Now Playing at the Supremes: Hillary the Movie (The Sequel)

hcws_2p_kl_trailer_640Most of us despise sequels, but the Supreme Court has a hankering to rehear the case of Hillary: the Movie. Today, the Supreme Court will be taking up the case for a second time — and its ultimate reviews could hold great significance for campaign financing. We have been following the case involving “Hillary: The Movie” since it first came out during the last presidential campaign. The legal dispute over the film was always more interesting than the film itself — whether this is a film or a 90-minute campaign ad. I will be discussing the case this morning on the CNN Morning show.

This is a rare September session and will be the first argument and vote for the newly minted Justice Sonia Sotomayor. This will also be the first argument of Solicitor General Elena Kagan.

The new session of the Court actually begins on the first Monday in October, but this case was first heard in March. The Court wanted to hear additional arguments and announced in June that they wanted to reexamine an earlier ruling upholding a provision of the McCain-Feingold campaign finance law.

The Court will hopefully not produce another “I know politics when I see it” standard. I previously discussed the case on this segment of NPR’s Here and Now.

The FEC ruled that the film was prohibited as a “prohibited electioneering communication.” The lower court decisions proceeded to curtail the distribution of the film by restricting the conservative group in broadcasting and promoting the movie during the presidential primaries. In July, a three-judge panel granted the FEC’s motion for summary judgment.

Specifically, the desire of the group to put the movie in TV-on-demand access on cable TV was shelved due to the FEC’s decision.

Citizen United is challenging the federal “electioneering communications” disclosure requirements in the Bipartisan Campaign Reform Act — a prohibition on corporations and nonprofits from airing broadcast ads, which refer to a federal candidate 30 days before a primary election. Citizens United is using the Court’s decision in Wisconsin Right to Life v. FEC, which exempted issue advocacy from the electioneering communications prohibition.

Watching the trailers below, it is hard to distinguish this movie from a campaign ad. However, the rulings below should trouble free speech advocates. The court found that the 90-minute campaign ad “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.” That may be so, but such a conclusion could also be reached in a perfectly legitimate documentary or parody. Consider Michael Moore’s anti-Bush documentary “Fahrenheit 9/11.”

The actual restrictions and their impact on the film are a bit more technical. The McCain-Feingold legislation requires that “any broadcast, cable or satellite communications” during the period before an election clearly state the name of the group paying for ad is one such provision.

There is no question that Citizens United, a nonprofit corporation, has a bit of an obsession and hatred for both Clintons. It is the creation of Citizens United President David N. Bossie, a long Clinton critic.

The case raises both very broad and very technical questions. The threshold question, however, is the role of the government in making this judgment call between films from Michael Moore’s Fahrenheit 911 to Hillary the Movie. Often literary works have a political purpose or message. Shakespeare’s work, particularly Richard III, has been described as a brilliant Tudor propaganda — Richard III was the last Yorkist king and vilifying the House of York was of great benefit to Shakespeare’s Tudor benefactors. Richard III was defeated by the first Tudor, Henry VII and the ancestor of Elizabeth I. In my Supreme Court seminar on the current case, my students and I discussed whether the FCC would require Shakespeare to add “Brought to you with the generous contributions of the Tudor Family.”

The vote in the class on the case was interesting. We split down the middle: Seven favored the ruling of the FCC while Seven would support Citizens United. However, the prediction of the likely outcome was heavily in favor of the Supreme Court affirming the lower three-judge panel against Citizens United.

The Court could focus narrowly on the campaign finance law’s prohibition on express advocacy of political candidates or it could sweep broadly in the the constitutional foundations for the campaign finance law itself. A rare rehearing often suggests a more sweeping intent by justices.

Seth Waxman, who is defending the law is predictably arguing stare decisis (Lat. “to stand by that which is decided”) and saying that a reversal of the earlier ruling after such a relatively short time would be “unseemly” and undermine the credibility of the Court.

Ted Olson will argue that the law has created a “chilling effect” first amendment rights and free speech. Many civil libertarians are sympathetic with those arguments — viewing the ruling as an affront to free speech. That includes Floyd Abrams a liberal defender of free speech who is representing Senator Mitch McConnell of Kentucky, the Republican leader in one of the dozens of amicus filings.

Notably, when the Court last considered this law, Justice Sandra Day O’Connor voted to supply the fifth vote upholding the law in McConnell v. FEC in 2003. Her seat is now held by Justice Samuel Alito who is expected to be highly sympathetic to the arguments of Olson on this question. If Sotomayor (as expected) votes the same way as Souter to uphold the law, that would still produce a 5-4 majority in the opposite direction — unless someone like Kennedy decides to vote on the basis of stare decisis. More directly at issue may be Austin v. Michigan Chamber of Commerce (1990), where the Court upheld restrictions on corporate spending to support or oppose political candidates. Critics have challenged that ruling as allowing the government to regulate or prohibit speech based on the identity of the speaker — in this case wealthy corporations.

Notably, Alito spoke out at the last hearing at a critical moment. In the March argument, the government argued that hypothetically the government could make it a crime to distribute books advocating the election or defeat of political candidates. The distinction that was drawn was whether it was paid for by corporate money rather than a political action committee. Alito exclaimed “[t]hat’s pretty incredible.”

I am sympathetic with Citizens United and the free speech groups. I also would bet on Citizens United prevailing though the question is whether they will take the hand or sweep the table.

For the trailers of the movie, see below:

For the full story, click here.

18 thoughts on “Now Playing at the Supremes: Hillary the Movie (The Sequel)”

  1. Having sweaty palms is a very humiliating condition and one that most sufferers try to hide it at all costs. Well, you can take heart in that you might be just a few days away from completely dry palms. That’s correct, even if other methods have not worked for you I have found an effective treatment for hyperhidrosis.

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  2. fms,

    My emotional state is not your business. I have perfect BP and heart rate of a 20 year old. As for how I choose to express myself, I’ll do it any damn way I please and if you don’t like it, you can suck it. Being that two of my degrees are in English and Law, I’m betting I can express myself in ways you’ve never even thought of so why don’t you worry about YOUR presentation instead of mine. Because much like my emotional state, what I write and how I write is, duh, also not your business.

    And you’re right, you’re not a corporation. You’re a troll.

    So any opinion you have of me is exactly meaningless.

    The “you” was “corporations” but I didn’t expect you to be smart enough to figure that out. Luckily I don’t write with clowns like you in mind as the target audience.

    I hope that answers all of your inane questions.

    Have a nice day.

  3. You confuse ‘the masses’ with ‘the people’. By “masses”, he meant the uneducated folks. If he were alive today he would know them as Republicans, though that is a bit ironic, historically.

  4. You all seem to think too highly of yourselves and, more importantly, of “the people.”

    There is a dark reality underlying this, as there always seems to be with all topics Americana; Jefferson is credited with expressing it best: The masses, are *****.


  5. I will not weep should the Supreme Court strike down the restrictions. It could even be beneficial because it will force the public to come to terms with the dangers of corporate power. Statutory limitations on spending to promote ideas simply dance around the issue without confronting it. I agree with Buddha and Jill on the evil, but I would much prefer an overhaul of corporation statutes to limit the rights of artificial “persons” and increase the responsibility, and liability, of shareholders for corporate actions.

  6. Buddha is Laughing, you come across as a very angry person. Is that just the way you have learned to express yourself?

    you said
    Play by the rules as set by We the People, not You the Corporate, or suck it. Move off shore and take your graft with you. Don’t let the door hit you in the ass on the way out.

    who is the “you” you’re talking about?

    i am not a corporation.

  7. So who really cares, oh yeah, the one that did not get a movie at an election time. Come on, it is all a game to be seen and won. was it endorsed by Hillary, this should be a key question. If so an in kind contribution if not, look at how many ads appear that state not endorsed by so and so.

  8. Here’s the opinion of Public Citizen. I would be interested in opinions on this, especially the change in what the court is actually deciding this time:

    “Tightening the Corporate Grip: The Stakes at the Supreme Court

    by Robert Weissman

    Can things get still worse in Washington?

    Yes, they can. And they will, if the Supreme Court decides for corporations and against real human beings and their democracy in a case the Court will be hearing today, Citizens United v. Federal Election Commission.

    Until reaching the Supreme Court last year, this case has involved a narrow issue about whether an anti-Hillary Clinton movie made in the heat of the last presidential election is covered by restrictions in the McCain-Feingold campaign finance law. However, in a highly unusual move announced on the last day of the Supreme Court’s 2008 term, the justices announced they wanted to reconsider two other pivotal decisions that limit the role of corporate money in politics.

    The Court ordered a special oral argument on the issue, before the full start of their 2009 term in October.

    The Court will today hear argument on whether prior decisions blocking corporations from spending their money on “independent expenditures” for electoral candidates should be overturned. “Independent expenditures” are funds spent without coordination with a candidate’s campaign. The rationale for such a move would be that existing rules interfere with corporations’ First Amendment rights to free speech.

    Overturning the court’s precedents on corporate election expenditures would be nothing short of a disaster. Corporations already dominate our political process — through political action committees, fundraisers, high-paid lobbyists and personal contributions by corporate insiders, often bundled together to increase their impact, threats to move jobs abroad and more.

    On the dominant issues of the day — climate change, health care and financial regulation — corporate interests are leveraging their political investments to sidetrack vital measures to protect the planet, expand health care coverage while controlling costs, and prevent future financial meltdowns.

    The current system demands reform to limit corporate influence. Public funding of elections is the obvious and necessary (though very partial) first step.

    Yet the Supreme Court may actually roll back the limits on corporate electoral spending now in place. These limits are very inadequate, but they do block unlimited spending from corporate treasuries to influence election outcomes. Rolling back those limits will unleash corporations to ramp up their spending still further, with a potentially decisive chilling effect on candidates critical of the Chamber of Commerce agenda.

    The damage will be double, because a Court ruling on constitutional grounds would effectively overturn the laws in place in two dozen states similarly barring corporate expenditures on elections.

    More than 100 years ago, reacting to what many now call the First Gilded Age, Congress acted to prohibit direct corporate donations to electoral candidates. Corporate expenditures in electoral races have been prohibited for more than 60 years.

    These rules reflected the not-very-controversial observation that for-profit corporations have a unique ability to gather enormous funds and that expenditures from the corporate treasury are certain to undermine democracy – understood to mean rule by the people. Real human beings, not corporations.

    In arguing to uphold the existing corporate expenditure restrictions, the Federal Election Commission has emphasized these common sense observations.

    “For-profit corporations have attributes that no natural person shares,” the FEC argues. Noting that corporations are state-created — not natural entities — the FEC explains that “for-profit corporations are inherently more likely than individuals to engage in electioneering behavior that poses a risk of actual or apparent corruption of office-holders.” The FEC also notes that corporate spending on elections does not reflect the views of a company’s owners (shareholders).

    Although the signs aren’t good, there is no certainty how the Court will decide Citizens United. There is some hope that the Court will decide that it is inappropriate to roll back such longstanding and important campaign finance rules, in a case where the issue was not presented in the lower courts, and where the litigants’ dispute can be decided on much narrower grounds.

    Public Citizen is organizing people to protest against a roll back of existing restrictions on corporate campaign expenditures. To join the effort, go to People are pledging to protest in diverse ways — from street actions to letter writing — today, and in the event of a bad decision, and also networking for solutions to corporate-corrupted elections.

    Ours is a government of the people, by the people, for the people — not the corporations and their money. Corporations don’t vote, and they shouldn’t be permitted to spend limitless amounts of money to influence election outcomes.”

  9. Unions exist ostensibly to defend and fight for the rights of worker’s and the union movement grew directly as a response to corporate abuses like the Battle of Matewan in 1920. Unions are by nature anti-corporate and pro-rights.

    Corporations are a legal fiction with the only goal being profit at any cost. They don’t give a damn about law or ethics or even their own employees as long as their P/L statement reads in black ink. Corporations by their very nature are amoral constructs that will seek fascism whenever left unattended and unregulated.

    Unions are the only organization other than natural citizens that should have any right to petition the government. Corporations should have to shut up, sit down and deal with what they are GIVEN. Play by the rules as set by We the People, not You the Corporate, or suck it. Move off shore and take your graft with you. Don’t let the door hit you in the ass on the way out. New compliant business will arise to take your stalls in the marketplace and when the rules are rewritten, we’ll give them as much legal advantage over the old corrupt corporate forms once they offshore as to make doing business in this country by a bad actor like Exxon or Halliburton will be impossible. That’s called “fair”. The corporate morons screwed with and broke our governmental processes then they should be excluded from said process other than to avail themselves of criminal court and pertinent civil litigation to their ACTUAL business transactions – not their theoretical rights as “a person” because, duh, that’s a LIE. Corporations do, after all, only exist by governmental dispensation and as such should be subject to heavy regulation and strict limits on their participation and actions. They are not real people. Restrict the Hell out them. They work better that way. Less room for abuse. Unions represent real people and are inherently democratic. Corporations are anti-democratic institutions. It’s their nature. That’s why Jefferson hated them so.

    Corporations are the problem and unions could be part of the solution.

    Apples and oranges.

    That’s the difference.

  10. I worry about this also Buddha. Corporations aren’t people and that way of legally viewing them results in many ills. I believe coporations should be stripped of the title, “person” and any rights they have accurred attending that definition.

  11. If the norm goes down, in this case Justice Kennedy may be the swing vote, again, who will decide the matter.

    Recently, in Caperton v. Massey (June ’09) he came down on the side of sanity.

  12. Unlimited independent corporate political speech is the very definition of fascism.

  13. There was a discussion of this on Bill Moyers last Friday. Here’s an opposing view and the link to the entire piece:

    “But Potter, who has defended the Bipartisan Campaign Reform Act (popularly known as “McCain-Feingold”) in the lower and Supreme Court, argues that the founders never meant for the First Amendment to apply to corporations, which he considers “creatures of the state,” not deserving the same rights as individual citizens:

    We do think speech is a good thing. The question though is should it be citizens, individuals, voters, who are speaking? Or should it be this artificial corporate entity, which we have, through law, given enormous economic power to? And what the court has said all along is there is a difference between the two. The court has never said that corporations have the right to unlimited independent political speech.”

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