Archive for January 29th, 2010


Last night, after I got home, I watched the clip of the President Obama using the bully pulpit of the State of the Union Speech to criticize and browbeat the Supreme Court for its ruling last week, and like most people not feverish with partisan frenzy and Keith Olberdrama/Howard Fineman hyperboles and falsehoods screaming in my head about the OUTRAGE!!!11!!1 that the SCOTUS would actually decide that the First Amendment actually means what it says, I was stricken by the brazenness of the action.

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

My initial reaction was one of snark; The “Constitutional Scholar” threatens to again have Congress pass a law that is unconstitutional, so he can show the SCOTUS who is boss.

However, upon reflection, I realize that it was also wrong for other reasons.

To start with, the members of the Court were present as a co-equal branch of government.  Their presence signified a respect for their peers in the other two branches of government, and a respect for the traditions of the Office of the President.  Unlike the opposition party in Congress, they were not afforded time to respond to the uncouth and undignified attack upon their decision, nor would it be in keeping with the nature of the work that they have been appointed to do.  Their role is to apply the law to facts presented and decide what the proper outcome is.  While it would be impossible for them to be with a generic political leaning, there is good reason why they limit their role to the matters presented to them, that being the fact that they are appointed, not elected, for lifetime tenure.  For them to opine into any open microphone on the various matters of the day, whether those matters were before the Court or not, would damage the dignity of the work that they do, and forever damage the sense of integrity that is vital to maintaining the perception of impartiality and the rule of law.  President Obama, as an attorney, is fully aware of this, and still decided to insult his guests in front of the country, knowing full well that their professionalism would prevent them from making anything other than the tamest of responses.  It is the mark of a bully at best, and an extremely immature personality at worst.  But that is not the end.

President Obama is also an honorary member of the Illinois State Bar Association.

As a member, he is subject to the Illinois Rules of Professional Conduct.  These rules exist because the practice of law is a profession, and as such has a sacred trust, as recognized in the preamble to these rules:

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

Why is this important?  Because of IRPC 8.2, which states:

Rule 8.2. Judicial and Legal Officials

(a) A lawyer shall not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or of a candidate for election or appointment to judicial or legal office.  [Emp. Mine]

(b) A lawyer who is a candidate for judicial office shall refrain from conduct which, if the lawyer were a judge, would be a breach of the Code of Judicial Conduct.

These rules do not have a commentary to aid in the interpretation of them, but they happen to mirror the ABA Model Rules of Professional Conduct, which do.  The Commentary states:

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. [Emp. Mine]

[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity. 

[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.[Emp. Mine]

Why does this matter?  Because what the President said was not true, and all he needed to do to know it was read the the Supreme Court Decision, and look up a section of the United States Code for himself, or have a staffer do it.

The Lies:  “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”

The Truth:  The law at stake was 2 U.S.C. Section 441(b).  I won’t bore you with the details, if you want to know more, I suggest you click on the link and then read the decision.  However, the decision correctly pointed out that another subsection of the applicable chapter already addresses expenditures by foreign nationals in our campaigns.

“We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.  Cf. 2 U.S.C. section 441e (contribution and expenditure ban applied to “foreign national[s]”).”

-Page 46-47 of the decision.

2 U.S.C. section 441e states:

(a) Prohibition It shall be unlawful for – (1) a foreign national, directly or indirectly, to make – (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party; or (C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434(f)(3) of this title); or (2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national. (b) “Foreign national” defined As used in this section, the term “foreign national” means – (1) a foreign principal, as such term is defined by section 611(b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or (2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8 ) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8
The pertinent portion of 22 U.S.C. 661b states;

(b) The term “foreign principal” includes –

(3) 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.
Clearly stated, the President lied.  The Court did not open any floodgates to allow foreign corporations to spend without limit in our elections.  It in fact acknowledged the existing statutory limits and did nothing to change them with this decision.  And that “century of law” that was supposedly overturned?  The President cannot count.  The Federal Election Commission was formed in 1975 to regulate campaign finance laws.  None of the cases regarding campaign finance law that were discussed in the Majority decision go back any farther than 1970, and the only case that this decision specifically overturns is Austin v. Michigan Chamber of Commerce, which was decided in 1990.
All of this information was available in the decision.  Rather than recklessly saying something that was obviously false to anyone with a copy of the decision and an internet connection and search engine, he could have taken the time to educate himself, or had a member of his staff prepare a briefing that would have apprised him of the facts, and I find it difficult to believe that he didn’t.   Either he knew what he uttered was not true, or he said it with a reckless disregard for the truth.  Either way, he meant to demean the Court and its decision, in a venue and under conditions where casual observers, sadly, might not be aware that the Court does not answer to Congress or the President for the manner in which it discharges its duty.  As such, it constituted an unjust criticism, and in its falsehoods, the President’s Statements clearly were meant to undermine public confidence in the adminstration of justice.  No other conclusion can be reached when a sitting President can say something so clearly untrue, and get the reaction that he did (as members of Congress stood and applauded his partisan rhetoric).  If I wasn’t a practicing lawyer with a modicum of curiosity, it is certainly likely that I would think that the Court made a serious error of law and or protocol, and perhaps out of partisan interests.  For these reasons, the Illinois State Bar should discipline the President for this breach of the Rules of Professional Conduct. 
Yeah, I know.  I’m not holding my breath either.
I did some more digging.   Apparently, the Illinois State Bar Association does not issue law licenses in the state of Illinois.  That appears to be the function of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, or IARDC.  It adopted new rules of professional conduct for 2010, although the only change to RPC 8.2 is that it also adopted the comment that follows the model rule promulgated by the ABA.  According to IARDC records, the President is “voluntarily retired and not authorized to practice law.”, so I would guess that they will remain silent regarding his breach of RPC 8.2 during the SOTU speech.  The Illinois Bar Association could still admonish him, as he is an honorary member, and the ABA, as the self-proclaimed voice of the profession should still demonstrate that it means what it says and issue a public rebuke.

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