I approach the writing of the following sentence with a tightening in my chest and even a little nausea.

I think Supreme Court Justice Antonin Scalia might be right.


Oh man. That felt awful. Gimme a moment to catch my breath. (Gulps some water.) Okay. Whew. Here we go.

Amidst the squeee over Tuesday’s news conference starring President Obama, an idiot CNN gossip journalist and a jittery Chuck Todd, there has not been much reportage or discussion of the Supreme Court case pitting campaign finance regulation against First Amendment expression. As the government argued its case, however, it became clear that the eventual Supreme Court ruling could have a huge impact on not only how corporate money is spent on campaign ads, but on basic principles of freedom of expression.

For those not familiar, here’s the shorter: Conservative group made a 90 minute attack documentary against Hillary Clinton, but in January 2008 a federal court ruled against airing a 30 second trailer 30 days prior to the primaries, as stipulated by McCain-Feingold. Citizens United — a conservative group with a long history of hysterical attacks on the Clintons — produced the film, and the federal judge basically called it piece of propaganda.

Fair enough, it probably is. Here’s one of the trailers for the movie, starring all of your favorite conservative pundits, plus introductory criticism from her current boss (made when they were opponents, of course.)

I’m no Clinton fan, but yeah, they’re loathsome. That said, the whole point of the First Amendment is to allow competing political factions to air opinions that are loathsome to one another. The point of McCain-Feingold, however, is to limit the influence of corporate power in determining the outcomes of elections and in how the winning politician carries out the people’s business. (Can we declare FAIL now?)

Citizens United is a well-financed conservative organization and holds members who are no stranger to corporate influence (Newt Gingrich is a frequent partner), but other than serious ideological disagreements they are no different from, say, MoveOn.Org. As such, they can make all of the Michael Moore-inspired “documentaries” they want, and should, like Michael Moore, be allowed to promote them. Is it a loophole for corporate influence on an election? Yeah, probably, but not a significant one. And no one ever said McCain-Feingold is perfect. (It’s not.)

Yet the government’s argument goes beyond regulating the timing of a 30-second promotional trailer. Indeed, Michael Stewart seems to think that “slippery slope” is an effective technique for arguing his case:

The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

He goes on:

Justice Samuel A. Alito Jr. asked, for instance, whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.

Chief Justice John G. Roberts Jr. asked whether it would make a difference if a 500-page book had a single sentence in it that said “vote for X.” Then he asked about “a sign held up in Lafayette Park saying vote for so and so.”

If corporate money were used to pay for the book or the sign, Mr. Stewart said, Congress would have the power to ban them before elections.

Can you say “overreach”? Here is where I found myself sympathizing with Scalia:

Justice Antonin Scalia said he was “a little disoriented.”

“We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?” Justice Scalia asked.

I don’t know if the government’s lawyer is just an idiot who stumbled into unfavorable legal argumentation or was prodded there by leading questions from the SC’s conservative wing — although those questions seem reasonable to me — but Stewart seems to have torpedoed not only his case, but possibly McCain-Feingold. We’ll have to wait for the court’s ruling later this Spring.

Justices Seem Skeptical of Scope of Campaign Law – NYTimes.com

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