Speaking of Justice Alito's head shake

From an article by Doug Kendall at MSNBC (click on the link to read more)...

But It Is True, Justice Alito

In fact, Obama's carefully-phrased comment to the justices highlights two critical aspects of the majority's decision in Citizens United v. FEC, both of which constitute dangerous and revolutionary shifts in long-settled law:

1. The Court ruled that the First Amendment makes no distinction among speakers -- that the identity of a speaker makes no difference for purposes of government regulation of speech. As Justice Stevens pointed out in his dissenting opinion, this logic leads to some remarkable conclusions: "Such an assumption would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders." Stevens also clearly explained that the majority's logic "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." This is truly an unprecedented reading of the Bill of the Rights that could have consequences that reach even beyond campaign finance law. By eliminating any distinction among speakers, which, as Obama noted, has been recognized for at least a century, the Court hinted that any regulation that distinguishes between corporations and individuals may be problematic -- raising the question of what other rights currently reserved for citizens the Court might soon extend to corporations. As Stevens noted in his dissent, under the majority's logic, "it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."

2. To make matters worse, the Court dramatically redefined the meaning and standard of "corruption," ruling that only the strictest and most direct forms of corruption -- e.g. bribery -- are prohibited, and not, as was previously the standard, any "appearance of undue influence." This critical component of last week's decision redefined the boundaries of what constitutes corruption and made influence by special interests significantly more difficult to prove. More important, the ruling, as Obama precisely indicated and as Senate Judiciary Chairman Patrick Leahy (D-VT) fervently reiterated this morning on the Senate floor, appears to sweep away vital barriers that were keeping foreign special interests, such as Toyota, from manipulating American elections. If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn't spend endless amounts of money to influence U.S. elections. Under the logic of the Supreme Court's decision, just as Exxon can now spend millions to oppose a candidate who, for example, supports the climate bill, so, too, could Toyota or other foreign companies.

If Justice Alito wanted to disclaim any of this, or if he thought that the majority's opinion was not as far-reaching as Justice Stevens' powerful dissenting opinion demonstrated, he should have written a concurring opinion. He should have explained how the logic of the Court's opinion doesn't change course on over a century of campaign finance law that seeks to limit corporate influence in elections and showed us that the Court's formalistic approach to the First Amendment and corporations won't lead to foreign corporate spending in U.S. elections. But muttering at the State of the Union clarifies nothing.