The Supreme Court heard arguments Tuesday in a case that could negate much of the McCain-Feingold campaign finance law. The producers of a documentary about Hillary Clinton argued their constitutional rights would be violated if they had to follow the law's rules that apply to campaign ads.
From NPR News this is ALL THINGS CONSIDERED. I'm Robert Siegel.
In the Supreme Court today, a debate about the movies, sort of. Producers of a withering 90 minute movie critique of Hillary Clinton argued that part of the McCain-Feingold Campaign Finance Law is unconstitutional. A conservative group produced the film and wanted to air it on cable during the presidential primary season. But the Federal Election Commission and the Lower Federal Court said no, because the producers didn't comply with election laws.
Unidentified Man #1: She's no Richard Nixon. She's worse.
Unidentified Man #2: Vindictive.
Unidentified Woman: Venal. Sneaky.
Unidentified Man #2: Intolerant.
Unidentified Man #3: Scares the hell out of me.
TOTENBERG: A three-judge federal court ruled the film is subject to only one interpretation: to inform the electorate that Senator Clinton is unfit for office, thus the movie is covered by a variety of provisions in the McCain-Feingold law. No corporate or union funds can be used and the funders must be publicly disclosed.
Because Citizens United, the conservative group that produced the movie, failed on both counts, and because the U.S. Supreme Court has previously upheld these provisions as constitutional, the producers could not buy time on cable TV to show the film 30 days before a presidential primary.
The composition of the Supreme Court today, however, is far different than it was six years ago when the justices upheld the constitutionality of McCain-Feingold. Two new Bush appointees now sit on the court, and today those appointees along with other justices seemed decidedly hostile to the statute.
Chief Justice Roberts suggested that the Supreme Court did not previously consider the question of long-form attack ads. Justice Alito asked what the difference is between providing this movie via on-demand cable service and providing it on the Internet or in a book?
Deputy Solicitor General Malcolm Stewart replied that Congress could have applied the same restrictions to other media, as well, but the law provided exemptions for the print media and the Internet.
Justice Alito, leaning forward: That's pretty incredible. You think that if a campaign biography were published it could be banned?
Answer: I'm not saying it could be banned. I'm saying Congress could ban the use of corporate funds to publish it.
Well, what about a Kindle, asked Justice Kennedy.
Or a printed sign, asked Chief Justice Roberts.
Justice Breyer tried to rescue the situation: Of course, the government can't ban expression of political views. The question is how you pay for it.
For decades, federal campaign laws have banned corporations and unions from funding campaign ads. But today the justices seemed to flirt with the idea of striking down that provision, at least for long-form ads, like this one on radio or TV.
Lawyer Stewart turned next to the question of disclosing the identity of funders. The law requires full disclosure, he said. Except if the funders can show a legitimate fear of reprisal.
Chief Justice Roberts: But then the horse would already be out of the barn. You can only prove you're reasonably the subject of reprisals once you've been the victim of reprisals.
Arguing the other side of the case on behalf of the anti-Hillary group today was lawyer Ted Olson. He told the justices that the group's First Amendment right to express itself is being smothered by, quote, "One of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state."
Justice Souter: If this documentary were produced by General Motors, would your argument be the same?
Olson said, No it would not.
Justice Souter: Then how would we draw the line between this and corporate political activity banned under the law? Why couldn't your group have produced and aired the same film using funds from a political action committee?
Justice Breyer: This movie is not a musical comedy, after all.
Answer: Setting up a political action committee and reporting contributions would be burdensome for a small organization like this. Long-form ads, said lawyer Olson, are different from short 30-second ads. A 90-minute version is protected political expression and cannot be regulated.
Justice Kennedy: If a short 30-second or one-minute ad can be regulated, you want me to write an opinion that says, well, if it's 90 minutes then that's different? It seems to me 90 minutes is a lot more powerful.
In short, Kennedy seemed to be suggesting: either it's all constitutional or all unconstitutional.
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Hillary: The Movie, a slashing critique of then-Sen. Hillary Clinton, is taking center stage Tuesday at the U.S. Supreme Court, where the film's producers are using it to challenge the McCain-Feingold campaign finance law.
During the 2008 presidential primary campaign, a conservative advocacy group called Citizens United produced Hillary: The Movie, a 90-minute documentary that was available on DVD and came and went quickly in theaters. The group wanted to run it on cable TV as an on-demand movie and maintained that it was not subject to federal campaign rules because the movie did not say explicitly that people should vote for or against Clinton.
A three-judge federal court in Washington didn't buy the argument that the movie wasn't campaign electioneering. It ruled unanimously that there is only one way the movie could be interpreted: "to inform the electorate that Sen. Clinton is unfit for office." Thus, the court said, the movie is covered by a variety of provisions in the McCain-Feingold law.
That means the producing organization must publicly disclose who paid for the movie, and any broadcast ad must have a tag line disclosing the sponsoring organization and disclaiming any connections to any candidate's campaign. In addition, the court said, the movie could not be broadcast 30 days before a primary election.
But that doesn't mean that a movie like this couldn't be shown, says Scott Nelson, who represents Sens. John McCain and Russ Feingold.
"There's no prohibition on running any kind of political advertising," he says. "It's just a question of how it's funded."
The Money Behind The Movie
In the case of Hillary: The Movie, Citizens United used its general treasury corporate funds and corporate contributions. But federal campaign laws bar such use of general treasury funds from corporations or unions — the reasoning being, among other things, that these funds belong to all the shareholders or union members, and the movie may not reflect all of these people's views.
The Supreme Court has also said that unlimited and undisclosed corporate and union money can corrupt and distort the system, so the law requires corporations or unions to set up separate political action committees that collect contributions from individuals for use in campaigns. Those contributions are publicly reported.
The Supreme Court has, for decades, upheld this overall scheme, and just six years ago it upheld new and broader restrictions in the McCain-Feingold law. Since then, though, the membership of the court has changed, and with the support of the two new Bush appointees, the court has begun to erode the law's restrictions.
Now this case, involving the Hillary movie, has morphed into a broad attack on McCain-Feingold again. It is also an attack on the notion, first put forth by the Supreme Court more than 100 years ago, that corporate contributions from general treasury funds can be banned.
Taking The Other Side
Representing Citizens United on Tuesday is Ted Olson, who as solicitor general in the Bush administration successfully defended the McCain-Feingold law in the Supreme Court six years ago. This time he is on the other side, attacking the law as it has been applied and contending that corporations should be allowed to spend unlimited amounts of their general treasury funds in campaigns.
"What is the matter with corporations? Are they inherently evil? Corporations — just as much as individuals — are entitled to protection under the First Amendment," Olson says.
Citizens United, Olson says, should be even more protected in its right to express its anti-Clinton opinions because it is a small, ideological nonprofit corporation that got only a tiny percentage of its money for this movie from other corporations.
But Larry Noble, former general counsel for the Federal Election Commission, counters that this case is not really about small nonprofit corporations and their corporate contributors.
"What Citizens United is doing here is its actually making a broadside attack on the corporate prohibition," Noble says.
Citizens United is also challenging the requirement that the organization disclose its identity in ads, and that it publicly disclose its funders.
"The Federalist Papers, which some people would call political propaganda — those were written under assumed names," Olson says. "People are entitled in this country to put out their views without having to disclose whose views it is."
But Noble observes that this case is an effort to roll back most campaign finance regulations.
"So, ultimately, I think what they're going for is a system that would be wide open in terms of the money used and would have very little disclosure," he says.
There are many ways short of that in which Citizens United could win this case, but the organization makes no secret of its desire for a broad ruling that would gut McCain-Feingold and other campaign reform measures.