Supreme Court considers anti-Clinton movie

WASHINGTON -- When a special three-judge panel considered the scathingly critical Hillary: The Movie last year, the judges deemed it a campaign ad with the unmistakable message that people should vote against then-presidential candidate Hillary Rodham Clinton because she "is unfit for office."

The conservative Citizens United, which produced the 90-minute movie partly with corporate funds, said it was merely making a documentary about the issues. The court rejected that argument and agreed with the Federal Election Commission that the movie was subject to campaign-financing law restricting when messages can be aired and advertised.

Now the issue is before the U.S. Supreme Court with the potential to greatly affect the regulation of political speech by corporate, labor and other big-money interests. If Citizens United wins its most sweeping argument, the result could be a flood of corporate money in upcoming elections.

If the Supreme Court curtails rulings of earlier decades allowing limits on big donors, the case could end up "a blockbuster," says Richard Hasen, a Loyola Law School-Los Angeles professor and election law expert. "For generations, federal law has limited the ability of corporations and unions to use their enormous wealth to influence federal elections. If (key court precedent) were reversed, I expect hundreds of millions of dollars of corporate and union money to pour into … races."

At its narrowest, the case to be argued Tuesday tests whether Hillary: The Movie is a corporate "electioneering" message so it could not have been shown, as Citizens United wanted, through a cable television video-on-demand service during the primary election season.

More broadly, the case tests government's ability to limit corporate and union spending without impinging First Amendment speech rights.

The dispute is the latest in a series of challenges to the 2002 Bipartisan Campaign Reform Act, which passed after years of wrangling and is often known by the names of its lead Senate sponsors, Arizona Republican John McCain and Wisconsin Democrat Russ Feingold.

In the law were tighter restrictions on corporate election contributions and enhanced disclosure rules for contributors.

The high court has signaled in recent cases, including in a 2007 dispute, that it may do more scrutinizing of such rules that limit corporate interests' political speech.

David Bossie, president of Citizens United, says he was inspired to make Hillary: The Movie by Michael Moore's 2004 documentary Fahrenheit 9/11.

"I saw the enormous impact a documentary film could have on political discourse, conservative or liberal," said Bossie, a longtime foe of Hillary Clinton who in the 1990s was an investigator on a House committee probing alleged Clinton White House wrongdoing.

Citizens United, a non-profit advocacy group that has produced other movies on causes such as illegal immigration, is represented by former solicitor general Theodore Olson, a onetime vocal Clinton critic himself.

Olson is taking a dual approach before the court: arguing that Hillary: The Movie was not a campaign ad to get viewers to vote against Clinton in the Democratic primaries but rather a recounting of events of her time as U.S. senator and first lady, and arguing that the court should rule certain limits on corporate spending barred by the First Amendment.

The movie, released through theaters and DVD sales in early 2008, is a fast-paced collection of news footage and commentary against Clinton, now secretary of State. She is called ruthless and deceptive, and the only nice words are offered, ironically, by conservative critic Ann Coulter: "Looks good in a pantsuit."

Bossie says Citizens United sought to provide a full picture of Clinton as a Democratic Party leader, not as a candidate. The movie covers controversies involving the firing of the White House travel office staff in 1993, the failed health care plan and presidential pardons.

The Federal Election Commission said the movie fell under a provision of the 2002 law that bars corporations and labor unions from financing any "broadcast, cable or satellite communication that refers to a candidate" within 30 days of a primary election or convention.

That restricted Citizens United from making the movie available through video-on-demand broadcasts and from advertising it on TV during primary season.

A related question for the court is whether disclosure and reporting requirements of the 2002 law can be applied to ads for the film.

The U.S. Justice Department, defending the campaign law, characterized the movie as a clear "appeal … to vote against Senator Clinton for president."

"Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States," acting U.S. Solicitor General Edwin Kneedler says in the government's brief.

The Justice Department took the same position in 2008, during the Bush administration, when the case began.

Olson counters that the movie differs from the usual campaign messages financed by corporate interests that government seeks to restrict.

"Although (a) compelling anti-corruption interest may be served by government restrictions on 30- or 60-second broadcast advertisements that constitute express advocacy," Olson wrote, "that interest is categorically inapplicable to … feature-length movies" a viewer has specifically requested on cable.

Most significantly for future cases, he has asked the court to overturn a 1990 decision that allows government to limit corporate spending on elections because of the potentially "corrosive" effect and that requires corporations to set up separate, independent funds for political spending.

The high court has been narrowly divided, particularly in recent years, over how far government may go to regulate campaign speech.

In 2003, the court broadly upheld the 2002 campaign-financing law. Four years later, with new members Chief Justice John Roberts and Justice Samuel Alito, the court scaled back a provision that curtailed so-called issue ads financed by corporations and unions before an election.

Roberts said, "The First Amendment requires us to err on the side of protecting political speech rather than suppressing it."