Yesterday, the Supreme Court heard oral arguments in Citizens United v. Federal Election Commission . The case concerns whether paying to make Hillary: The Movie available through an on-demand cable service -- which was ruled illegal by the FEC -- should be constitutionally protected. Most initial reports confirm that the only real question is whether long-standing precedents upholding legislative restrictions on corporate campaign spending will be overruled explicitly or sub silento. Although I suppose that at a certain point, pointing this out becomes like continuing to call out the nonexistence of Santa Claus and the Easter Bunny, this case should serve as yet another reminder that conflations of conservative jurisprudence with "originalism" and "judicial restraint" are increasingly farcical. As far as I can tell, neither Scalia nor Thomas has even tried to argue that the First Amendment was originally understood as prohibiting any restrictions on corporate election spending, for the obvious reason that such a proposition would be indefensible. Since I'm not an "originalist," I don't necessarily have a problem with subjecting campaign finance restrictions to constitutional scrutiny. And in this particular case, I think the movie producers have a good argument because a movie is close to "pure speech" and it's hard to argue that making a bad anti-Clinton movie available on-demand will have a distorting effects on elections. My problem, rather, is with the argument -- which a majority of the Court seems ready to embrace -- that contemporary libertarian free speech jurisprudence should be applied to campaign finance restrictions. While campaign spending -- if not "pure speech" -- does constitute a free speech interest, surely Congress also has an interest in ensuring that the wealthy do not dominate elections. In this narrow but important set of cases, a balance between these important rights and interests is more appropriate. And, of course, it should be noted that the conservative majority are hardly First Amendment absolutists in other contexts. I was amused, for example, to see that during oral argument Chief Justice Roberts decried the negative impact of putting "our First Amendment rights in the hands of FEC bureaucrats." Oddly, when it comes to putting our free speech rights in the hands of FCC bureaucrats -- and when no state interest remotely as compelling as fair elections is at stake -- Roberts was untroubled enough to ignore the constitutional issues altogether, and failed to join any of the opinions which raised constitutional concerns. --Scott Lemieux
