Last week, the Supreme Court heard oral arguments in the matter of Citizens United v. The Federal Election Commission, Case no. 08-205.
This is an interesting case in that the Court, among other things, needs to determine whether Hillary: The Movie, a 90 minute documentary about Hillary Clinton’s presidential campaign with a decidedly conservative bias, is considered an “electioneering communication,” or a political editorial protected under the First Amendment.
If the Court finds that Hillary is electioneering communications for the purpose of Bipartisan Campaign Reform Act of 2002 (“BCRA”) (aka “The McCain-Feingold law”), then the Federal Election Commission was right in blocking Citizens United, the conservative not-for-profit group that made the documentary, from accepting an offer from NCC, a company owned by three large cable corporations, to distribute the documentary through the Video On Demand feature available to digital cable subscribers during 2008’s election season.
The BCRA was intended to curb the influence of soft money contributions in the democratic process. Often, candidates used these contributions to create commercials that either endorsed their candidacy, or attacked their opponents. Candidates with disproportionately less wealth than their opponents were less visible during the election cycle. Moreover, prior to the passing of BCRA, candidates for federal office were not required to disclose to the public the source of their funding. The BCRA placed limits on a narrow category of communication, electioneering communication, in order to limit the inordinate influence a wealthy candidate could have in using media to sway voters. By placing a limited bar on this type of communication, Congress hoped to maintain the democratic process, where candidates, regardless of wealth, had an equal voice, and an equal opportunity to influence voters.
Electioneering communication is any communication broadcast via television or radio, cable or satellite which refers to a candidate for federal office, within 60 days before the general election, or 30 days before the primary election. 2 U.S.C. § 434(f)(3)(A). The BCRA excludes, however, communications about a specific candidate if the communication is part of a news story, commentary, or editorial that is broadcast on television or radio, cable or satellite, and is not owned or controlled by any political party, committee or candidate. Id. at (B).
The Federal Elections Commission claims that the On Demand broadcast Hillary is covered under BCRA because the documentary’s content constitutes express advocacy or its equivalent. The United States District Court for the District of Columbia agreed with this argument, finding that “[t]he [m]ovie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” Citizens United v. Federal Elections Commission, 2008 WL 2788753, (D.C.D.C. Jan. 15, 2008).
Citizens United claims that Hillary is not covered under BCRC because the documentary “does not urge viewers to vote for or against Senator Clinton in the Democratic Presidential primaries.” Brief for Appellant. Instead the documentary “recounts significant events during her time as a U.S. Senator and First Lady in order to inform viewers about her political background.” Id. Citizens United argues that this expression is protected by the First Amendment because the film contains commentary and editorials opinions about a political issue, similar to books about candidates published during election season, or interviews with pundits during the same time on talk shows such as Meet the Press. Id.
Additional information about this case can be found at:
Supreme Court Docket
Transcript of Oral Arguments
The District Court Opinion
Text of BCRA
Citizens United Appellant Brief
United States Government Appellee Brief
Citizens United’s Reply Brief
Hillary the Movie
Reporters Committee for Freedom of the Press’ Coverage, I and II
Associated Press Article
New York Times Article
Washington Post Article
Fox News Story
MSNBC Story and Video
Los Angeles Times Editorial