Justice Anthony Scalia made a prediction in 2003 when the Supreme Court heard oral arguments on the McCain-Feingold law in 2003: “if history teaches us anything, [it] is that when you plug one means of expression, the money will go to whatever means of expression are left.” The case the Supreme Court heard on Wednesday, Citizens United v. Federal Election Commission, shows that Justice Scalia was right.
The case focused on a movie released during the 2008 presidential campaign, “Hillary: The Movie.” It doesn’t explicitly advocate that Hillary Clinton be defeated in her bid for the presidency, but no one watching the movie will come to any other conclusion. Should the movie’s costs count as a campaign expenditure? Campaign finance laws limit how much can be donated to a campaign, but if organizations such as Citizens United can make movies attacking the opposing candidate, what is the point of donation limits?
The Federal Election Commission’s answer: ban the showing of the movie and the TV ads promoting the movie. The McCain-Feingold election law greatly restricted the use of third party spending to help candidates. On radio, television, cable TV, or satellite broadcast such spending was banned for 30 days before a primary election or nominating convention, or within 60 days before a general election. Yet, the notion that the government can ban the showing of movies or ads for the movies would strike many as objectionable.
Consider some less blatant example. Suppose instead of attacking a candidate, some movies attack positions that other candidates support? Or what about television shows that make claims about health insurance or gun control right before an election? Are the courts and the Federal Election Commission supposed to pre-screen and approve those movies and television shows?
And now suppose that all third party expenditures were also banned — no inappropriate movies or TV shows, no campaign ads, no issue ads, no independent efforts to register voters, no independent studies released to try to influence public opinion. Would that really remove all third party voices? Not likely. George Soros could still buy a television station or newspaper. The National Rifle Association could still operate a satellite radio station. And General Electric would still own NBC allowing it to support a favored candidate with positive news stories.
And then there is the issue of books. Has anyone noticed how candidates come out with books around election time? The publisher pays for all the advertising for these books and attendant book tours. Candidates’ supporters also tend to write books. Do we need a government bureau to read books and decide whether they can be sold and promoted during certain dates?
When the case was first heard earlier this year the attorneys from the Federal Election Commission who argued the case claimed that the government had the power to regulate distribution of books. Solicitor General Elena Kagan disavowed that position on Wednesday, but when Chief Justice John Roberts asked her about pamphlets, here’s what she said: “A pamphlet would be different. A pamphlet is pretty classic electioneering.” Is the government going to have a word limit that lets bureaucrats decide when something goes from being a “pamphlet” to a book?
How long would that last?
Public financing of campaigns would not solve this problem. Books, movies, and TV shows can still be made even when public financing is used for campaigning.
Campaign finance regulations don’t promote fairness. They twist and distort. Government regulations fail to halt campaign expenditures and simply lead to more and greater regulations.
Unless the Supreme Court steps in forcefully and throws out these campaign finance laws, we will risk not only having the government regulate the content of movies, but also TV shows and books, just in time for our next national election.
John Lott is an FOXNews.com contributor, economist and author of “Freedomnomics.”
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