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.