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.