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Scalia’s Bright Idea

Liberals can win by losing in campaign-finance case

By Sam Barr

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?

Thus prompted, everyone involved went into battle mode, taking sides on a question that has been settled, in the negative, for over 100 years. But all five conservative justices might not be willing to eliminate all restrictions on corporate spending, and in any case such a decision would hurt the Roberts Court’s pretensions to deference and modesty. So Justice Scalia suggested that they split the baby: Perhaps communications, like “Hillary: The Movie,” that reach their audience through its direct consent should receive “heightened” First Amendment protection. This would give movies and books a special status relative to, say, television commercials and pop-up ads.

Such a rule would be conceptually consistent with the court’s free-speech precedents. Just last term, a five-man conservative majority held that the government may forbid and punish the airing of “fleeting expletives, on the grounds that sensitive viewers could not avoid broadcast obscenity even if they tried. If you want to listen to George Carlin, the court has said, buy the record and play it in your home; don’t expect to hear it on the radio when kids or non-consenting adults might be listening.

Dismayingly, the Obama administration’s stance in the present case threatens even this limited right to choose what you want to hear, see, or read. In the spring, the government lawyer told the court that the government could ban even a campaign biography, if funded with corporate money, under McCain-Feingold. Even a purely informative documentary, if supplemented with a brief statement in support of a candidate, would count as an “electioneering communication.” These implications, unconvincingly recanted during the second set of oral arguments last month, clearly would violate the First Amendment—not because they interfere with corporate “speech,” but because they get between a willing listener/viewer/reader and the communications he or she is seeking out.

But can one really justify interfering with speech to which the audience has not consented, like political TV ads? Wouldn’t that endanger public protests, which are at the heart of the First Amendment? Liberals recoil at the thought: Surely we still want to protect the man who walked through a courthouse wearing a jacket that said “F--- the Draft,” even though he forced many people to imbibe a message that they found offensive. The rationale for protecting that man is illuminating: It rested on a distinction between public spaces, where one should expect to run into some offensive messages, and the “sanctuary of the home.” We don’t want the government adjudicating every dispute over unwanted public speech. But unwanted communications that penetrate into our living rooms are different: The right to privacy and autonomy in that most personal space takes precedence.

The implications for campaign-finance reform are clear. Corporate electioneering is objectionable not merely because it is corporate, as many liberals assume. It’s the form that this electioneering often takes: invading the home, confronting people with compelling images and scary music, and affecting their votes in the process. If citizens want to see a Hillary-bashing movie, more power to them; consensual viewing couldn’t possibly distort an election. But that’s not true of 30-second spots and unsolicited mailers screaming about Candidate X’s filthy lies or about how Candidate Y wants to kill Granny.

Liberals should remember that we want campaign-finance laws in order to protect voters’ decision-making from influence by corporations, whose spending bears no relation to any pre-existing public support for their positions. Their purpose is not to forbid voters from accessing messages that they deem agreeable. Surprisingly, it took Antonin Scalia to remind us of that.

Sam Barr ’11 is a government concentrator in Dunster House. His column appears on alternate Mondays.

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