not affect the current laws against foreign funding for campaigns and electioneering.

You’re not reading his statement very well. He said that he believed the ruling “will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.” The fact that the ruling may not have affected foreign funding now is irrelevant even if it’s true.* He made a prediction.

In order for your statement to be correct, the only alternatives are to believe Mr. Obama was sharing his beliefs on a Court opinion he had not read and his many well-paid fact-checkers on the public dole hadn’t bothered to read either.

No, there’s the alternative that you didn’t read it correctly.

Either he lied, or was speaking about an opinion he hadn’t bothered to read. you choose.

I choose to believe that you’re more interested in partisanship than accuracy.

*It’s almost certainly untrue, as loki13 pointed out in another thread, but I’ll assume it is true for now.

Alito sighed.

Liberals cried.

In fact, it seems everyone who disagrees with Swan Trumpet, is a liar and/or incompetent!

Perseus:
My series of comments on this topic have been about constitutional forms and institutions, although I realize that hyper-partisans reduce everything to party partisanship.(As for Governor McDonnell-not to be confused with Senate Minority Leader McConnell–I presume that the GOP image-makers believed that a multi-ethnic group of people sitting behind the governor during his address would suffice. But if it’s fine to dispense with propriety, perhaps Justices Thomas and Scalia should have attended to add to the multi-ethnic rainbow.)

Those multi-ethnic people are members of Virginia’s cabinet.

This criticism, making the rounds, is pretty rich coming from supporters of a president who is the biggest affirmative action case of all-time.

Swan Trumpet: The Citizens United majority opinion reaffirmed the views of our Founder and fourth Chief Justice, John Marshall, who wrote that a corporation may act as a single individual.

I don’t think this is a fair summary of John Marshall’s views or those of the current court. Marshall wrote that a corporation only obtained the legal protections and rights either expressly granted or incidental to its very existence.

In short there is a big difference between saying that corporations must be afforded equal protection under the laws, due process of law prior to fines being levied, and free speech (certainly in commercial settings, and I would argue in political settings as well), and saying that a corporation is afforded all the rights of a person born in this country.

Also, I noted that the Stevens dissent in Citizens United really didn’t offer an alternative decision. They just said they didn’t like the decision offered. It was the strangest dissent I have ever read…..

I’m still skeptical that giving more money to people who don’t pay taxes should be counted as “tax cuts.”

Mr. Obama’s presidency is an embarrassment to Harvard Law School. They need to revisit their admission criteria and start weeding out the incompetents

.

Well, it would provide more room for legacies.

Swan Trumpet:
There have been no tax cuts. Mr. Obama did give out a one-time $600.00 rebate to those whose incomes are so low they pay no federal income taxes, and a few targeted tax credits aimed at first-time home buyers, cash-for-clunkers, etc.Republicans have been urging Mr. Obama to extend the Bush income tax cuts due to expire this year, and Mr. Obama has no plans of doing so. Liars don’t get applause simply for lying creatively.

Reality check: The Obama tax cuts are real and much more broadly enjoyed than the deficit causing Bush very high end tax cuts. You may like the latter, as do the R’s and some D’s, but that doesn’t negate their disastrous effects. Sorry.