On Tuesday, the Supreme Court heard oral arguments in the interesting, vexing, and somewhat hilarious case of Citizens United vs. Federal Election Commission. The question before the Court is whether the low-budget hit-piece “Hillary: The Movie” is subject to the financing restrictions of McCain-Feingold, which regulates so-called “electioneering communications.” In other words, is a 90-minute movie slamming a presidential candidate subject to the same restrictions as a 30-second TV spot?
As Dahlia Lithwick notes in her amusing summary of the oral argument, the five conservatives on the Court have been chipping away at McCain-Feingold with relish, and they will likely continue that trend by overruling the district court, which ruled against the filmmakers while relying on the Roberts Court’s own precedents. The government lawyer did himself no favors by taking his argument to its logical limits, agreeing that the government could even place funding restrictions on a campaign biography. He tried to emphasize that he wasn’t talking about banning books, just regulating the financing of them. But leading the justices to think of Fahrenheit 451 is probably not going to win him any friends.
In any case, I have to wonder, as someone who supports much stronger campaign finance laws than even McCain-Feingold, whether the eventual ruling from the five conservatives (and possibly others, like Souter, who were turned off by the government’s extremism) will really be such a bad one. In fact, I am inclined to agree with Justice Scalia, who surmised that “the First Amendment provides ‘heightened’ protection when a campaign message involves an exchange between someone wanting to speak and someone willing to listen.” Perhaps TV commercials are subject to regulation in a way feature films are not because the former are impressed upon unwilling viewers, whereas the latter are only seen by paying customers. The “captive audience” problem has been used on occasion to justify state regulation of speech, although I suppose it might be argued that someone watching TV is not really “captive,” because he or she can always change the channel. (In fact, the great liberal William Douglas made this argument in rejecting FCC censorship of “offensive” radio speech).
Now, even if the Court’s ruling embodies Scalia’s reasonable distinction between TV commercials and feature films, it will still represent another step forward in the judicial emasculation of McCain-Feingold. And those who support campaign finance reform shouldn’t forget that the Court’s conservatives want to get rid of all regulations, including those that might be defended under the “captive audience” doctrine. The present case is an easy one for them: it allows them to demonize the regulators as book-banners, and to raise the specter of government deciding what movies people can pay to see (even though, of course, the government would only be regulating the financing of those movies). Just because they might be right in this instance does not make them right on the bigger issue: whether government, in the interest of promoting a competitive public arena of ideas, can regulate the expenditures of organizations who would otherwise get to have much more “free speech” than everyone else.