TOPICS > Politics

‘Hillary’ Movie Brings Campaign Finance Law to High Court

March 24, 2009 at 12:00 AM EST
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The Supreme Court heard arguments in a case Tuesday centering on whether a documentary on Hillary Clinton should be classified as a political ad, making it subject to campaign finance laws. The National Law Journal's Marcia Coyle describes the case and its arguments.
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TRANSCRIPT

JIM LEHRER: Next, an anti-Hillary Clinton movie makes its way to the U.S. Supreme Court. Gwen Ifill has that story.

GWEN IFILL: When is a movie just a movie and when is it actually a campaign ad? That’s the question the justices are grappling with in the latest challenge to a major campaign finance law.

Here to walk us through the case, as always, is Marcia Coyle of the National Law Journal.

Welcome, Marcia.

MARCIA COYLE, National Law Journal: Thank you, Gwen.

GWEN IFILL: So this latest challenge to the McCain — there have been a lot of challenges to the McCain-Feingold campaign finance law.

MARCIA COYLE: Yes.

GWEN IFILL: Why is this one different?

MARCIA COYLE: Citizens United is a conservative nonprofit corporation that accepts some for-profit corporate funding. And this film, which was available in theaters and on DVD, ran into problems when Citizens United wanted to put it on cable television through a free on-demand service.

The Federal Elections Commission and federal district court found that the film really fell under provisions in the McCain-Feingold act that restrict so- called electioneering communications, that is, radio and television ads that feature a candidate and, if they don’t expressly advocate that you vote for or against the candidate, they’re the functional equivalent of express advocacy.

If you fall under that provision, there are limitations. Corporations and unions can’t use general treasury funds to fund the ads. The ads can’t run 30 days before a primary election or 60 days before a general election. And the sponsor has to disclose who’s actually funding the film.

Controversial content

GWEN IFILL: Now, this film in particular, it's so much different than normal films, and that's why it's such a question about whether it was a campaign ad or not, a 90-minute campaign ad or not. Just listen to a little bit of it, and then we'll talk about it on the other side.

MARCIA COYLE: OK.

NARRATOR: Hillary Clinton points to her time in the White House as a large part of her qualification for the job as president, but most of the news media has conveniently forgotten that her time as first lady was mired in controversy.

NARRATOR: The corps of the controversy is how truthful Mrs. Clinton has been in answering questions, sometimes under oath, about Whitewater and other matters.

NARRATOR: She was the first First Lady to come under criminal investigation. In both Little Rock and Washington, D.C., she was plagued by numerous scandals.

GWEN IFILL: I think it's fair to say that was almost the mildest part of this film. The rest of it is kind of an unrelenting attack. So why did the government say that this particular form violated the law as it's written?

MARCIA COYLE: Well, it fell under the definition in the law of what is an electioneering communication, according to the government. The government argued today that this was an easy case, because not only were there repeated negative comments about Mrs. Clinton, but it also repeatedly linked those comments to her candidacy for president.

Actually, both lawyers had a rough time in the court today.

GWEN IFILL: Really?

MARCIA COYLE: Citizens United's attorney Ted Olson was the first one to argue, because Citizens United brought the appeal, and he said that basically this was not express advocacy and wasn't even the functional equivalent of express advocacy. This was a documentary whose purpose was to inform and educate through a lengthy analysis of Clinton's history and record.

And he immediately ran into skepticism from several justices. Justices Souter and Ginsburg read comments from the film about Mrs. Clinton. And Justice Ginsburg concluded, if that's not an appeal to voters, I don't know what is.

But he tried to point out that there was a difference here that Congress was trying to get at those traditional 30-second, 60-second broadcast ads, not at documentary films.

Again, he ran into skepticism. Justice Kennedy didn't quite see the distinction here, because a documentary 90 minutes long, he said, could have even more of an influence on the electorate than those ads.

Funding restrictions

GWEN IFILL: How was the Citizens United argument received? Because they're asking for a pretty broad overturn of something underpinning this whole issue.

MARCIA COYLE: Well, they would -- in their briefs, they argued that they would like to see the ban on corporate funding in the law eliminated, and that would be a dramatic change, because we've had restrictions on corporate campaign spending contributions since the beginning of the 20th century, although I think they've really only been enforced in the last 30 years.

The government's lawyer also ran into difficulties today when the court put forward a whole series of hypotheticals about these restrictions, how far does the government -- could the government go here? For example, could the restrictions ban -- result in the banning of a book that's 500 pages long, has nothing to do with campaigns, but at the end has one line saying, "Vote for X"?

Or, Justice Kennedy said, what about a book that appears on a Kindle and it's express or campaign advocacy? Could those restrictions apply here?

And the government argued that, yes, Congress could restrict those, although this law only applies to television and radio ads. The point the government...

GWEN IFILL: Which reaches 50,000 or more people, right?

MARCIA COYLE: Exactly. The point the government -- what was important, according to the government, was that this law is attacking the funding of the ads, you know, not prohibiting the book or the ad, but how it's paid for. Corporations and unions can use political action committee funds to do this, but not large, in most cases, general treasury funds.

Justice Scalia made an interesting point, too, towards the end of the argument. He questioned whether the First Amendment concerns here might be more serious when government is trying -- and this was his word -- to stifle not only the speaker, which would be Citizens United, but the listener here, because on- demand services, the viewer, the listener, makes a conscious choice to see the film.

GWEN IFILL: So a free speech issue, rather than just a campaign finance issue, is what he's saying?

MARCIA COYLE: That's correct. Well, these cases all -- why they're so difficult for the court is that they involve two very important competing interests: the public's interest and the government's interest in eliminating corruption or even the appearance of corruption in elections and then, of course, the free speech interests of all the participants in our election system.

GWEN IFILL: Well, we'll be waiting anxiously for this particular judgment. Thank you, Marcia Coyle.

MARCIA COYLE: My pleasure, Gwen.