On a March night in 1965 President Lyndon Johnson addressed a joint session of Congress. A few days before, African-Americans in Selma, Alabama had clashed bloodily with police. The marchers were asking for the right to vote.
"Their cause must be our cause too," Johnson said. "Because it's not just Negroes, but really it's all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome."
The packed House chamber was rent by applause. Several Supreme Court justices, also in attendance, stood and cheered the president.
Those were the days.
Last week from the same rostrum, President Obama chided members of the Supreme Court during his State of the Union speech for their holding in Citizens United v. FEC, banning limits on corporate campaign contributions.
"The Supreme Court reversed a century of law," the president said, "to open the floodgates to special interests--including foreign companies--to spend without limit in our elections."
It was only the ninth time a president so much as mentioned the Supreme Court in a State of the Union since Woodrow Wilson began the modern practice of an in-person address in 1913. It is rarer yet for a justice to visibly respond to a president's remarks. But Samuel Alito, who voted with the majority in Citizens United, shook his head and mumbled, "Not true."
It was an extraordinary exchange, and if President Obama was wrong on the facts, he was still right on the money.
The law President Obama referenced was "enacted in the populist days of the early 20th Century [and] prohibited direct corporate contributions to political campaigns," says former New York Times Supreme Court correspondent Linda Greenhouse. "That law was not at issue in the Citizens United case, and is still on the books."
Citizens United did overturn 2 U.S.C. ยง 441(a)--added to federal law in 1990--which prohibited all corporate spending. Now, corporations can spend on campaigns directly from their treasuries rather than forming political action committees.
Moreover, the president's aside about foreign companies was a cheap shot. The 1996 Foreign Agents Registration Act prohibits independent political commercials by foreign nationals or foreign corporations. But the president knows saying foreigners might buy American elections is a good way to score protectionist political points.
Despite these pratfalls, the president was right to lambaste the Court in that forum for a poorly written, poorly reasoned opinion.
Usually, the Supreme Court drafts dependably narrow opinions. They don't want to foreclose nuance in similar but distinct cases to come. In Citizens United, they were asked to mediate a dispute between a corporation-funded "documentary" designed to dismember Hillary Clinton's presidential campaign and the Federal Election Commission.
Not only did the majority settle the matter at hand, it wrote so expansively that all other limits on campaign contributions seem challengeable.
"The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media," the Court wrote. What now is off limits on TV?
Conservative media have stood behind the Court. George Will, who rightly blasted Sen. John McCain during the 2008 election for grossly oversimplifying Court history, called the left's reaction to Citizens United a "torrent of hyperbole." After President Obama took the Court behind the woodshed last week, the Wall Street Journal editorialized that the president is "a sudden convert to stare decisis."
"Does he now believe that all Court precedents of a certain duration are sacrosanct," such as Plessy v. Ferguson and Bowers v. Hardwick? Clearly liberals have no monopoly on hyperbole.
In Citizens United's wake bobs a question: now what?
"Let candidates receive unlimited--but fully disclosed--contributions," George Will wrote. "Trust voters to make appropriate inferences about the candidates." George Will has obviously never seen any of Jay Leno's "Jaywalking" sketches.
More serious ideas are floating around, too. Al Franken has proposed strengthening the limits of foreign contributors in American elections. (What does it say about a political debate that Al Franken is coming up with the more serious ideas?) Dick Durbin has proposed a public financing plan that rewards candidates who collect many small donations. Arlen Specter has proposed banning political contributions from corporations holding federal contracts.
Free speech and fair elections are not mutually exclusive. Congress and the president must work harder and more creatively to proscribe boundaries where both can flourish. They should not count on this Supreme Court for any help.
Phil pays attention to developments in the law so you don't have to. Email him suggestions or thanks at rg@umich.edu.

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