Hillary: The Supreme Court Rehearing

Opponents of the Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold, have long had to take the awkward position of arguing that in a one-man-one-vote capitalist democracy, dollars are the equivalent of speech.

In a highly unusual rehearing of a case they originally considered last March, the Supreme Court on Wednesday will consider if restrictions on partisan ads produced by independent groups, unions, and corporations violate the First Amendment. That the justices declined to decide the case last term indicates they have something more profound to say about McCain-Feingold. Opponents of the law are betting that the court will finally declare that speech is speech, and it cannot be restricted simply because it’s an election year.

At the center of this fight is the documentary Hillary: The Movie, produced before the 2008 presidential election primary season by the conservative nonprofit group Citizens United. In trailers and promotional ads for the movie, an announcer ominously warned, “If you thought you knew everything about Hillary Clinton, wait until you see the movie.” The ads also featured such well-known Clinton antagonists as Dick Morris, who was shown saying, “Hillary is the closest thing we have in America to a European socialist.”

The appellee in the case, the Federal Election Commission, argued that ads for the film and the film itself were the equivalent of campaign ads. Under the statute in question, ads and trailers for Hillary: The Movie could not be transmitted via broadcast, satellite, or cable 30 days before the primary or 60 days before the general election. The film landed in only a handful of theaters, but Citizens United also wanted to make it available on cable via video on demand.

Citizens United has been a minor player in campaigns since 2004, when it produced a documentary attacking John Kerry. It has since gone on the air with ads criticizing John McCain as too liberal, and, in an ironic twist, it filed an FEC complaint in 2004 over ads promoting Michael Moore’s Fahrenheit 9/11. (The complaint was dismissed.)

In December 2007, the group filed a motion with the U.S. District Court for the District of Columbia requesting a preliminary injunction against FEC regulation of its ads and challenging the relevant statutes. The following month, a three-judge panel denied the motion, finding that the ads, trailers, and films could be regulated as “electioneering communications.”

The Supreme Court’s decision to hear Citizens United’s appeal barely went noticed during last year’s smashmouth presidential campaign. But the justices’ skeptical reception of the FEC’s argument pricked the attention of campaign-finance watchers in March. When the court later ordered reargument and announced it would also reconsider a 1990 decision governing corporate spending on campaigns, the friend-of-the-court briefs flooded in.

The entire point of campaign-finance regulations is to level the playing field, but the playing field is changing in rapid and unpredictable ways. McConnell v. FEC, the last case in which the court upheld McCain-Feingold, was considered one year before the seminal Fahrenheit 9/11 hit the theaters. Since then, activists like the conservative Swift Boat Veterans for Truth and the liberal filmmaker Robert Greenwald have pounced on the documentary game.

So even if one is sympathetic in spirit to McCain-Feingold, new technologies and the breakdown of traditional media might simply make it impossible for Congress to keep apace. News broadcasters are specifically exempted by the law, but several broadcasters associations and journalist groups filed briefs supporting Citizens United.

“A growing number of journalists distribute their work in ways that do not appear to fall within [the Section 203] exemption,” the Reporters Committee for Freedom of the Press wrote in an amicus brief for Citizens United. “The technology journalists use to disseminate their content is rapidly changing, and there is an accompanying resurgence in independent content—blogs, documentaries, nonprofit journalism, and niche publications of many sorts.”

“Hillary: The Movie does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history,” the RCFP declared.

During oral arguments last March, a majority of the justices indicated they were not comfortable being in the business of deciding when a movie is an “electioneering communication” and when it’s just a movie—or an advertisement for a product or even a book.

“Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period—the 60/30-day period?” asked Justice Anthony Kennedy, still considered to be the court’s swing vote.

Deputy Solicitor General Malcolm Stewart answered: “If the book contained the functional equivalent of express advocacy.”

Campaign-finance advocates are right to fear a tidal wave of election-year messaging from moneyed interests at a time when voters already feel they’re beyond the saturation point.

“Acceptance of Citizens United’s positions would open the door to essentially unlimited corporate- and union-funded election advocacy and would eviscerate disclosure provisions designed to alert the electorate to the interests that finance election-related messages,” argued Senators John McCain and Russell Feingold and former Representatives Christopher Shays and Martin Meehan in an amicus brief.

If the court takes the air out of McCain-Feingold, there will be tremendous interest in the effect—if any—on voter behavior. What the justices ultimately may be communicating with regard to this case, however, is that the political messaging voters choose to ingest and the effect that content has on their behavior does not fall within the government’s purview. With the FEC out of the way, corporations in the persuasion business might just get the greenlight to declare open season on voters right up until Election Day.

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Jane Roh is a reporter with Gannett New Jersey.