Court focuses skeptical eye on McCain-Feingold

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The Supreme Court seemed ready yesterday to trim back the McCain-Feingold campaign law yet again on First Amendment grounds.

The Court heard spirited arguments in the case of Citizens United v. Federal Election Commission, which challenged the regulation of its 2008 documentary “Hillary: The Movie” as a campaign ad.

The 90-minute movie rehashed the scandals Hillary Clinton and her husband, former President Bill Clinton lived through over the years, and was shown in theaters and sold as DVDs. But when Citizens United, the conservative nonprofit corporation that produced the film, sought to advertise the movie on TV and distribute it through video-on-demand, it ran into trouble.

A three-judge district court panel in D.C. ruled that the film was an “electioneering communication” — similar to a 60-second TV ad — subject to the financing and disclosure regulations of McCain-Feingold. Funding for such broadcast communications cannot come directly from a corporation or union treasury, under the 2002 statute.

Citizens United’s lawyer Theodore Olson said applying the law to what amounts to a documentary stifles free speech by imposing on it “one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.” The Roberts Court has ruled against provisions of McCain-Feingold in the 2007 decision Federal Election Commission v. Wisconsin Right to Life and last year in Davis v. Federal Election Commission.

The movie, Olson added, is “the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee.” He repeatedly cited a brief filed in the case by the Reporters Committee for Freedom of the Press, which said the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.”

But several justices challenged Olson, indicating they accepted the government’s argument that because it disparaged Clinton’s fitness to serve as president during the campaign, it was the equivalent of an electioneering communication or campaign ad, no matter how long it was.

Noting the film’s unrelenting criticism of Clinton, Justice Ruth Ginsburg said at one point, “If that isn’t an appeal to voters, I don’t know what is.”

It was not until Deputy Solicitor General Malcolm Stewart rose to defend the law, ironically, that Olson’s arguments seemed to gain support.

Justice Samuel Alito Jr. asked Stewart whether the restrictions of McCain-Feingold could constitutionally apply to a book version of the movie, as well as other forms of distribution. When Stewart said yes, Alito said, “That’s pretty incredible. You think that if … a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

Not banned, Stewart said, but Congress could prohibit its publication using corporate treasury funds. “Well, most publishers are corporations,” Alito replied.

Justice Anthony Kennedy then asked if an advocacy organization could publish such a book and distribute it via satellite through Amazon’s Kindle device. Stewart said that too could be subject to regulation.

Roberts followed with another hypothetical that resulted in the same answer from Stewart that the government could halt publication of a book using corporate treasury funds under some circumstances.

That specter of government book-banning did not appear to sit well with the justices, and Justice Stephen Breyer, a firm supporter of campaign-finance laws, tried to change the subject with a new line of questioning.

But Roberts came back to it, telling Stewart, “If we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book” if paid for by a corporation.

The damage seemed to have been done, and the Roberts Court suddenly appeared ready to rule against McCain-Feingold.

Election Law blogger Rick Hasen, a professor at Loyola Law School in Los Angeles, said the book-banning discussion “really took the wind out of Stewart’s sails,” and Stewart should have deflected the questions or equivocated. But Hasen said the Court could easily decide the case without getting into whether the government could ban books funded by corporations.

In spite of the damaging exchange, Justices Breyer and Ginsburg, as well as John Paul Stevens, still appeared supportive of the government’s categorization of the film as an electioneering communication similar to the shorter attack ads Congress was trying to prohibit. If an ad is “the functional equivalent of express advocacy” for or against a candidate, the Court has ruled in the past that it can be restricted.

But Stewart’s concessions about book-banning resonated even after the arguments.

Institute for Justice lawyer Steve Simpson, whose group filed a brief against the law, said, “When the government is taking the position that it can ban books because they are financed by corporations, it is time to scrap the campaign-finance laws. This is America. We don’t ban books here.”