By Mike Dorf
As Linda Greenhouse noted, President Obama's criticism of the Supreme Court's Citizen United speech made for an awkward moment and arguably showed why Supreme Court Justices should not attend the State of the Union address. While not quite Joe-Wilson-esque, Justice Alito's shaking of his head in disagreement was itself a mild breach of decorum: If you're going to show up at a political speech by a President who, when a Senator, voted against your confirmation, be prepared to grin and bear--or at least sit stone-faced through--criticism of your recent politics-affecting decision.
Meanwhile, although Justice Alito's head shake is getting a lot of attention, the substantive issue should not be overlooked. And here I do not have in mind the question of what, exactly, the President believes Congress can do to limit corporate influence on politics without once again running afoul of the Supreme Court. That's an important question, but there is a more basic question here: Can President Obama credibly call for change in the role that money plays in politics? His past acts would suggest not.
As I noted in a FindLaw column last fall, the deal that the President struck with the pharmaceutical industry--under which the latter agreed to spend $150 million to advertise the President's health care plan in exchange for capping savings on pharmaceutical expenses at $80 billion--was highly questionable: It showed the President as willing, even eager, to use corporate funds to influence the outcome of public debate. That is exactly the sort of activity that the President criticized the Court for authorizing in its Citizens United decision.
To be sure, it can be said in the President's defense that his deal with Pharma was perfectly legal. If one supports campaign finance reform, one can still do whatever it takes to advance one's policy agenda and to get elected under existing, less-than-ideal, laws. Otherwise, this line of reasoning goes, one ends up unilaterally ceding the field to those who have no such qualms. In this view, legislation limiting the impact of money on politics operates as a solution to a collective action problem. Even when all candidates would rather live in a world with limits on campaign finance, competitive pressure leads them to do whatever the law allows. Thus, a politician who sincerely favors limits on the influence of money in politics may find himself using as much money as possible until those limits are in place.
Whether that argument works in the case of the Obama Pharma deal is open to question. To my knowledge, this sort of deal---in which a target of regulation agrees to pay to advertise for the regulation---was unprecedented. Thus, it is not exactly as though Obama needed to keep up with a political opponent who was striking a different deal. Perhaps the best that can be said is that the White House sought Pharma advertising money to counter what it anticipated would be health insurance money on the other side.
But even if one thinks that the President's street cred on campaign finance was not damaged by the Pharma deal, it's not clear he had much credibility on this issue to begin with. That's because of the President's reneging on his promise to accept public financing, and the limits that go with it, when he was running for office. Obama made the promise when he was running an insurgent campaign. Once it became clear that he could raise substantially more money for the general election than the restrictions would allow him to spend, he changed his story.
Here too, there was at least the fig leaf of a neutral justification: Obama needed to opt out because the Republicans would use their advantage in raising party money, so the restrictions that come with public finance would have unfairly disadvantaged him. That's a poor argument, however, because the Republican advantage was known perfectly well at the time that Obama made the initial promise.
Does this mean that candidate Obama was wrong to reject public funding after promising to accept it? Not necessarily. There were a lot of things Obama wanted to do as President, and breaking the public funding promise may well have been the price of becoming President. Still, it makes him an awkward advocate of campaign finance limits.