Arguments this week before the US Supreme Court in Citizens United v. FEC have provided some legal red meat for those interested in overlapping First Amendment and Campaign Finance laws. Click here for the NYT story and here for the Legal Times story.
At issue is whether Hillary: the Movie, a so-called ‘documentary’ about Hillary Clinton that was aired days before a Democratic Primary, should be constitutionally protected free speech or electioneering speech regulated by McCain-Feingold. A lower court held that the production did, in fact, violate McCain-Feingold.
During oral arguments, Malcolm Stewart, the attorney for the federal government argued that political productions – whether movies or books or signs or websites – should be regulated as election-based productions and not be allowed to circumvent campaign finance laws because their “campaign attacks” occupy a different form. The SCOTUS did not seem to like Stewart’s logical extension.
Because a government lawyer pushed his argument as far as logic would carry it, an alarmed Supreme Court on Tuesday seemed poised to create a new exception to federal power to regulate what advocacy groups can say during national political campaigns. At a minimum, a 90-minute documentary, even though a bitingly critical attack on a specific candidate, leaving little doubt of what it wanted voters to do, may wind up with constitutional protection, it appeared after the Court had heard Citizens United v. Federal Election Commission (08-205). But, if that is the outcome, federal regulation of other forms of campaign expression may be put in doubt anew.
When the argument turned to such First Amendment horrors as banning books, banning Internet expression, and banning even Amazon’s book-downloading technology, “Kindle,” the members of the Court seemed instantly to recoil from the sweep of arguments made by Deputy Solicitor General Malcolm L. Stewart.
Even Justice David H. Souter, who tends to support government regulation of campaign spending, looked and sounded stunned when Stewart argued that the government would have power to forbid a labor union to use its own funds to pay an author to write a campaign biography that would later be published in book form by Random House. And, across the bench, incredulity showed when Stewart said the government could ban an advocacy group from using its own funds to pay for a 90-minute documentary if only the first minute was devoted to urging voters whom to choose, and the rest was a recital of information about the candidate without further direct advocacy.
Still, the outcome of the Citizens United case might be less sweeping than attorney Theodore B. Olson had wanted as he defended that group’s political documentary aimed at Sen. Hillary Rodham Clinton during the last presidential campaign. There appeared to be no sentiment for removing all federal controls on spending by corporations and labor unions at election time, and little visible support for striking down altogether a key section of the 2002 campaign finance law dealing with corporation and union political communications.
Look for the SCOTUS to issue an opinion on the case sometime in late spring or early summer.