STEVE INSKEEP, host:
Today, the justices of the Supreme Court become the ultimate film critics. They sit in judgment of a movie about Hillary Clinton. Its producers are using it to challenge the McCain-Feingold campaign finance law. So, now there is a possibility of up to nine thumbs up or thumbs down.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: During the 2008 presidential primary campaign, a conservative advocacy group called Citizens United produced "Hillary: The Movie." The 90-minute documentary was available on DVD; came and went quickly in the theaters. And the group wanted to run it on cable TV as an on-demand movie. The group maintained it was not subject to federal campaign rules because the movie did not say explicitly that people should vote for or against Hillary Clinton.
(Soundbite of movie, "Hillary: The Movie")
Unidentified Man #1: She's no Richard Nixon. She's worse.
Unidentified Man #2: Vindictive.
Unidentified Woman #1: Venal.
Unidentified Woman #2: Sneaky.
Unidentified Man #3: Intolerant.
Unidentified Man #4: Scares the hell out of me.
TOTENBERG: A three-judge federal court here in Washington did not buy the argument that this wasn't campaign electioneering. It ruled unanimously that there's only one way the movie could be interpreted, quote: to inform the electorate that Senator Clinton is unfit for office. Thus, the court said, the movie is covered by a variety of provisions in the McCain-Feingold law.
The producing organization must publicly disclose who paid for the movie, and any broadcast ad for it 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.
That doesn't mean that a movie like this couldn't be shown, observes Scott Nelson, who represents Senators McCain and Feingold.
Mr. SCOTT NELSON: There's no prohibition on running any kind of political advertising, it's just a question of how it's funded.
TOTENBERG: Here, Citizens United used its corporate funds and corporate contributions. But federal campaign laws bar such use of general treasury funds from corporations or unions, the reason 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, and 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 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's also an attack on the notion, first put forth by the Supreme Court over a hundred years ago, that corporate contributions from general treasury funds can be banned.
Representing Citizens United in the Supreme Court today is Ted Olson, who as solicitor general in the Bush administration, successfully defended the McCain-Feingold law in the Supreme Court. This time he's on the other side, attacking the law as it's been applied, and contending that corporations should be allowed to spend unlimited amounts of their general treasury funds in campaigns.
Mr. TED OLSON (Former Solicitor General): What is the matter with corporations? Are they inherently evil? Corporations, just as much as individuals, are entitled to protection under the First Amendment.
TOTENBERG: Citizens United, he says, should be even more protected in its right to express its anti-Hillary opinions because it is a small, ideological, nonprofit corporation that got only a tiny percent of its money for this movie from other corporations.
Former Federal Election Commission General Counsel Larry Noble counters that this case is not really about small, nonprofit corporations and their corporate contributors.
Mr. LARRY NOBLE (Former General Counsel, Federal Election Commission): What Citizens United is doing here is, it's actually making a broadside attack on the corporate prohibition.
TOTENBERG: Citizens United is also challenging the requirement that the organization disclose its identity in ads, and that it publicly disclose its funders. Again, lawyer Ted Olson.
Mr. OLSON: The Federalist Papers, which some people will call political propaganda, those were written under assumed names. People are entitled in this country to put out their views without having to disclose whose views it is.
TOTENBERG: But former FEC counsel Noble maintains this case is really an effort to roll back most campaign-finance regulations.
Mr. NOBLE: 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.
TOTENBERG: 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.
Nina Totenberg, NPR News, Washington.
INSKEEP: You hear Nina's Supreme Court reporting on MORNING EDITION from NPR News.
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