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kyakabuski@globeandmail.com

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When U.S. Supreme Court Justice Samuel Alito mouthed a two-word rebuttal to Barack Obama's criticism of a recent high-court ruling during the President's State of the Union address, he set off a debate about whether one branch of American government has the right to editorialize about another.

It seems fitting, then, that the controversial ruling that had the executive branch unleashing a rare public attack on the judicial branch, and the latter responding (well, sort of) with a dismissive whisper, deals with free expression.

The idea that "Congress shall make no law ... abridging the freedom of speech" is inseparable from Americans' conception of themselves. After all, they don't call it the First Amendment for nothing. Lawmakers had better have an ironclad excuse should they dare to toy with it.

Preventing corporations from spending without limit to elect, or defeat, political candidates might seem like such an excuse. Unless you're part of the Supreme Court's majority conservative wing, which last week struck down bans on campaign advertising by companies in a highly consequential 5-4 decision.

The sudden prospect of Big Oil or Big Coal doling out hundreds of millions of dollars during this fall's midterm congressional elections to defeat candidates in favour of climate-change legislation, for instance, is sending Democrats into fits of fear and outrage.

Mr. Obama has repeatedly denounced the ruling since it was handed down on Jan. 21. He even registered an almost unprecedented - and, according to many, highly disrespectful - objection to the ruling in his Wednesday night speech to Congress, during which three of the judges responsible for the decision were seated directly below the dais.

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations - to spend without limit in our elections," the President charged. "I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Unlike members of Congress, Supreme Court judges always refrain from registering any reaction (other than falling asleep, which happened a few times on Wednesday night) during a State of the Union speech. Their stone-faced demeanour is seen to be in keeping with their non-partisan role as checks on the other branches of government.

But Judge Alito, a staunch conservative appointed by George W. Bush, could not help flinching at Mr. Obama's remark, shaking his head, and breathing what appeared to be the words, "Not true."

For most Canadians, the idea of a corporation being able to run unlimited television ads during an election campaign to, say, encourage electors to vote against a party proposing tough environmental standards, seems downright anti-democratic.

But many Americans do not seem nearly as hung up about the potentially pernicious influence of deep-pocketed special interests on electoral outcomes. Perhaps it's because they're already used to seeing third-party election ads.

"The reason we have the First Amendment is that we don't want the government deciding who's spoken too much or too little," insisted Bradley Smith, a law professor at Capital University in Columbus, Ohio, and a former chairman of the Federal Election Commission, which enforces U.S. campaign finance legislation. "There will always be some people who will have more political influence than others," Prof. Smith said in an interview. "The best way to get more political equality is to increase the number of voices."

Until last week's ruling, corporations and unions could run election-period ads only by setting up a political action committee, which can raise money only from employees or union members, each of whom face a $5,000 cap on annual contributions. Now, Big Business and Big Labour can spend directly from company or union coffers until they're blue in the face.

"I don't think that's what our founders had in mind" when they tabled the First Amendment in 1789, countered Trevor Potter, a lawyer at the Washington firm Caplin & Drysdale who is also a former chairman of the election commission.

On Wednesday, Mr. Obama called on Congress to pass a new law to reimpose spending limits on corporations. But Republicans see little upside in backing this President on anything. Besides, legal experts doubt any legislation would stand a chance of passing muster with a majority of judges, given the Supreme Court's current composition.

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State of the Union poll

A poll of 522 Americans interviewed before and after watching the State of the Union address found 83 per cent approved. Here are some other findings:

13

Percentage point increase in the number of respondents who thought Barack Obama shared their priorities for the country after watching the speech.

19

Percentage point increase in respondents who thought afterward Mr. Obama had a clear plans for creating jobs.

13

Percentage point increase in respondents post-speech who approved of Mr. Obama's health-care plans.

16

Percentage point increase in respondents who approved of Mr. Obama's plans for Afghanistan, after hearing the address.

Source: CBS News/Knowledge Networks poll