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Shutting It Off: Super PACs and Justice Scalia

Liz Kennedy

Credit: stephenmasker Flickr

Can candidates work together to prevent the domination of the airwaves by outside attack advertising? Will voters, if they don’t like the ads, just shut off their televisions? Or will voters, sick of the constant barrage of garbage, tune out from the political process altogether?

It was reported yesterday that Elizabeth Warren and Scott Brown have pledged to curb ads by outside groups in an attempt to spare Massachusetts the kind of negative attacks that have flooded the airwaves of Iowa, New Hampshire, and South Carolina.  In coming to this agreement Warren wrote “we can set an historic example in Massachusetts and give the people we want to represent an opportunity to make a choice free from the kind of out-of-control, outsider advertising that has plagued so many recent elections."

But all of this is just fine with Justice Scalia, who opined this weekend “I don’t care who is doing the speech – the more the merrier. . . . People are not stupid. If they don’t like it, they’ll shut it off.”

That is exactly right, unfortunately.  If people are continuously exposed to toxic negative messages about our candidates, elected officials, and government itself, they may become cynical and disengaged. Voters in South Carolina were reported as saying in advance of their primary that they were so sick of being bombarded by negative political ads that they might skip voting. "It's just too much," said one voter, explaining that flipping the TV channel does not offer an escape. "It's the same thing over and over again." Another voter commented that “It makes you not want to vote.”

Judge Nelson expressed a more realistic understanding of how this laissez faire approach affects voters in his dissent from the Montana Supreme Court decision upholding the State’s restrictions on corporate political spending:

… voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech.  Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.

Justice Scalia does not seem to recognize the danger that citizens will turn off and drop out of the democratic process. Elizabeth Warren and Scott Brown are to be congratulated for this attempt to raise the tone of the debate and to spare Massachusetts voters the barrage of negative attacks from outside groups, and to allow some space for the voters to hear substantive messages from the candidates.  Justice Breyer, at the same event, noted that “there are real problems when people want to spend lots of money on a candidate. . . . They’ll drown out the people who don’t have a lot of money’’. Too bad the Supreme Court currently elevates the freedom to dominate the democratic discourse over the voters’ right to hear from all speakers, leaving the voters with little choice but the “freedom” to shut off what constitutes our political debate.