Oct. 5, 2009
Even Antonin “Just ’Cause You’re Innocent Doesn’t Mean We Can’t Execute You” Scalia sometimes has good ideas. This spring, during the first set of oral arguments in the controversial “Hillary: The Movie” campaign-finance case, Justice Scalia floated a novel constitutional approach that would favor the Hillary-hating movie producers but also provide campaign-finance laws with a stronger footing—at least in my estimation. Because everyone knows Scalia didn’t really mean it, his suggestion has gotten short shrift among mainstream commentators. That’s a shame, because Scalia’s idea, even though it probably won’t be reflected in the final decision, reminds us why we want campaign-finance laws in the first place.
First, a little background. McCain-Feingold prohibits using corporate funds to produce and distribute “electioneering communications” in the heat of an election season, and “Hillary: The Movie” is pretty clearly the sort of communication the law had in mind. As Justice Breyer clucked, “it is not a musical comedy,” but rather political advocacy tantamount to saying, “Don’t (for the love of God) vote for Hillary Clinton.” Ditching their attempt to mischaracterize their own film, the producers refocused the court’s attention on the broad constitutional question: Shouldn’t corporations be allowed to spend and say whatever they want in the hopes of influencing an election?
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