Published January 22, 2010
Do you want government regulating what movies can be shown to the public? Do you want the government determining what movies can be advertised? Or what books can be sold? Well, the Obama administration actually argued for these regulations before the Supreme Court in defending campaign finance regulations. Actually, they went even further and said that such regulations were essential to limiting how much money is spent on political campaigns.
Fortunately, the Supreme Court disagreed. On Thursday, in the case Citizens United v. Federal Election Commission, the Supreme Court struck down a law that had been used to stop the advertising or showing of "Hillary: The Movie" during the 2008 presidential campaign. No one doubts that the movie was critical of Hillary Clinton and that its release was timed precisely to hurt her presidential campaign. What the court couldn't abide was letting the government decide when a movie crossed the line and became too political. The ruling eliminates bans that corporations and unions have faced in trying to influence elections 30 days before a primary election or nominating convention, or within 60 days before a general election.
Campaign finance laws aim to restrict how much money can be spent on campaigns, but, just as Justice Antonin Scalia warned in 2003, “expenditures” can take an essentially unlimited number of forms. "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," Scalia warned during oral arguments when the McCain-Feingold law was first heard before the court in 2003.
Suppose that a company or a union can't take out radio or television ads supporting a candidate. It still has other options: It can produce a critical movie, such as "Hillary: The Movie," or publish a critical book. Authors making the rounds of radio and television shows during their book tours can help provide information that supports one candidate over another.
Indeed, when President Obama's Deputy Solicitor General, Malcolm Stewart, first argued the case "Hillary: The Movie" before the Supreme Court last March, Justice Samuel Alito asked him if the government could prohibit companies from publishing books. Stewart said that was indeed possible. "That's pretty incredible," Alito responded, and then he pointed out that most book publishers are corporations.
"If [the book] has one name, one use of a candidate’s name, it could be covered?” Chief Justice John Roberts then asked. And Stewart replied: “That’s correct.” “It’s a 500-page book, and at the end it says, so vote for X. The government could ban that?” Roberts asked. Again, Stewart said yes.
When the case was reargued before the Supreme Court in September, Stewart was replaced by Solicitor General Elena Kagan. Kagan, realizing that the court was shocked by Stewart's statements, said that pamphlets, not books, could be banned. 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." But Kagan's answer is hardly comforting. 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?
Of course, those are not the only ways around corporate bans on political advertising. If you want to limit corporations’ influence on elections, what do you do about companies that own newspapers and television news broadcasts? Why is one company that owns a newspaper able to write editorials or publish "news" stories that help one candidate but another company isn’t even able to buy a political ad in that very same newspaper?
Right now, one television series after another somehow works into its story lines a sad tale highlighting the plight of those without health insurance. And these kinds of plot lines don’t just show up in medical dramas. Even crime shows, such as CBS's "CSI: Crime Scene Investigation," have gotten into the act. Many would argue that TV dramas provide an inaccurate view of the medicine available to the poor and while other might argue that the shows do a good job, but that isn't the point. The shows are obviously trying to influence public policy. Do we need to assign Federal Election Commission's lawyers to watch hours of television programming just to ensure that no political candidates benefit from the message in these shows?
Campaign finance regulations that limit donations or campaign expenditures also have another downside: they entrench incumbents. It is a lot easier for incumbents, who have had years to determine who their actual and potential donors are, to raise small amounts from a lot of donors. It is also a lot more important for a relatively unknown challenger to spend money on his campaign than it is for the incumbent.
Take the obviously extreme example where campaign expenditures are banned. Clearly, the already well-known incumbent would be virtually assured of winning.
Some states allow corporate and union contributions to candidates. Other states follow what has been the federal law banning those donations. Out of all the different campaign finance laws that have the biggest impact on whether candidates choose to run unopposed are the restrictions on individual and corporate donations to political parties. Regulations governing donations by individuals to political parties and corporate and union to candidates produce the biggest benefit towards protecting incumbents from electoral competition and increasing the probability that they will win re-election. Restricting corporate donations to individual candidates also reduces the number of candidates running for office by the largest amount.
President Obama is already moving to overturn Thursday’s Supreme Court decision. "I am instructing my administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision," President Obama warned after the ruling.
But is this the type of country we want to live in? It is not just health care that the government wants to take over. Now they want to restrict what information we can receive. The very fact that a high-ranking administration official argues for banning certain books right before an election is scary and reminds us of the Chinese Government’s attempt to restrict Google, not of free debate in a free country.
John R. Lott, Jr. is an economist and FoxNews.com contributor.