Hillary: The Movie: The critics rave.
"This film, which I saw—it is not a musical comedy."
—Justice Stephen Breyer
"As Justice Breyer said, it's not a musical comedy."
—Justice David Souter
In 2008, a conservative group called Citizens United produced Hillary: The Movie, a 90-minute documentary in which Hillary Clinton, then seeking the Democratic presidential nomination, is variously described as "deceitful," "ruthless," and "cunning," as well as "dishonest," "reckless," a "congenital liar," and "not qualified as commander in chief." For ideological balance, Dick Morris says that "Hillary is the closest thing we have in America to a European socialist." The movie did not expressly urge voters to vote against her. It simply implied that friends don't let friends vote for evil people.
Citizens United released the film in six theaters and on DVD, actions not subject to federal regulation. But when they sought to distribute the film by paying $1.2 million to sell it through a video-on-demand service, the Federal Election Commission contended that the film was no different from the kind of "electioneering communication" regulated under the McCain-Feingold campaign finance law. That was the 2002 statute that tried to limit the influence of big money on elections. If subject to the constraints of McCain-Feingold, the film could not be financed by corporate treasuries or broadcast within 30 days of a primary or 60 days of a general election. The federal court of appeals agreed with the FEC, finding that the movie could be interpreted as nothing but an effort to "inform the electorate that Senator Clinton is unfit for office." Citizens United appealed.
The question for the high court in Citizens United v. Federal Election Commission is whether the film is more like a 90-minute version of one of those swift-boat ads or more like The Federalist—core political speech that warrants the highest level of constitutional protection. At oral argument this morning, the government—seemingly unafraid of the latter comparison—takes the position that in the right circumstances, even books can be banned under campaign finance laws. And that's when the justices start hyperventilating.
Former Bush administration Solicitor General Ted Olson represents Citizens United, and because the justices had just screened the virulently anti-Clinton film, his claims that the movie simply "informs and educates" the public about important issues are generally met by stony silence. Nobody really thinks it is an episode of 60 Minutes. Olson does get the bunch hopping when he characterizes McCain-Feingold as "one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state." Olson notes that the Reporters Committee for Freedom of the Press (which he accidentally calls "the Reporters Committee for the Right to Life") filed a brief on his side of the case urging that the Hillary movie "is indistinguishable from other news-media commentary." (Disclosure: I am on the steering committee of the Reporters Committee for Freedom of the Press; I am still wait-listed for Reporters Committee for the Right to Life.)
Several of the justices seem bothered by Olson's claim that Hillary did not represent electioneering. "This sounds to me like campaign advocacy," insists Justice David Souter. Justice Ruth Bader Ginsburg adds, "If that isn't an appeal to voters, I can't imagine what is." To which Olson replies that the film is merely "a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, Justice Souter, was running for office." But Justice Anthony Kennedy observes that a 90-minute attack ad is pretty much by definition more potent than a 30-second one: "[I]f we take this as a beginning point—that a short, 30-second campaign ad can be regulated—you want me to write an opinion and say, well, if it's 90 minutes, then that's different. It seems to me that you can make the argument that 90 minutes is much more powerful in support or in opposition to a candidate."
Olson seems to be of the view that a good way to peel off five votes at the court is by berating the justices about the general twirliness of the campaign finance laws, as evidenced by the fact that "since 2003, this court has issued something close to 500 pages of opinions … and 22 separate opinions from the Justices of this Court attempting to figure out what this statute means." A defensive Chief Justice John Roberts observes that the statute gives the court "mandatory appellate jurisdiction"—it has to hear these cases. A tetchy John Paul Stevens snaps: "And maybe those cases presented more difficult issues than this one!"
Note to Olson: Don't tell the justices they are too stupid to understand McCain-Feingold.
Deputy Solicitor General Malcolm Stewart rises to argue the case for the FEC. His job is to persuade the court that they can and should ban 90-minute attack ads. But when Justice Samuel Alito asks whether the government—if it can regulate documentaries—might also regulate a book containing "express advocacy" prior to an election, Stewart agrees that it might.
"That's pretty incredible," splutters Alito. "You think that if—if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Not banned, clarifies Stewart. Congress could just "prohibit the use of corporate treasury funds" to publish it. Oh, Malcolm Stewart. Malcolm Stewart. With your Macbeth-y first name and your Macbeth-ier last name. You did not just say the government might engage in a teensy little bit of judicious, narrowly tailored book-banning, did you?
At this point, a horrified Anthony Kennedy gets even paler than his usual pale self: "Is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view? … If this Kindle device where you can read a book which is campaign advocacy, within the 60- to 30-day period, if it comes from a satellite, it can be prohibited under the Constitution and perhaps under this statute?" Again Stewart clarifies that it wouldn't be banned, but a corporation could be barred from using its general treasury funds to publish such a book and would be required to publish it through a PAC. The chief justice seeks to clarify that this would be so even in a 500-page book with only one sentence that contained express advocacy. Stewart cheerfully agrees. The chief justice wonders whether this would apply even "to a sign held up in Lafayette Park saying vote for so-and-so." Stewart doesn't quite say no.
Justice Breyer keeps trying to shake Stewart over his head—like an Etch A Sketch—to erase the noxious image of government-sponsored book banning and get him to stop chatting about issues that are not before the court. But it's too late. Now Souter looks even paler than Kennedy.
For the past few years, the Roberts court has been slowing chipping away at McCain-Feingold, with Justices Roberts and Alito tapping on the brakes as Kennedy, Scalia, and Thomas revved the motor. But it seems to me that all this talk of book banning and government regulation of signs in Lafayette Park is a pretty good way to get all five of them in the mood to run down yet more restrictions on political advertising. And maybe even back up and do it again.